Taking the Constitution seriously: Walter Berns

Constitution

The underlying position of Walter Berns' book, Taking the Constitution Seriously, is that the philosophical foundations that were infused into the Declaration of Independence were directly responsible for the ultimate form that the Constitution of the United States eventually took, and accordingly, the moral perspective of the nation that was created. He notes that many historians have been inclined to doubt that the founding fathers of the United States seriously included the notion of self-evidentiary unalienable rights as a launching pad for the nation, but that their importance only grew with time. Berns seeks to dispel this idea by underlining the significance of building a nation upon such unique grounds, in particular, when there was no tangible impetus for doing so. He begins his discussion in his first chapter entitled "Constituting the People of the United States"; here he identifies the universal nature of the philosophy put forward in the Declaration of Independence and then discusses how numerous groups were forced to struggle to attain the consequences of that philosophy. Essentially, despite the grand proclamations of the Declaration of Independence, America was and is fragmented, and it is through the Constitution that the injustices in our nation can be addressed.

Berns, in his first chapter, seeks to explain how some of the major members of society that were not initially constituted managed to work their way into what emerged as mainstream American society. He notes that when the United States was founded, not everyone was deemed worthy to enter into the Lockean social contract, despite the invocation of natural law; "among the putatively unsuitable at the beginning were the Indians, the blacks, and, in the opinion of what proved to be an insignificant minority, the 'Jews, Turks, Papists, and Infidels.'" (Berns, 22). Berns believes that the Declaration of Independence is of utmost importance because it was the first concerted effort by the Americans to produce a constituting law; in other words, it was a document intended to justify the formation of a new government by identifying the people to which it applied. Accordingly, the exclusions that limited the universal application of its philosophy stood as inconsistencies that needed to be eliminated in order for there to truly be a common ground upon which a workable nation could be constructed.

First, Berns discusses the elemental principles that backed the Declaration of Independence's position of natural and self evident human rights as argued by John Locke and Thomas Hobbes. Locke used the blank sheet conception of man to assert that all men are naturally in a state of equality. This makes up one of the natural states man is in; with the other being perfect freedom. This freedom, connected with equality, permits every man utter sovereignty over his own faculties and decisions. Freedom itself is a result of the Law of Nature, as Locke perceives it. The Law of Nature has been arrived at through internal reflection upon the processes of the world that Locke has observed throughout his life, and is discoverable through the process of reason as applied to God's will.

To Locke, God created man in his own image, independent of the trivial classifications and divisions we place upon human beings; so, in the eyes of God we are all equal. This equality demands that each man's sovereign rights to govern himself be respected. Recognizing this, according to Locke, a natural law can be derived; it is a law that ensures the freedom of individuals is complete, insofar as it fails to interfere with the freedom of others. Essentially, the restriction upon this "perfect freedom" that man is born into is that the freedom of others cannot be interrupted. Berns notes, "In Locke's version, civil society is formed when everyone 'has acquitted his natural power [to punish offenders], resigned it into the hands of the community.'" (Berns, 27). Locke's philosophy, in particular, constructed what, to Berns, is the primary difference between American society and all that which came before it: "Unlike the ancients who spoke of virtue and judged political regimes in its light, we speak of rights and measure political things on a yardstick calibrated in rights." (Berns, 28). The assertion that these rights are innate places them before the structuring of society and government, and makes the task for a society built out of these principles to find some way to attain them.

This broad perspective sets the stage for Berns' handling of the segments of society that were understood to be unworthy or unwilling to enter into the social contract of the United States. The Tories are the first subset of colonial society that Berns addresses. To him, they occupy a unique place in the discussion of constituting the people of the United States because they categorically opposed the premises of the United States upon philosophical or political grounds. He notes that many were loyalists to the crown simply for personal and economic reasons and others for religious reasons -- like the Quakers -- but the most interesting, to Berns, are those who were dedicated monarchists. They first two subsets of Tories were somewhat assimilated into American society, but he implies that the exile of the third subset was essential to the continuity of the United States. After all, the United Empire Loyalists still exist today -- their beliefs could not be overcome simply through warfare.

The next group that Berns discusses is the American Indians, who have yet to truly attain equality. Once again, he summons John Locke to explain why they were considered undeserving of protection under the natural law; "Of greatest significance is the fact... that men and peoples are not equally civilized, a consideration to be weighed when deciding with whom to contract when constituting a civil society." (Berns, 39). So, because they were perceived to be barbarous peoples, Indians were denied to opportunity to become part of the United States.

Berns has a more difficult time explaining why the American social contract could not be extended to black Americans, but he nonetheless seems to justify the actions of the founding fathers. He quotes Lincoln as having said of slavery that it should be regarded "as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection necessary." (Berns, 44). Thus, its toleration is to be understood as an act of utility, not a blatant violation of morality.