Constitution

The conservative is a constitutionalist by disposition. The tradition that produced the English settlement of 1688, the American framers’ work in 1787, and the gradual development of parliamentary government across the English-speaking world has placed the constitution — the fundamental framework of political authority — at the centre of its political thinking. What divides the conservative from other constitutionalist traditions is not the importance of the constitution but the account of what a constitution is, how it comes into being, and how it is sustained.

The conservative account treats constitutions as historical achievements: the slow accumulation of institutional practice, legal doctrine, and political custom by which a particular people has worked out how to govern itself without destroying itself. Such constitutions are not designed; they are grown, and their authority rests on the depth of their roots in the life of the community they organise.

Key takeaways

• A constitution, in the conservative tradition, is the inherited framework of fundamental law and political custom by which a political community organises its authority and limits the power of those who hold it — older and broader than any single written document and not reducible to one.
• The tradition distinguishes the older organic conception of a constitution — slowly developed, partly written and partly customary, embedded in the practice of a particular people — from the modern rationalist conception of a constitution as a programmatic charter designed from first principles and imposed on the materials of social life.
• Conservative defence of constitutionalism rests on the conviction that the limitation of political power is the central problem of political life and that effective limitation is achieved through inherited institutions and developed practice rather than through the assertion of abstract principles unsupported by either.

History and context

The English constitutional tradition is the principal source of the conservative conception. Its central documents — Magna Carta (1215), the Petition of Right (1628), the Bill of Rights (1689), the Act of Settlement (1701) — are not a designed framework but a sequence of historical settlements, each addressing the constitutional crisis of its moment and each becoming, in retrospect, part of the inherited framework. The English constitution in this sense is partly written, partly customary, and entirely cumulative: the product of seven centuries of political conflict and resolution.¹

The American framers worked within this tradition while doing something new. The Constitutional Convention of 1787 produced a written document of unusual brevity and structural coherence, but the framers themselves understood it as drawing on the inherited materials of English constitutionalism — the common-law tradition, the doctrines of mixed government and separation of powers, the bills of rights of the colonial charters — rather than as a fresh creation from first principles. The Federalist Papers (1787–1788), particularly Madison’s contributions on the structure of government and Hamilton’s on the judiciary, articulated the framework as a development of the inherited tradition.²

Edmund Burke’s Reflections on the Revolution in France (1790) supplied the canonical conservative theorisation. Burke contrasted the English approach — extending established liberties under existing constitutional forms — with the French project of dissolving the inherited order and constructing a new constitution from first principles. The English approach, in Burke’s reading, worked because it built on materials whose authority was already settled in the practice of the political community; the French approach failed because it sought to ground political authority in a theoretical construction that could not, by its nature, command the loyalty that political order requires.

The nineteenth century developed the conservative reading of constitutionalism in two main streams. The English stream, represented by Walter Bagehot’s The English Constitution (1867), distinguished the dignified parts of the constitution — the Crown, the ceremonial — from the efficient parts — Cabinet government, the Commons — and showed how the relation between them produced the actual working order of the British state.³ The American stream, represented by Joseph Story’s Commentaries on the Constitution of the United States (1833) and later by the constitutional jurisprudence of John Marshall, articulated the principles of judicial review and federal structure that have shaped American constitutional practice ever since.

The twentieth century brought sharp departures from the inherited conception. The Weimar constitutional theorist Carl Schmitt argued that the inherited liberal constitutionalism rested on a theological foundation it had ceased to acknowledge and that its formal procedures could not, by themselves, sustain political order in moments of genuine crisis.⁴ Schmitt’s critique cuts in directions some conservatives have followed and others have resisted. The post-war development of the European Convention on Human Rights and the rise of constitutional adjudication on the American model in many European jurisdictions raised questions, addressed by conservative writers such as Robert Bork, that concern the appropriate role of judicial interpretation in a constitutional order.

Roger Scruton’s later writing, particularly The Meaning of Conservatism (1980) and England: An Elegy (2000), developed the cultural side of the conservative account: the constitution as the institutional expression of a settled national life, and the threat posed to it by the displacement of national institutions into supranational frameworks whose legitimacy rested on assertion rather than inheritance.⁵

The conservative position

Three claims structure the tradition.

First, constitutions are inherited rather than designed. The conservative reading holds that the authority of a constitution rests on its embeddedness in the political life of the community it organises, and that such embeddedness is achieved only through time. Constitutions designed from first principles and imposed on a political community without that history have, in the historical record, repeatedly failed to take hold or have done so only at the cost of the very order they were intended to constitute.

Second, the function of a constitution is to limit power. The central political problem the conservative tradition addresses is the danger of concentrated and arbitrary power, whether held by a monarch, an assembly, an executive, or an administrative apparatus. The constitution accomplishes its work by dividing power, by subjecting its exercise to settled rules, and by providing institutional channels through which power can be challenged without the political community itself being broken.

Third, constitutional government requires constitutional culture. The formal provisions of any constitution operate only within a political culture that recognises them as authoritative. The conservative reading holds that this culture is itself an inheritance — the result of long political education in the habits of constitutional argument and constitutional obedience — and that its erosion produces the slow decomposition of constitutional government regardless of the formal text remaining in force.

Differing positions

The rationalist constitutional position, with roots in the French Revolutionary tradition and continuing influence in much contemporary constitutional theory, holds that a constitution can and should be derived from first principles of justice and applied to the political community as a designed framework. The conservative reply concedes the seriousness of the demand for principled justification but contests the assumption that political authority can be grounded in principle alone, independent of the practice and inheritance that actually sustain it.

The legal-positivist position, developed by H.L.A. Hart and Joseph Raz, treats constitutional law as a system of rules whose authority is established by social fact rather than by historical inheritance or by moral foundation. The conservative reading shares the positivist’s emphasis on the actual practice of legal recognition but locates the source of that recognition in the inherited culture of the political community rather than in the abstract rule of recognition the positivist describes.

The progressive or living-constitutionalist position holds that the constitution must be reinterpreted by each generation to address the conditions of its time, and that fixed historical readings produce institutional paralysis. The conservative reply distinguishes legitimate development — extending established principles to new circumstances — from illegitimate revision — using the language of interpretation to introduce principles the inherited constitution does not contain.

References

1. J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957); F.W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1908).
2. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1787–1788), particularly Federalist Nos. 10, 39, 47–51, 78.
3. Walter Bagehot, The English Constitution (London: Chapman and Hall, 1867).
4. Carl Schmitt, Political Theology, trans. George Schwab (Cambridge, MA: MIT Press, 1985 [1922]); The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996 [1932]).
5. Roger Scruton, The Meaning of Conservatism (Harmondsworth: Penguin, 1980); England: An Elegy (London: Chatto & Windus, 2000).