It is true that what is settled by custom, though it be not good, yet at least it is fit. And those things which have long gone together are as it were confederate within themselves: whereas new things piece not so well, but though they help by their utility, yet they trouble by their incomformity. Besides, they are like strangers, more admired and less favoured. All this were true, if time stood still, which contrariwise moveth so round that a froward retention of custom is as turbulent a thing as an innovation; and they that reverence too much old times are but a scorn to the new…
One of the core objections leveled against popular constitutionalism is that it is destabilizing. Popular control over constitutional change, on this view, would too easily allow rapid, heedless changes to constitutional law and doctrine. This is a mistaken characterization of popular constitutionalism, but more fundamentally it’s a mistaken understanding of the value of political stability.
It is a commonplace in political rhetoric to think of “stability” as something that slowly builds up over time, and that it is fragile and delicate – and therefore in need of constant care and protection. Political stability, on this reading, is like a coral reef in that it can only grow and develop slowly, but it can be damaged or destroyed overnight if it isn’t protected. This is what being “conservative” used to mean – being protective of established institutions and skeptical about radical change. Burke said this; so did G. K. Chesterton, and Michael Oakeshott, and other (sans-“neo”) conservatives. The problem is that they’re rather mistaken.
Burke argued that “[c]ustom reconciles us to all things” in art as well as political life, and is often held up as example of principled conservatism; that is, a conseratism that is an ideology – valuing establishing institutions, trusting tradition, and skeptical of radical change – rather than a tendency, a preference for the old and familiar simply for familiarity’s sake. Oakeshott is often held up as a more recent example of a skeptical conservative in the so-called “classical liberal” tradition. Both thinkers cautioned against an enthusiasm for change or sweeping reform, on the grounds that doing so could usher in unanticipated consequences and instability. They emphasized a view of the development of political institutions in which they are built slowly over time, and those bits which survive over long stretches of time should be regarded as “fit” or serving some useful purpose.
Chesterton – who is not always thought of as a political thinker – says much the same, but with rather more flair:
It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. (from The Thing: Why I Am a Catholic)
Burke, Chesterton, and Oakeshott were all subtle thinkers; they did not treat political institutions as sacred, and they recognized – sometimes implicitly, sometimes explicitly – that they would change over time. They weren’t necessarily paleo-conservatives, of the kind lampooned in Borges’ story “Averroës’s Search,” who believe that that what is old is ipso facto good and justified. (It should be noted, however, that Oakeshott, along with Friedrich von Hayek and Carl Schmitt, was part of what Perry Anderson called ”the intransigent Right;” and there are good reasons to suppose that Burke’s conservatism was less principled than might be supposed.) But they and others like them looked back in time, not forward, in order to understand how political stability and institutional continuity might be preserved. Change, especially rapid change, was suspect; reforms should be piecemeal, and enthusiasm met with skepticism. This is a mistaken notion, I think, at least with respect to constitutional development in the United States.
One of the loci classici in the study of political stability is J. H. Plumb’s The Growth of Political Stability in Early Eighteenth-Century England, 1675-1725. In the book, Plumb notes that
There is a general folk belief, derived largely from Burke and the nineteenth-century historians, that political stability is of slow, coral-like growth; the result of time, circumstances, prudence, experience, wisdom, slowly building up over the centuries. Nothing is, I think, farther from the truth…Political stability, when it comes, often happens to a society quite quickly, as suddenly as water becomes ice. (quoted in Tony Judt’s Postwar)
The periods of comparative political stability in U.S. history – such as the Era of Good Feelings, Reconstruction after the Civil War, the state-building period at the beginning of the twentieth century, the post-World War II economic boom, the Reagan era – were not the result of “slow, coral-like growth.” They were temporary respites from the churning of political contestation, often bought at a high price in institutional power, political coalitions, or even lives, and they were often charactered by superficial or perceived levels of stability that concealed deeper divisions and ongoing conflicts and disagreement. And when disagreement upsets stability, it is not the case that the resulting destabilization is sui generis. We would be mistaken to infer, for example, that no one was agitating on behalf of black civil rights before the Civil Rights Era; but national and Southern elites managed to suppress the institutional and cultural precursors to the Civil Rights Movement during the Depression, World War II, and into the Eisenhower presidency. Political stability didn’t suddenly evaporate in the South when “Bull” Connor turned firehoses and police dogs on protesters in Selma in 1963. Instead, the bargains, cultural logics, and configurations of power that had sustained white supremacy finally began to fray. And the stability that had preceded the protests was not the result of wisdom or prudence or the generally relaxed attitude commended to us by Chesterton; it was actively maintained by the Jim Crow system and through the power of political institutions dominated by whites.
A more recent formulation of Plumb’s view can be found in the works of political scientist Terry Moe, who argues against the idea that “institutions emerge as good things, and it is their goodness that ultimately explains them: they exist and take the forms they do because they make people better of. This is why people choose them and stick with them.” It’s a cousin of the “just world fallacy,” the Panglossian view that things are already the way they’re supposed to be. The folk wisdom that Plumb and Moe rightly reject – the idea that it must somehow be the case that we have the institutions that we have because they’re good – has a lot of rhetorical purchase, which is why it’s necessary to resist it when thinking about popular constitutionalism and constitutional change. The Constitution is not a delicate flower that grew and blossomed slowly over time; it began as a disruptive, destabilizing move in the national politics of the early republic, and the meaning and authority of its text and the institutions it describes have been contested ever since.