We Held Those Truths
Progressive Sovereignty, Sacredness & the U. S. Constitution
by Alexander Riley
It is not uncommon to hear talk of the “sacredness” of the U.S. Constitution, even if such talk is not always clear as to how that descriptive is being defined. Even the opponents of such a view of the Constitution acknowledge, albeit with disapproval, how many Americans see the document in this light. As a Salon magazine writer put it in late 2020 (and one imagines while holding his nose and grimacing):
Americans view the U.S. Constitution and its framers with a reverence that is almost religious, as if it were a stone tablet delivered by Moses descending from Mt. Sinai. The Constitution’s perceived sacredness implies that it is only to be minimally and periodically amended, overseen by legal priests with exclusive knowledge of what should and should not be altered.
The way we behave around the document speaks to sacredness too, if indirectly. In the Rotunda of the National Archives, a copy of the Constitution, along with other important national documents, is sealed off in protective glass and lowered at night into a vault that secures it from theft, fire, and natural disaster. “We are enshrining these documents for future ages,” President Harry S. Truman said. “This magnificent hall has been constructed to exhibit them, and the vault beneath, that we have built to protect them, is as safe from destruction as anything that the wit of modern man can devise.” One does not generally act in such an exaggeratedly protective way with respect to merely mundane objects.
The fact that we celebrate a Constitution Day (September 17) also indicates a reverential consideration of the thing. The Department of Education’s mandate that on this day all educational institutions receiving federal funds provide information on the history and meaning of the Constitution tells us that we are to elevate this day and its object above other, unremarkable days of the year. This is what we do with holidays, a contracted form of “holy day.”
What should we make of all this? What could it mean to say with precision that a constitution is sacred or is grounded by and produced by the sacred? Is a connection with sacredness helpful for understanding the viability and legitimacy of constitutions and written codes of law? Does it help us better understand how we can endeavor to construct sturdy and resilient social and political orders?
Sacredness as a Concept
We should perhaps start with an effort to define the term “sacredness.” This is one of those ideas that people often assume they understand, but when asked for a definition, they find it hard to provide one.
The processes and practices by which groups recognize and pursue relations with entities, symbols, and ideas they take as sacred are complex and long-lived. We invent narratives and myths about those sacred things to share with one another and to pass down to subsequent generations, so that the essence of a given people and its traditions and nature can be sustained against the harshness of time and change.
The German theologian Rudolf Otto (1869–1937) described the sacred with his term “the numinous,” alluding to the mystery and awe it produces. This is a good start, but only that. A thinker who has been influential on my own work, the French social philosopher Émile Durkheim (1858–1917), in his monumental study of the origins of religion, defined the sacred as that which is necessarily set apart from the profane or mundane. It is recognized as charged up with a kind of power. This power evokes reverence, and it is seen by us as generative. It gives us life and replenishes our energy, and so we engage in repeated ritual behavior with respect to those sacred things in order to maintain our vitality.
Durkheim argued that all societies orient themselves around sacred objects and symbols. He further argued that these symbols in fact stand for the society itself. We worship ourselves, in other words, through sacred objects, though we are typically unaware that we are doing that, and we are oriented instead in our own thinking to something else.
The Constitution & Sacredness
When we talk about the U.S. Constitution as a sacred object, we are typically talking about what it does in at least some ways that are consonant with Durkheim’s framework. We view the document, outside of and beyond its status in a system of law, as having a peculiar power, demanding awe and reverence. But what is our reverence directed towards? On what does it focus?
Sometimes, those who talk of Constitutional sacredness are speaking of the text itself. But what in the text makes it so?
It must be said that the Constitution is, considered objectively, a pretty bloodless document. There is not much in it to get the blood pumping and to drive passion, which are general accompaniments to manifestations of sacredness. It reads like a shop manual or a technical diagram—here’s how this should be assembled; here is the duration of this entity and that one; here’s what this or that body has as its charge. I think it fair to say that it is not the kind of thing the average reader picks up when he needs a little emotional lift at the end of the day.
