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The “Great Dissenter”: Justice John Marshall Harlan the First as a Role Model of Resistance in a Post-Constitutional Age

In his book Trust, Pete Buttigieg argues that many Americans now demand a more democratic polity, and that the frame of our government must change to accommodate these demands through “deep reforms,” including the elimination of the electoral college. In effect, Buttigieg argues that if many Americans’ souls aspire to greater democracy, our Constitution must change to suit them. Echoing a long line of thought in Western political philosophy, we could argue on the contrary that, instead of altering our Constitution to suit our souls, we should change our souls to suit our Constitution. In the Republic, Plato famously argues that an unrestrained drive for democracy in the souls of citizens risks calamitous moral and political decline, and that the soul of a citizen should mirror the order of the properly designed regime.

In the United States, to follow Plato’s counsel would mean that citizens work to create an inner disposition that reflects our Constitution’s skepticism of unregulated majority power—a design that seeks both to protect basic rights and to ensure that any change in the understanding of rights proceed from a morally serious and reflective process. However, as the popularity of Buttigieg’s proposals amply testifies, this wisdom of old is increasingly doubted. Indeed, America has entered a post-Constitutional age. The Constitution’s system of restraints on political power has withered under relentless calls for greater government under an increasingly unrestricted democratic will. This trend started under Woodrow Wilson and continued through the presidency of Barack Obama.

The origin of the progressive drive—to recast our Constitution as an instrument of majoritarian will—rests in the loss of a distinctive concept of the human person. Humans need first to order their souls. In turn, society must recognize that, although political power is needed to restrain human weaknesses—and the resulting threats to our basic rights and orderly processes of deliberation—this power itself requires restraint.

Wise founders, such as the framers of the American Constitution, understand constitutional order to have two levels: a written constitution that creates a government with sufficient energy to preserve liberty and other basic rights, but with restraints against majoritarian tyranny; and an unwritten constitution, inscribed in the character of the citizenry. The latter is a cultivated moral conscience and respect for restraint in each person, which reduce the need for governmental enforcement. We must order our own souls and cultivate a particular mindset, as we reinforce by written law our commitment to basic moral principles and to personal and collective restraint.

A Role Model of Resistance

We find an exemplar of this mindset in the “Great Dissenter,” Justice John Marshall Harlan the First—a powerful role model of resistance to contemporary calls to further erode the Constitution’s commitment to restraint. Harlan served on the Supreme Court from 1877 to 1911. As James Gordon argues, during his tenure Harlan held a view of human nature to the effect that humans must “subdue [their] passions” and create “self-control” through “moral progress of the heart,” requiring the hard work of forging character and inner restraint. Harlan felt that such personal constitutionalism was necessary for the rule of law to endure, because he believed in everyone’s tendency toward iniquity.

Read more at The Public Discourse

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