"Is the Constitution any good?" That's the question Paul R. DeHart considers in his new book Uncovering the Constitution's Moral Design. It may seem like an odd question or, at least, an incomplete question: good for what? Ensuring peace and stability? Protecting civil liberties? No; DeHart is after something deeper. He wants to know if the "Constitution's normative framework [is] philosophically sound. Does it make moral assumptions that correspond to moral reality, whatever that reality happens to be?" For DeHart, the Constitution is good if it embodies true moral principles.
While the title might suggest that the book is primarily about constitutional interpretation, what emerges is a much broader discussion of analytic philosophy, metaphysical and moral realism, natural teleology, and moral theory. An assistant professor of political science at Lee University, DeHart builds on the work of Hadley Arkes, J. Budziszewski, and the analytic philosopher Robert Koons. The result is a unique blend of Budziszeski's What We Can't Not Know approach to natural law thinking, Arkes's "logic of morals" going Beyond the Constitution, and Koons' philosophical Realism Regained.
DeHart begins his investigation by discussing methodology. The intellectual historian, he argues, might approach these questions by looking not only at the text, but to the arguments the framers made in defense of the Constitution, their other political writings, and the political theorists they referenced. By understanding the framers' larger worldview, we would understand the moral framework they presupposed in writing the Constitution—and thus that the Constitution must presuppose as well. DeHart rejects the historian's approach, however, because the "Constitution's meaning is distinguishable from the framers' meaning or intentions." As DeHart sees it, we need to look at the Constitution's content and structure and ask what philosophical positions one must assume to make sense of it. A logical examination of the Constitution itself reveals "an objective, institutional arrangement that embodies normative presuppositions and ends." To uncover these, DeHart proposes a new method for analyzing constitutions using the philosophical device of "inference to the best explanation."
Noting that the historian will try to classify the Constitution as classical, modernist, or positivist, DeHart argues that a constitution's moral presuppositions will not necessarily fit into any one of these categories. Instead, he says, we should "disaggregate" the contents of the labels by distinguishing and examining conceptual categories: the Constitution's implicit views about sovereignty, the common good, natural law, and natural right. The investigation of these topics forms the core of the book.
His method is applied in three steps. First, for each topic, DeHart creates irreducible and mutually exclusive options (the sovereign, for instance, could be wholly popular or not wholly popular, constrained or unconstrained) and tests these against what the Constitution establishes (popular election, for example, scores against an unpopular sovereign). Second, after eliminating the obviously contradicted options, he chooses among the remaining options by applying two tests: consilience (how much of the Constitution's structures a particular option explains) and simplicity (how many auxiliary or ad hoc theses are required to make the theory fit the facts). Third, he tests "teleological fitness"—how each theory measures up against the "purpose" or "proper function" of the Constitution. Here he sets off on something of a tangent as he defends natural teleology (as developed by Koons and Alvin Plantinga). Just as we can read teleology off of natural substances and artifacts, DeHart argues that the Constitution's design demonstrates its goal-orientation.
DeHart then applies his theory to his chosen topics. Take sovereignty. He sketches four alternative theories possibly embodied in the Constitution: the Constitution assumes that the sovereign is either wholly popular and constrained, wholly popular and unconstrained, not wholly popular and constrained, or not wholly popular and unconstrained. He then takes readers through his three steps to conclude that a constrained popular sovereign best explains the Constitution's design and structures. The sovereign is popular, he says, because no one serves in government without being chosen, either directly or indirectly, by the people, whom officials serve in limited terms or appointments subject to removal from office for misconduct. Ultimately, the people have the final say, as they can amend the Constitution and there is no will of the government wholly independent of the people's will. At the same time, though, the people's will isn't boundless. DeHart argues that the Constitution's provisions—the bicameral congress requiring geographically diverse majorities and, along with the checks and balances from the other two branches, favoring the long-term over the short-term will of the people—provide procedural constraints on the citizenry in an attempt to unite their will with the demands of justice.
He sets up similar analytically distinct choices on the other topics and concludes that the Constitution assumes a real common good, that people can know the natural law by non-instrumental (substantive) reason, and that duties precede rights. A real common good ("objective good" might be a more appropriate term) best explains the Constitution's design, which promotes not simply choice for its own sake, or mere peaceful co-existence, but deliberation about how best to serve substantive goods related to what DeHart calls the "human design plan" (I would have preferred him to call it simply "human flourishing"). Likewise, the inference that there is a natural law accessible to everyone best explains the deliberation that the Constitution provides for (in legislative chambers and in elections): people reason about the inherent value of ends and not simply about means to some (sub-rationally) predetermined end. Lastly, DeHart argues that the Constitution's framework is best explained not by a centrality of rights but by a focus on duties—rights protect people's performance of these duties. (Here I wish he would have placed the emphasis on "goods"; the Constitution takes the goods of human well being to be central, and rights and duties are two sides of the same coin in promoting and protecting these goods.)
DeHart's unsurprising conclusion is that, in essence, the Constitution supposes classical philosophical positions on each of these topics, and in doing so it has gotten moral reality right. While Madison, Hamilton, and Jay might have thought they were embodying Locke, Hobbes, and Rousseau, their Constitution is in fact thoroughly Aristotelian and Thomistic. This might explain the title DeHart gave to the work when it appeared as his dissertation: "Better Than They Knew: The Constitution's Implicit Moral Design."
While one could quibble with much in the book—DeHart's natural teleology will be resisted by many; his embrace of Suarez's Thomism is questionable; and, given his topic, more than a footnote on John Finnis's landmark Natural Law and Natural Rights would have been appropriate—the overall trajectory is appealing. But one wonders if the Constitution is as logically consistent as DeHart's method forces it to be. Inference to the best explanation might not be the best tool for analyzing a document written by committee, where multiple explanations might be needed. This, of course, is one of the risks of assuming that the document as a whole has a single purpose.
Overall, though, the book is an impressive accomplishment and should be useful to anyone interested in questions of jurisprudence and ethics. At times it can read like a free-ranging dissertation, referring to every book the author has read and going into long theoretical digressions, but on the whole it's quite readable.
But turning the book's method on itself, we might ask: what is its purpose? Does DeHart propose his method as an approach to constitutional interpretation and judicial review? I hope not, for we the people have committed ourselves only to the text's clauses, not the underlying philosophy that "best" explains them. And can we really conclude that what makes a constitution good is its correspondence to moral reality irrespective of whether it effectively secures peace and promotes the common good? Lastly, given DeHart's rigorous defense of moral realism, I fear that his method might force one to conclude that any intelligible modern democratic constitution is good in the sense of conforming to moral reality, making his conclusion about our Constitution not very remarkable. Unless, of course, you take a historian's approach, and see just how remarkable our Constitution really is.