Taking the Constitution Seriously

...It seems, for Berns, that taking the Constitution seriously would mean returning many issues to the states (that is, it would undo much of the application of provisions of the Bill of Rights to the states...

...But so far as most Protestant Christianity in the United States today is concerned, it rejects rule in the name of religion, in practice as well as doctrine...

...Change in this respect would enhance the ability of states to foster the "conditions of republicanism...

...He has a sure grip on the history of the founding period, and skillfully explicates the rights-securing principles of the framers' "new science of politics," which included representation, separation of powers, and an extended, commercial republic...

...Indeed, Berns rejects that view of America which argues for the minimizing, if not the ultimate elimination, of all vestiges of the "pre-modern world," including religion, in pursuit of a society that is libertarian (except, of course, in matters of economics...

...Here Berns makes a point of considerable force...

...Taking the Constiturr he Democratic party is once again 1 in control of both houses of Congress, and once again our legislators are on the verge of committing many serious mistakes, including one whose ramifications may hinder our economy for years to come...

...The problem with this argument is that Berns wrongly assumes religions and religious people are alike in the ways he indicates...

...The New Testament broke with that, and while it does recognize civil government as an institution under God, it does not spell out how government should be organized—it does not contain some theology of temporal rule...

...Someone like me, who believes in God but does not hang heretics, is free to use his reason in thinking about politics...

...For Berns, it seems, a sincere religious believer must have a low regard for the Constitution and the kind of society it has helped establish...

...Commerce . . . leads men, perhaps imperceptibly, away from the continuous concern with those issues characteristic of life in a preconstitutional age...

...But lest there be any misunderstanding, I should point out that Berns is not a cultured despiser of religion...

...The only such commonwealth sanctioned in the Bible appears in the Old Testament—the state of Israel...

...As I read the New Testament, it contains a letter to the Philippians but not one to the Politicians...

...But this model, even if a right one, isn't the only one, nor is there anything in Christianity or Judaism that forbids commercial life...

...Nor does there appear in modern religion cases the kind of appreciation for the importance of religion to our polity that the Founders shared...

...Much of what Berns says in criticism of the Court is on the mark...

...It's bad theology...

...In other words, they accept that God has "provided rule for mankind...

...For me—a Protestant—the idea of a religious commonwealth is not only bad politics...

...This is possible because while it is true (from the perspective of religion) that God made every soul for Himself, He also made man free to choose God...

...Berns correctly relates the Founders' understanding that religion and other "conditions of republicanism" (such as family and education) were properly to be the concern of the states, not the national government...

...Berns remarks at length on the illegitimate "rights creation" of the Supreme Court that made possible its new law—and the nullifying of state law—and criticizes the Court for abusing its independence...

...It has Paul, but not Publius...

...This means construing it in its original sense, that is, in the way in which its provisions were understood by those who framed and ratified its various parts, not according to extra-constitutional ideals of the public good, however compelling they might be...

...he would keep the times in tune with the Constitution, as he says more than once, not the other way round...

...In this process, Berns writes, the Court has become a political institution, causing "its critics to charge it with making law and its friends to praise it for the sort of law it made...

...It is for this reason that care must be taken, as Berns says, "not to abolish it or neglect it to such an extent that it would languish and die...

...That document declares the rights with which each of us is equally endowed, and states that it is to secure those rights that governments are instituted...

...Many of its decisions involving the "conditions of republicanism" betray ignorance of the subtleties of the Founders' political science...

...Further, while it does articulate principles of relevance to politics—concerning the importance and distinctiveness of each individual, for example—such principles are not unique to the New Testament and they enjoy support from non-religious sources...

...And from Berns's perspective, it would seem that this has happened, at least in some degree: the way religious people conduct themselves in modern America is certainly differentfrom how such people behaved during, say, the Crusades or the time of Charles I. Still, this isn't the whole of the matter...

...Nor does he attempt to explain it by looking only at the work of its framers...

...Where they took it for granted "that states would use the law to support the institution of the family," says Berns, such a sentiment does not appear in modern family cases...

...Berns's model for an authentic religious life seems to be that of a (to use his word) "preconstitutional" age: monk-like, constantly absorbed in reflecting on things above (and driving non-monks into war with their fellow men...

...They think "every commonwealth . . . is properly a religious commonwealth...

...Berns plainly is an "interpretivist" or "originalist...

...To his credit, he does not try to explain the Constitution by referring simply to what the Supreme Court has said about it in constitutional cases, as so often happens in law school classrooms...

...Berns correctly rejects the view that the idea of toleration rests on disbelief...

...B characterizes religious believ- 1. 3 ers as "the most zealous of partisans" who aren't "satisfied with being represented" and want always to "rule...

...This bill would force many American businesses to meet and confer with unions, local and state governments, and federal bureaucrats for the purpose of agreeing to an alternative to curtailing their operations...

...Walter Berns has devoted his distinguished academic career to thinking about American politics and government, particularly in relation to thefounding period...

...Berns goes about this task with wit and style...

