Constitutionalism, reality and the empire of desire

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 28, 2022

There is great deal of emphasis right now on expanding the pro-life fight in America into the various states. This is even more necessary now that the US Supreme Court has decided there really is no Constitutional right to abortion (even under the heading of privacy). Of course, I have always found it somewhat bizarre that our system looks to a written Constitution to figure out such fundamental moral issues.

I admit that nations have to latch onto standard ways of doing things to have any internal peace at all, and for the United States the standard way runs through Constitutional Law. But it is important to remember that the majority of political entities through the ages have not had constitutions. England (the “mother country” of the United States) lacks a constitution to this day. In fact, the very idea of written constitutions seems to have arisen during the so-called “Age of Reason”, in which people really thought they could figure out in a kind of vacuum (in their heads) how a society ought to be governed, record the structures and procedures in a document, ratify it, and so set in stone the methods to which all future generations must adhere.

If you are suddenly realizing that this does not make a great deal of sense, you are right. There is no perfect way to construct a government, the goodness of which depends on those who govern and even on those who are governed. And, in fact, so-called constitutional battles can sometimes be a distraction from far deeper realities, and far deeper problems.

Distractions of governance

Every people has a culture and a common history which shapes the way that people thinks about human affairs. To some degree, the natural law always contributes to this cultural consensus. To some degree tradition—the way things have been done in the past—contributes to it. And to some degree the particular “genius” of a culture makes its own contribution. For example, it was a particular genius of eighteenth-century Europe to consider how regular, historical ways of doing things could be abstracted into principles and laws, to which people could then appeal in order to improve their own workaday institutions—while sharpening their own ideas about the interplay among things like authority, justice, equity and liberty.

Though the human person cannot avoid such processes of abstraction, not every culture is dominated by abstraction to the same degree as the West today. Constitutionalism itself has probably contributed to our contemporary propensity to confuse abstract principles with reality itself. The Real has been gradually dominated by mental images, to the point that what was once an exercise in “abstracting” workable principles from natural situations has become an exercise in imposing untethered “abstractions of desire” on what used to be considered “the real”, or nature.

Another way of putting this is to observe that our culture now tends to insist that reality is determined by the human will rather than perceived as a given by the human intellect. Inescapably, this has led to the destruction of a human moral consensus, which leaves us to arrange our affairs as a people based on political and legal formulations which are very often divorced from the very realities from which they had once been abstracted. Now we are beginning to see what happens to “constitutionalism” when it becomes vacuous—that is, when the reality that was once inculturated in the body politic has been hollowed out and lost.

This might well be cited as an inherent danger of “constitutionalism” as compared with the original perception of natural law from which many eighteenth-century figures derived their best ideas. When the very morality of politics begins to be associated with constitutional interpretation, we have moved beyond convenient working arrangements to a dependence not on reality itself but on what we call “positive law”—that is, the notion that law is exclusively an emanation of the will of those who constitutionally enact it. In a constitutional context, then, what we have done to some extent is to privilege a past consensus of human will, largely abstracted from the recognition of reality which provided an intellectual justification for this consensus. It is inevitable that this abstraction will be stretched to the breaking point by each successive contemporary consensus (or, in the absence of genuine consensus, each successive dominant viewpoint).

This means that constitutionalism may well serve practically as a kind of historical brake, but often very little more than that. Without a grip on reality and natural law, constitutionalism tends to mean being partially governed by the ideas of a previous generation which “did not know what we know now.” Because it is part of a nation’s historical culture, constitutionalism may have very real value as a political lever. But again, absent the perception of the reality on which any given constitution might be at least partially based, this political leverage does not make a great deal of sense. In our contemporary political battles, the old adage very often applies: If your only tool is a hammer, everything begins to look like a nail.

Formation vs. procedure

My point is that we desperately need an expanded toolset, which must be available in public as well as private life. Constitutionalism does not necessarily or essentially derive its moral force from reality itself. It is already an imperfect abstraction, concerned with political forms and procedures more or less arbitrarily selected for the conduct of our public life, which could be handled in a wide variety of different ways. It is not surprising that the most important constitutional battles tend to be fought not over procedures but over the enumeration of particular rights, so that there is constant jockeying to get new rights defined, or revoke old ones, in order to more thoroughly protect our pet ideas.