But readers of the Constitution who recognize its sacredness will, even perhaps while agreeing with what I just said, nonetheless immediately note that it is a weighty text, treating matters of the utmost national seriousness, and that this weight is what gives it its power. It moves us because we recognize it as an ultimate source on a subject of central importance: the political organization of our people.
We can certainly recognize it as an important historical action in the business of a sovereign people asserting its right to self-governance. The principles of governance it lays out have worked fairly well for us, and they are expressed with admirable clarity and brevity. But this does not get us any closer to the ground of the claim that we should see it as sacred, as something meriting protection and preservation from contamination with the mundane world, something essential to the vitality of the people for whom it was written.
The text itself does not provide the ground of its authority. The Preamble, though elegantly stated, contents itself with a matter-of-fact statement about the origin of the Constitution: “We the People” decided to see to some essential matters of collective life, such as the protection of liberty, peace, justice, national union, collective defense, and provision of welfare, and we therefore “ordained and established” this document.
Perhaps “we the people” are the source of the legitimacy and power of the text, then? But is it just those people who produced the text—who, by the way, have now been replaced by others who might not be of the same qualities—or is it Americans per se? If the latter, what is it about them (us) that confers this power? The Constitution offers no answer to these questions.
From the Constitution to the Declaration
We can perhaps begin to devise an answer if we look at the relationship of this text to another. Some have argued that the sacredness of the Constitution is tied up with its relationship to the Declaration of Independence, in a coupling from which the power of each is enhanced.
Here, it is good to acknowledge forthrightly something that no astute analyst of sacredness could miss: that the most direct route to sacredness is through religion, as that is the field of human activity in which the concept first emerged, and it is still the most natural environment for it.
The Constitution itself deals almost not at all, at least directly, with questions religious. The First Amendment in the Bill of Rights fleetingly notes an aspect of the relationship of the state to churches, namely, that an establishment of religion is prohibited, as is the denial of its free exercise by the citizenry. There is nothing, though, that provides a hook for understanding the text as originating in something beyond itself.
It is in the Declaration of Independence that we find such a hook, in fact, several of them. There, four separate times in a document of just over 1,300 words, our political rights, indeed our existence as a free people, are made dependent on a supernatural power. Our “equal station” among “the powers of the earth” is something to which we are “entitled . . . [by] the laws of Nature and of Nature’s God”; we are “endowed by [our] Creator with certain unalienable Rights”; we make “appeal . . . to the Supreme Judge of the world for the rectitude of our intentions”; and we declare our “firm reliance on the protection of divine Providence.”
Now, many scholars have endeavored to remove as much of the supernatural—and specifically, of the Judeo-Christian—as conceivably feasible from these lines, emphasizing the great distinction between Deism and more full-blooded religious perspectives. Yet no reader can fail to see the bald assertion in the Declaration that our political life and its legal principles extend from somewhere outside of and superior to that life and those principles.
Following Durkheim, the good social philosopher and social scientist, we might say that it is indeed something outside of the document itself, inexpressible in any other document, even if we stop short of saying that the power is supernatural. Recall that Durkheim argued that sacredness comes from the ritual life and inner faith of a people, who over time produce a culture that includes myths about its origins and symbols that emotionally communicate to them their identity, unity, and mission. In this Durkheimian way, the Declaration might be seen as rooting the sovereign power of its claims (and, by extension, those of the Constitution) in the cultural Weltanschauung of the Anglo-Protestant people who made both texts. This cultural worldview included, as a basic element, belief in “a Supreme Judge of the World . . . Divine Providence,” and therein rooted its political sovereignty.
For a Durkheim, the quest for justification, which carried us through the Constitution to the Declaration, ends here, because in secular sociological terms there is no further justifying why a people have the historical culture they have. This culture is the ground beneath their feet, and it needs no explanation. It is the final answer on sovereignty.
