From Hegel to Wilson to Breyer
Liberal constitutional theory returns to its foreign roots.
GEORG HEGEL was a German philosopher of the early 19th century. Hegel believed that history unfolds through a "dialectical" process, in which each stage is the product of the contradictions inherent in the ideas that defined the preceding one. Within these tensions and contradictions, Hegel believed, the philosopher can discern a comprehensive, evolving, rational unity. He called that unity "the absolute idea." History consists of an inevitable and progressive march to that idea.
Until recently it appeared that Marxism (which borrowed Hegel's dialectic but replaced "ideas" with economic systems and classes--hence "dialectical materialism") would represent Hegel's most enduring contribution to the modern world. But then Communism collapsed. Now it can be argued that Hegel's most enduring contribution is found in American constitutional law.
How did the metaphysical speculation of a 19th century German historicist, whose teachings were congenial to Marxists but are anathema to modern analytic and positivist philosophers--as well as proponents of the Constitution as originally understood--come to influence our constitutional law? The answer lies in the concept of the "living constitution"--and in the influence of Woodrow Wilson.
IN HIS BRILLIANT NEW BOOK, Woodrow Wilson and the Roots of Modern Liberalism, Ronald Pestritto painstakingly documents Wilson's debt to Hegel. After an unsuccessful career as a lawyer (as Wilson biographer Arthur Link characterized it), Wilson became one of America's leading political science professors. The American academy of Wilson's day was strongly influenced by German scholarship, and for a man of Wilson's ambitions, Hegel was clearly the pick of the Germans. Hegel's historicism was, in fact, irresistible to Wilson, who wrote, "the philosophy of any time is, as Hegel says, 'nothing but the spirit of the time expressed in abstract thought.'" Wilson took Hegel so much to heart that, in a love letter to his future wife, he observed that "Hegel used to search for--and in most cases find, it seems to me--the fundamental psychological facts of society."
Hegel may have mixed well enough with Wilson's love life. However, the marriage between Hegel's dialectic and Wilson's specialty, the United States Constitution, was a troubled one, and not for the dialectic. The Constitution represents the attempt of its authors to establish a government that would secure unalienable rights even against the depredations of future generations. But Hegelians believe that, until we reach the end of History, "enduring" rights exist only to be negated by future generations. Thus, Wilson wrote, "Justly revered as our great constitution is, it could be stripped off and thrown aside like a garment, and the nation would still stand forth in the living vestment of flesh and sinew, warm with the heart-blood of one people, ready to recreate constitutions and laws."
This statement represented more of a wish-fulfillment fantasy by Wilson than a sincere expression of his reverence for the Constitution. Wilson certainly did not revere the Founders--appeals to their views were nothing more than "Fourth of July sentiments" that "perspicacious men" should "derid[e]." Wilson himself derided what he referred to as the "Newtonian" underpinning of the Constitution, stating that the Founders "constructed a government the way they would have constructed an orrery--to display the laws of nature." Disputing the applicability of fixed laws (other than his own) to History, Wilson wound up opposing the concepts of limited government, separation of powers, and checks and balances.
Since the Constitution could not officially be "stripped off and thrown aside," Wilson endorsed the emerging, Darwinian-inspired theory of a "living Constitution." For Wilson, this did not mean creatively applying original principles to situations the Framers had not imagined: It meant negating those principles whenever they stood in the way of the march of History, as manifested in the latest promising idea.
Today, liberal members of the Supreme Court proclaim the necessity of a living Constitution. But do they embrace the extreme Wilsonian-Hegelian-based version of this concept? Increasingly, it appears that they do.
THE EMBRACE is most explicit when the liberal justices defend their growing penchant for using foreign sources to assist in constitutional adjudication. As Cornell University Professor Jeremy Rabkin has observed, this trend is founded on the notion that history is a progress towards an absolute (and therefore geographically universal) idea, and that the Supreme Court's task is to discern and give voice to the contours of that idea, wherever they are first revealed, and regardless of what those pesky Framers may have written or intended.
Thus, Justice Ginsburg defends her use of foreign law on the theory that "U.S. jurists honor the Framer's intent 'to create a more perfect union' if they read our Constitution as belonging to a global 21st Century, not as fixed forever by 18th Century understandings." For Ginsburg, then, the Framers' general desire to achieve a more perfect union provides the pretext for ignoring, whenever convenient, fixed principles, adherence to which the Framers thought would make the union more perfect. Two centuries further down the road of progress than the Framers were, Ginsburg knows that History has gone "global," and that's reason enough to take the Constitution along for the ride.
Justice Breyer (usually regarded as the most moderate of the liberal justices) is, in fact, the most sophisticated Wilsonian-Hegelian of the group. As Professor Rabkin points out, Breyer considers himself free to draw not only on actual foreign court decisions, but also on other materials such as pronouncements of the Council of Europe (a collection of politicians, not judges). To Wilson and Hegel, this would make perfect sense; History is not revealed solely by laws.
Breyer is quite explicit about the nature of his quest. He has written of "the ever-stronger consensus" on protecting basic human rights that now is "near world-wide." Although "formally speaking," each American state still has its own legal system, Breyer contends that "practically speaking" these have merged into a "national" law, while "analogous developments internationally" tend to produce "cross-country results that resemble each other more and more, exhibiting common, if not universal principles in various legal areas." In short, History is producing a great convergence and the role It now assigns our Supreme Court is to nudge the United States along on this path.
But this view raises an obvious question: If History is producing this convergence, why do we need judicial review? Won't the interplay of political forces inevitably produce the inevitable global 21st century outcomes in the United States? For the answer to this question, a variation on the one posed of all forms of historicism by Leo Strauss, we turn again to Wilson. In his writings on the administrative state, Wilson called for a cadre of experts to deal not just with technical issues but with core policy issues, including the distribution of wealth. Such experts were essential because, in Wilson's view, they could see the absolute idea that would mark the end of History far more objectively than mere elected officials.
Today, virtually no one believes that our bureaucrats possess this kind of wisdom and objectivity, but some suggest that our best judges do. Thus, just as Marx placed "the party" at the vanguard of his historical process, modern liberalism flirts with the notion that judges can play that role in theirs. The robed step-children of the Wilson-Hegel marriage who sit on our high court are not quick to demur.
Paul Mirengoff and Scott Johnson are contributing writers to THE DAILY STANDARD and contributors to the blog Power Line.