Posted: July 7, 2014
n this issue of The Claremont Review of Books, Professor Leonard W. Levy discusses the nature of scholarship and the task of the scholar. He says that scholarship is the quest for truth, and the scholar's task is the critical investigation of old truth. Seemingly nothing could be more remote from the work-a-day world, and Professor Levy expresses serious reservations about the propriety of academics as such engaging in social or political action. While not a defense of the academy as an ivory tower, Professor Levy's position is certainly different from that point of view that demands the academy's full engagement in the life of society.
Professor Levy might seem to be a defender of scholarship for its own sake, but he is not. The scholar's quest for truth includes the quest for the truth about the human things-the social and political things. That quest entails a confrontation with already established beliefs—he calls them "old truths"—including already established beliefs about the social political things. Scholarship, or at least a part of scholarship, must be engaged in the political and social life of the community, for scholarship seeks to replace false opinions about the political and social things with the truth about those things. In spite of Professor Levy's reservations about the involvement of the academy in the immediate life of the country, his understanding of the nature of scholarship necessarily leads to such engagement.
In a constitutional country like the United States, the scholarly quest for truth is compelled to take two forms. The most immediate form is the examination of present practice in light of the provisions of the Constitution. The more mediate form is the theoretical interpretation of the Constitution itself. The former takes place almost daily in our society, whatever scholars might do. Every time a citizen sues the government and takes the case to the Supreme Court, he is invoking the general provisions of the Constitution as a check on governmental practice. And every such invocation implies an interpretation of the broad purposes of the Constitution itself.
Now all such proceedings occur under the general framework of the Constitution and presuppose the justice, or the truth, of its provisions. Constitutional scholarship therefore, appears to be barred from inquiring into the truth or falsehood of the provisions of the Constitution itself. Here we find the absolute limit and term to the scholarly quest for truth, in so far as that quest is for the truth or falsehood—that is the justice or injustice—of the laws. Something like this view of our political situation is presently advocated by many Constitutional scholars. We may call this view proceduralism. Justice, according to this view, means whatever outcome the constitutionally mandated procedures allow.
But this is not simply an adequate view of our constitutional system. According to Professor Levy, certain results which follow the sanctioned forms, are illegitimate. The government must never seek to proselytize religion, for example, even by so innocuous a means as nonsectarian prayer in the public schools. Evidently there are at least some substantive commitments enshrined in our constitutional law that exclude some results of correct procedures. We need to know what these commitments are, and their status in the hierarchy of our laws, before we can say where the scholarly pursuit of political truth ends. We need to know where that pursuit ends, in order to be able to make a judgment about the lesson the proceduralists would teach us.
The most famous instance in American history of a political appeal beyond the letter of the Constitution, to the foundation of the Constitution itself, is the Civil War. About that struggle, it can be said that the one side sought a defense of its particular interests in the letter of the Constitution, while the other side sought to limit the expansion of that interest, and to set it on the road to ultimate extinction. The latter regarded the Constitutional protection of the slave interest as a lamentable departure from the principles of constitutional government. Those principles they found expressed in the Declaration of Independence. And they argued that no other foundation for our system of constitutional, representative democracy is possible than that of natural right/natural law theory. Lincoln said that the sum and substance of democracy is the rule that no man has the right to rule another without his own consent. But this could only be true if men are by nature free and equal, enjoying equally a right to their own lives and to the things which are necessary to life.
To repeat: the ordinary laws of the community are just if they are made according to the constitutionally prescribed method, in pursuance of ends which are either expressly sanctioned by the Constitution, or are not expressly prohibited by the Constitution. In turn, the Constitution is just because it is an expression of those universal principles of right which are the higher measure of every political constitution.
The path of the scholarly pursuit of political truth is laid out by the hierarchy of our laws. The question of procedure is only the first step of the investigation. The second level is defined by the question, is the end sanctioned, or at least not prohibited? The third level of the investigation is defined by the question, is the end conformable to the principles of natural right and to natural law?
Only with some such plan of analysis, that posits a level of inquiry at which, in principle, the question of the goodness or badness of a measure can be answered, is the final task of the scholar possible. For Professor Levy is not content merely to charge scholars with the pursuit of truth and the critical investigation of old truths. He also wants scholars to free their contemporaries from the bondage to false opinions. This requires persuading those who need it that their ideas are wrong, by teaching them the right ideas.
It should go without saying that it is no easy thing to carry an investigation up from the particulars to the level of universals, and then return it to the level of practical politics. The intrinsic difficulty of the task is only compounded by the fact that moral science is not a precise science, like geometry or physics, but only an approximate one. The difference between William Loyd Garrison and Abraham Lincoln on slavery and the Constitution illustrates this point. Garrison, finding that slavery was wrong and sanctioned by the Constitution, condemned the law. Lincoln, understanding that in the circumstances of the day, union with slavery was a lesser evil than disunion, had nothing but praise for the Framers and took a scrupulous care of slave property, where it was legally established. These are the kinds of judgments which politics compels citizens to face. Any scholarly analysis of political things which ignores the necessity of such judgments, or obscures their ground, is itself a failure.