When the Culture Shifts
But what if that historical culture shifts? Permit me one example of such a shift. National Public Radio has participated for more than 30 years now in a tradition in which the station’s hosts stage a reading of the Declaration of Independence every 4th of July. In its earliest incarnations, back in the late 1980s, the reading was solemn and reverential, and the words themselves were allowed to carry the meaning, without much commentary and with nothing of the polemical.
But last year, instead of the reverent reading of the Declaration, there was a long meditation on the phrase “All men are created equal.” The NPR hosts and two academic guests insinuated that the original meaning was insufficient and needed to be progressively adapted to fit current elite ideas about equality. Looming in the background was the recent Supreme Court decision on abortion (Dobbs v. Jackson Women’s Health) and the progressive view that revising the invention of a right to abortion would negatively affect the political status of women. In consonance with the ascendant progressive worldview in much of American elite culture, the station also did a feature expressing clear critical disdain for the Declaration, declaring straightforwardly that it “is a document with flaws and deeply ingrained hypocrisies.”
NPR even went back to the webpages of earlier readings and added an “editor’s note” to conform to contemporary far-left political practice. The note reads: “This story quotes the U.S. Declaration of Independence—a document that contains offensive language about Native Americans, including a racial slur.”
What has changed in these three decades? Not the text itself. But the people commenting on it are different, and they have different beliefs; that much is obvious. So we might ask Durkheim here: Can the sacredness in such documents be located in the people if the people, or at least a dominant subgroup among them, can so quickly and radically change their minds?
Joseph de Maistre’s Essay
One answer to the question about the source of sacredness in the Constitution is given in the Essay on the Generative Principle of Political Constitutions of Joseph de Maistre (1753–1821), written just a few decades after our Constitution was. The Essay addresses our question about the relationship between law (and in this case, constitutions as primary law) and norms or culture. How should we characterize that relationship? According to Maistre, law can, painstakingly, help to move norms in one direction or another over long periods of time, but the causal arrow pointing in the other direction is stronger. Law has no hope of being written, much less followed, without a pre-existing culture consistent with its principles.
Maistre presents constitutions and all written legal codes as fully reliant on sources more subterranean, which they could never escape nor fully describe. He stringently criticized social contract theory and its presumption that the origin of government lies in the rational deliberations of individuals who agree to band together and escape the state of nature on the basis of calculated interest. This theory posits rational individuals before societies, an empirical absurdity presented by its theorists as a necessary philosophical game for thinking through the roots of social order. But the dangerous implication of this perspective is that it imagines the individual as the arbiter of social order. If this is true, then as soon as individuals decide to do so, they can tear down such orders and build others, or even return to the state of nature should they so desire.
Maistre’s argument presumes that human beings have never existed outside societies. Our social bonds preceded us, not only as individuals but as a species, and therefore, the roots of the bonds that hold us together are inevitably much deeper and more difficult to map than any written contract expressing our rational assent to these already existing norms and practices. Against the contract theorists, Maistre rejected the idea that law can be determined democratically by nothing more than rational decision-making. What is possible as law for a given people is determined by something more fundamental than their conscious action.
Maistre was a fervent critic of the French Revolution, and he feared the dangers it presented for the expansion, even the eternalizing, of revolution. He wanted to take some of the sovereign power the Revolution was able so egregiously to misuse from the hands of human beings and place it somewhere beyond their reach, in a source more constant and incorruptible.
It is not a constitution itself that should be worshiped, in his view. Its sources are inevitably and always below and beyond it. As we have seen, in the secular, Durkheimian framework, we would say that a constitution’s sovereign sacredness rests in the cultural practices that preceded it. But this, Maistre insists, only raises another question: What is the source of those practices?
