Gene Callahan on Written Constitutions

I read Gene Callahan’s new book yesterday, Oakeshott on Rome and America (2012). If I had to give a one-sentence caricature of the book, I’d say its thesis is that written constitutions are overrated. But here’s Callahan in his own words:

Modern constitutionalism . . . is an instance of the general rationalist tendency at work in modern political thought, as it understands deductively derived principles and abstract design to be the best basis for creating a flourishing polity. . . . ¶ However, at the core of the case for the ability of a written constitution to meet the lofty expectations of its advocates resides an apparent paradox: how can a constitution successfully restrict the scope of action of state agents when it is those very same agents who possess the ultimate authority to decide how its text should be interpreted and its dictates enforced?

Callahan’s book makes a lot of astute points. Could a written constitution have prevented the unraveling of the Roman republic? Almost certainly not: when, in the late republican period, attempts were made to codify certain constitutional practices, the laws were violated with impunity.

Were the framers of the American constitution rationalists? The evidence here is mixed, but on at least some level, yes. In fact, Callahan’s quotation from Federalist No. 9 arguably leaves out the most striking language. (The “ENLARGEMENT of the ORBIT within which such systems are to revolve,” indeed!)

Was the Constitution doomed to fail? It certainly has failed, and Callahan provides good reasons for thinking this was inevitable. His tale of the two Jeffersons—the rationalist Jefferson, and the practical Jefferson—is one of the book’s highlights.

That said, I have some disagreements with Callahan that I hope to post about sometime during the next couple days.

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