Now, notice that even as we have maintained a Constitutional adherence in the United States, we have done so at the expense of outlawing all other tools—traditional, time-honored and highly effective tools—from what we call the public square. And since education is now considered a public thing, we have also completely lost control over the proper formation of the next generation. This has very much been a matter of the preservation of forms (whether constitutional or instructional) without a continuing commitment to the perception of reality which originally gave life to these forms. The problem is the same in both cases. We need to recognize that both politics and education are only as good as the recognition of reality on which they are based, and within which they are practiced.

The forms are not sacrosanct; the substance is. To some extent tradition (which at least tends to preserve perennial values), and certainly Divine Revelation and natural law, are important “tools” that must be vastly expanded once again in their use. All three are far deeper than either constitutional law or, God help us, government regulations. That is why it is so much more important to preach the Gospel, educate in accordance with the natural law, and form the next generation in reverence and realist philosophy, than it is to take advantage of constitutional, political and legal maneuvering to win particular victories.

We must also remember, even when politically engaged, that only Christ saves. As long as we persist in viewing the public square as constitutionally “naked”, insisting that it be unrelentingly secular, just so long do we elevate form over substance. For this reason, as long as we frame our battles in terms of mere constitutional categories and political procedures, we are doomed to continue losing ground regardless of what small victories we may win: Precisely because the goal will always be secondary, as constrained by the technique.

To take but one example, though we must thank God for whatever victories He permits, finding encouragement in a 6 to 3 Supreme Court decision which, not so long ago, was 5 to 4 the opposite way, may be to take heart more from mere constitutionalism than from a deeper perception of reality itself. The latest decision did not strike a blow for life; it struck a blow for…Constitutionalism. That’s not a huge victory. Though not without value and political possibilities, it is primarily a semantic shift, perhaps well within the rules of the same rigged game, in which moral principles are not legal cards.

For this reason, the most important long-term political battle is the battle over human formation, and especially over the mass education of children. There is an acute need to wrench affordable education out of the hands of government and bureaucracy, and then to make sure that Catholic and other Christian educators are gradually recognized for truly educating (educare—to lead out [of darkness]), and then to make that education available to everyone as freely as possible. This education must be rooted in both Divine Revelation and Natural Law, through a realist philosophy that deliberately seeks an intellectual, and therefore moral, apprehension of reality, that is, of the Good.

Against the Empire of Desire

You would have thought fifty years ago that it would have been enough simply for good Catholics (among a very few others) to be willing to have large families. But millions of our children continue to be dragged into the illusory Empire of Desire through our educational systems, if not by the time they graduate from high school, then very often when we send them off to “good” and “prestigious” colleges. I suppose that huge numbers of people really do not recognize this yet—which in itself is a colossal absurdity—but there are a great many who feel they simply have no alternative. This is a dramatic failure not only of the Church but of all men and women of good will.

The number one priority is only tangentially political, though the enemy will regard it as supremely political and do everything to politically prevent it. We need to create and support schools, staff them with solid Catholic teachers, and make it as easy as possible for all parents who care to send their children to these schools, right through college. Without in any way denigrating the courage and commitment of the pro-life movement (of which I count myself a part), I sometimes think that if all the money we have poured into the fight against abortion and other “sexual-reinterpretations” had been used to establish and maintain proper schools for our children, then we might have accomplished far more overall, while still making at least as much legal progress against murder and sexual mayhem. (Of course, in the beginning nobody realized we would be able to educate at least two generations of children before our Supreme Court decided abortion was not a Constitutional right.)

Certainly we do need a new kind of politics as well. But that can arise in strength only from a new kind of (unsecularized) human community. The shortest distance between two points just may be new ways of forming and educating our children. And in this, we are up against something far more powerful and entrenched than abortion. To win this battle, even for our own children, we must be full-time champions of reality against the Empire of Desire.