What Makes a People
Maistre’s view is that “the more perfect an institution, the less it writes . . . written law . . . has no authority whatever if it has not received a prior and unwritten sanction.” This is a profound anthropological view of human life and the limits of human reason. No text can clarify itself beyond the point of dispute and difference. This is the limit of words and communicative logic. A simple sentence can be read differently, sometimes significantly so, by those differently inclined, and the only thing that can ensure a meeting of the minds is some agreement that precedes the efforts to unify minds rationally.
In the deep history of humanity, societies have always and everywhere been defined and bounded by ties of community, proximity, shared ancestry, long-lived values, and, most importantly, collective worship of the same God. There is no reason behind these ties, or in any event it is too complicated to articulate in writing. We are a people because here we are, with our shared collective memory and our deep though incompletely articulable understanding of who we are, where we came from, and what mission we have in the world, and that understanding is not something we invented. It comes from outside us, indeed, from outside the world we see.
“Nothing great has great beginnings,” Maistre goes on; “there are very few sovereignties able to justify the legitimacy of their origins. . . . It is always necessary for the origin of sovereignty to appear as being outside the sphere of human control; so that the very men who appear to be directly involved are nevertheless only circumstances.” We might see this as a response well in advance to the contemporary critics of American origins on the left. All states are born in mystery and in injustice. They cannot rationally legitimate their origins.
Some critics today would like to delegitimize the Constitution because of its failure to condemn slavery. But all written documents will fail to live up to the standards of some readers, especially those distant from that writing. Only the spirit of the culture that breathed life into the Constitution, and ultimately the goodness of the God we acknowledge was behind it in the Declaration, can give it a solid grounding and defend it from vandals.
Back to the Practical Question
Here is the key for Maistre: “If therefore you wish to conserve all, consecrate all.” Consecration, or the making of something sacred, is what preserves constitutions from destruction and endless alteration, distortion, and dilution. Maistre’s view is that “the essence of a fundamental law is that no one has the right to abolish it, but how is it beyond human power if it has been made by someone? . . . an agreement is not a law and obliges no one unless there is a superior authority guaranteeing it.” This authority, this sovereignty, is found, in our Constitution, materially in the cultural worldview of its Anglo-Protestant authors, but more substantially and spiritually, beneath that worldview, in the God who created it.
Some critics, even sympathetic ones, will certainly say that this is a completely impractical answer: we cannot return to the world (and its understanding of God) that made the American Constitution. Perhaps. But Maistre was deliberately ambiguous, knowing as he did that modern political projects would need to convince not only the faithful but those outside of faith as well. “The sanction for laws” he wrote, must come from “a power above men, either by recognizing that sovereignty comes from God, or by revering certain unwritten laws as coming from Him.” Note well: “unwritten”—so, not the Constitution, but other, more basic laws of morality beneath it, which cannot be written because, “as there is something in music it is impossible to annotate, there is something in all governments it is impossible to write.”
Durkheim the sociologist was empirically correct, though, that all this does ultimately come down to the practical question of the makeup of a culture and its people. Are there enough citizens left in the United States who believe that the sovereignty of the Constitution and the unwritten, unwritable norms that underlie it have a divine source, or who at least accept that we must proceed as if it did, even if we are no longer completely certain of the point, because we recognize that as the only stable way to protect law from revolution? If not, if the culture has been wiped out, then, in practical terms, the Constitution will no longer have the sacred power Maistre describes, for it will have lost the social base necessary to enforce it as such, and it will be unable to resist revolutionary change.
Dobbs & the Sacred Origins of Law
Maistre understood well how constitutions in a fickle culture are infinitely malleable and perhaps meaningless. In the wake of the French Revolution, new constitutions emerged virtually every second year from 1791 to the confirmation of Bonaparte as First Consul for life in 1802. The French example was one of constant change, he argued, because sovereignty was not understood as founded in anything more substantial.
