Forms and Formalities Regarding the American Constitution

Mansfield aims to defend the Constitution against the slights and scorns of political and social science and, especially, to restore respect for its forms and formalities….

Mansfield argues that while the Constitution is a means to ends outside itself, its forms include an end – self-government – that deserves our loyalty even when it is not immediately in our private interests. Forms and institutions can be a cause of behavior, so that over the long term, the Constitution may shape interests and values even more than it reflects them: in this sense, the extra-constitutional is a part of the Constitution, not something opposed to it. Formalities separate what is to be revealed in public – what we regard as proper, important, or honorable – from what should be concealed and controlled, and like law generally, the restrictions of form can help to free us from what is low and trivial. Forms establish expectations, and in so doing, indicate directions or goals: thus formal equality, however qualified by the inequalities that follow from individual rights, shapes our political language and works to tip the balance of policy.

– Wilson Carey McWilliams, reviewing Harvey Mansfield’s America’s Constitutional Soul, in Political Theory, Vol. 20 No. 3, Aug. 1992

This forms/formalities distinction is not one I have thought much about before, and given how much I talk about form without content, I think I need to address the idea of “formality” that has been brought up by the above passage.

McWilliams eventually argues that Mansfield wants a “veneration” of the Constitution that might not be justified given what seems to be Madison’s own secularism regarding the document he shaped perhaps most of all the Framers. The word “formality” seems to be an accounting of mores or values that stem from Constitutional form: since we have a right to free speech, that form can be said to create a formality, which in public life would be holding everyone speaking as “proper,” “important,” or even “honorable,” and in private life, finding attempts to restrain speech the mark of someone bad.

The question is whether Constitutional form alone creates the formalities needed to protect the Constitution. This blogger says “no” fairly emphatically. But Mansfield is far more sophisticated than I am, seeing aspects of design that I don’t normally give credit to. McWilliams points out that for Mansfield, distinctions between “state and society” give people a “distance from their government” – that government doesn’t respond to every little thing the popular will demands at any given moment allows for formalities to be reflected upon as time is given for reflection on those formalities themselves. Furthermore, because there is a distinct sphere of private life, we learn continually as individuals that freedom and responsibility are two sides of the same coin.

Ultimately, one way to look at the Constitution is to see it as organizing prideful, spirited actors as working together to stay free. Such a conception would mean that government does not try to mold its citizens exactly into a sort of person, as classical governments did with gods being of the city, and as socialist governments do now through public control of nearly everything.

The trouble with looking at the Constitution that way, though, is that it assumes that because Madison isn’t Rousseau, Madison has a defense against Rousseau’s thought that is classically based. I actually don’t think the Constitution has any such defense built in it. That forms became formalities to some degree was not supposed to happen; the plurality of interests that the “enlarged sphere” brings into being means that the Constitution is less about “learning how to conduct civic discourse” and more about organizing any old actor that comes under Constitutional “governance” into the mechanism that is our politics.

I know, that sounds like the same thing Mansfield would say, so let me add what is decisive: the classics didn’t just assume “pride,” they worked with it, and aristocrats had pride because they were educated to be better in genuine ways.

As problematic as Rousseau and Kant are for American Constitutionalism, I see them as more in line with classical thought, and see the American project as more of a break. If you want to say that there is a way of teaching about Constitutionalism which promotes civil discourse that is wise and deliberate, you have to do it outside the Constitution qua Constitution. You can’t just go to the seven Articles and try to distill some magical teaching that fixes everything.

Mansfield knows that. Hence he teaches and argues using Aristotle as a basis.

Let’s be clear: one thing about Enlightenment is correct – all of us have to take education seriously in order for democracy to work. Where Enlightenment goes astray is in thinking that the elitist aspects of wisdom can be diluted if everyone is an expert, and that expertise can be a democratic wisdom of sorts.

Truth be told, those elitist aspects are more essential than ever before for our order. The essential consideration is what happens in a world without any real basis for pride: all becomes catering to the popular, and where the popular is driven by the market….

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