...The announced purpose is to give workers and communities time to cope with dislocation: a reasonable sounding goal, although surveys show that many businesses, both unionized and not, already do notify workers of impending layoffs or shutdowns, at least when they can do so without jeopardizing their survival by scaring off creditors and customers...

...Writes Berns: "Rather than being a whole way of life, religion, in the commercial republic, becomes merely a part of life . . . consigned or relegated to one day (or one morning) a week...

...True as well, there are such religions today...

...An American might busy himself in commerce or the various pursuits it supports but also believe he is at the same time serving God...

...All of this Berns does well enough, as a historical matter...

...For theological reasons, I also think a sincerely religious person can agree that religious liberty is at least a thing to be prized by society and protected by government, if not also a "natural right...

...Taking the Constitution Seriously undertakes to show how our basic law protects rights...

...Yet his explanation of this aspect of our constitutional order leads to an odd and I think unnecessary conclusion...

...The Bill of Rights, whose provisions originally applied only to the federal government, has in substantial measure been applied to the states by the Supreme Court, TAKING THE CONSTITUTION SERIOUSLY Walter Berns/Simon and Schuster/$19.95 Terry Eastland 46 THE AMERICAN SPECTATOR JANUARY 1988 through its interpretation of the Fourteenth Amendment, beginning in 1925...

...As Berns puts it, "old-fashioned" laws have been "weighed in the balance" with "new-fashioned" principles, and been found wanting—and thus America has been "deconstructed...

...Whether this procedural change is advisable is debatable (and any High Court nominee who advocated it would fail to be confirmed...

...They get this idea from "revealed religion" (specifically from the New Testament) from which they learn that "souls belong to God and that . . . He has revealed how they should be cared for...

...And certainly there are millions of Americans who believe they are doing so daily, not just on Sundays...

...A union-sponsored measure championed by Senator Howard Metzenbaum would compel firms in many instances to give months of notice about plant closings and even layoffs to employees...

...part n the final pa of his book, which is Ino longer an "explanation" of the Constitution but an inquiry into its interpretations by judges, Berns discusses what he calls the "deconstructing" of America...

...True, there were religions in what Berns calls the "premodern age" (i.e., before Hobbes) that maintained every commonwealth must be a religious commonwealth...

...So I differ with Berns on some aspects of his treatment of religion: it's not schizophrenic to believe in God and also to like our Constitution and our country...

...Yet the measure before Congress now is merely a cat's-paw for more radical legislation introduced earlier in 1987, which would hinder or prevent firms from laying off workers or shutting down altogether...

...As a result, the Court has voided many state laws and practices dealing with the "conditions of republicanism...

...Berns concludes his criticism of the modern Court with a plea that it take the Constitution seriously...

...For Berns, as for the Founders, religion has positive attributes...

...There is the radical Islamic movement in Tehran, which Berns cites...

...Whether or not in fact they are, of course, and whether or not religious devotees in the "preconstitutional" age were in fact serving God, is not something mere mortals can determine...

...Taking the Constitution Seriously is thoughtful and informative, one of the best books written on our founding charter in a year understandably crowded with publications on the Constitution...

...Yet he goes on to argue that toleration probably does "depend on a way of life from which at least weakened belief follows as a consequence...

...Instead, Berns offers an explanation that understands the Constitution in light of the Declaration of Independence...

...My differences with the book concern its most interesting parts—those dealing with religion...

...For more than three decades his scholarly and popular work has concerned the relationship between liberty and virtue, between those "new-fashioned principles" and "old-fashioned laws...

...Yet as he points out, the ability of the states to deal effectively in this area has been seriously compromised...

...I agree with Berns, although he does leave some important matters of detail unaddressed...

...it can help shape the character of citizens, making them honest, generous, and concerned about their neighbor...

...This way of life is the one contemplated by a commercial republic: the framers believed that men would absorb themselves, as Berns puts it, in "material gratification or comfortable preservation," and that in consequence they would lose their interest in things above...

...Revealed religion —specifically the New Testament—does not say how men "should be cared for" by government...

...More urgently needed is the development of better substantive doctrine, so that when the Court construes provisions of the Bill of Rights it does so in ways more faithful to the original Constitution...

...Most Protestants, and for that matter most Catholics and Jews, are quite satisfied "with being represented...

...In the absence of revelation that obliges government to dictate how souls "should be cared for," no one should be forced by the state to choose God...

...Believing in this divine revelation, they must deny that liberty of conscience is a "natural right...

...The matter of eternity is properly between God and man alone, and thus it is proper for law to secure religious liberty...

...There is in our own country the "dominion" theology associated with Pat Robertson, which seems to call for a kind of theocracy...

...Berns shares the view of the Founders that religion, while it must be consigned to the private sphere, is nonetheless vital to the political health of the nation...

...Berns sets forth the history of the "religious problem," as he calls it, and shows why securing rights required separating church and state...

...The evidence is strong that major framers believed commercial pursuits would "tame" or "soften" the religious impulses of man, and "weaken" belief...

...Such believers—and Berns seems to mean all believers, today as Terry Eastland is director of public affairs for the Justice Department.well as ages past—want to "shape the character" of their fellow citizens, cleansing them of sin...