We in the U.S. have had—historically speaking, at least—rather more success. And yet we have abundant evidence of the drift away from the root of sacredness in our law and our Constitution. Last year we saw the handing down of a Supreme Court decision reversing another decision from a half-century ago. That earlier decision posited a “right to privacy,” hidden in the Due Process Clause of the Fourteenth Amendment, that guaranteed women the right to abort their pregnancies if they chose to do so. Many Americans believed that decision was a fundamental misinterpretation of the Constitution, and they worked and advocated politically for fifty years to make possible a change in the intellectual makeup of the Supreme Court that could produce the reversal we saw. We might say that the Court’s argument was in a certain sense Durkheimian: it claimed that the previous assertion in Roe v. Wade of a fundamental right to abortion was unsupported not only by the Constitution itself but also by the deeper norms and traditions of the culture that produced it.
Is it reasonable to believe, then, that all is well now, that we’re back to the ground of sacredness with respect to Constitutional interpretation? Not so fast, Maistre might say. The survey evidence demonstrates that much, perhaps most, of the country (depending on how you ask the question) likes this extension of a “right to privacy” to a “right to abortion.” Some significant number of Americans, especially those in culturally, socially, and politically elite positions, have shown themselves adamant in this belief. We can therefore expect concerted efforts on their part to reverse the reversal. Where is the firm sacred ground that would obviate such volatile switching back-and-forth, such constant revision of the meaning of the law we purport to hold sacred?
An astute observer might think himself forced to argue that such ground is not present, or at least that it is not held to by a sufficient number of our people to give it political force. Perhaps we might instead predict that we have now entered something of our own French revolutionary period with respect to this and other weighty matters, in which we will see ever new, ever “improved” readings of the Constitution taking power in a series of back-and-forth ideological movements. Given the clear trends in the cultural beliefs of the dominant classes in American society, there can be little doubt where this is most likely to end: in the establishment of a broad understanding of the Constitution as something wholly malleable to the “will of the people,” or to the will of cultural elites in any event, and so revisable on their whim, and disconnected permanently from any purported sacred base.
If Sacredness Is Lost . . .
Our second president, John Adams, who was a near-contemporary of Maistre, expressed a sense of the source of the efficacy and sovereignty of our Constitution with which you may be familiar:
While our country remains untainted with the principles and manners which are now producing desolation in so many parts of the world; while she continues sincere, and incapable of insidious and impious policy, we shall have the strongest reason to rejoice in the local destination assigned us by Providence. But should the people of America once become capable of that deep simulation towards one another, and towards foreign nations, which assumes the language of justice and moderation while it is practising iniquity and extravagance, and displays in the most captivating manner the charming pictures of candor, frankness, and sincerity, while it is rioting in rapine and insolence, this country will be the most miserable habitation in the world; because we have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. (“To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts,” October 11, 1798)
Bad news is coming in daily in the form of survey data showing that Americans are steadily growing less religious in the sense Adams intended. Survey data from 2019 show a 13-percent decline over the last decade, from 78 to 65 percent, in the number of Americans describing themselves as Christian, while the number of unaffiliated Americans (frequently referred to as “Nones”) has grown from 17 to 26 percent. That is, perhaps a quarter of Americans now have no religious belief at all. The picture of American religious life is complicated, but the one group that is growing everywhere in the country at present is the unaffiliated, however defined.
Some observers of the Supreme Court have noted that cases pertaining to the crucial matter of the relation between church and state loom large in the near future and that the present Court is likely to reverse earlier decisions that had done much to accommodate the secularization process. If the Court does so, will it be possible to argue that its decisions rest on a Maistrean sacred foundation if the cultural base for those decisions is fragmented and weak, that is, if American culture has changed so substantially that the majority rejects sacredness as a viable concept in considering political sovereignty?
Alexander T. Riley is a senior fellow at the Alexander Hamilton Institute for the Study of Western Civilization and a member of the board of directors of the National Association of Scholars.
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