Finding Our Constitutional Bearings
Vanishing Point: In Search of Our Constitutional Future
By Edwin Hagenstein
Real Clear Publishing, 184 pages, $16
There are two related questions at the center of American politics at the moment. The first is how did we get here, to a point where debate has become about shouting at each other and the level of trust in government institutions has vanished down a rabbit hole. The second is what can be done about it.
Hagenstein brings these diverse views together in a concluding chapter, and he does so with clarity and insight.
Edwin Hagenstein is a respected author and essayist whose 2020 book The Language of Liberty: A Citizen’s Vocabulary was a worthy exploration of our political history. In Vanishing Point: In Search of Our Constitutional Future he casts a wider net. He believes the depth and intensity of the impasses before us make for a “constitutional moment,” requiring choices which will determine the country’s future path. It is not the first time this has happened, he says, and in the introductory chapter he walks through previous “moments.”
This is useful context but the real value of the book is Hagenstein’s analysis of the views of three prominent thinkers with different perspectives. Richard Epstein is a classical liberal. Cass Sunstein writes from a progressive perspective. Adrian Vermeule is a conservative, although some of his opinions fall outside the mainstream. They have all been prolific writers, so Hagenstein has no shortage of source material. The coda of the book is an interview with Epstein, which adds a personal dimension to the academic discussions.
Anyone expecting a punch-up between professors will be disappointed. The three of them have always treated opposing views and individuals with respect. In fact, Sunstein and Vermeule collaborated on an interesting book in 2020, Law and Leviathan: Redeeming the Administrative State.
Each of the three see themselves as working within a tradition of constitutional thought. Epstein approaches the Constitution as a liberal document, tracing the laws relating to private property as a wellspring of ideas. The vision of the Constitution writers, he says, was one of limited government in a society of individuals capable of settling many disputes by themselves. It is this sense of freedom from domination by the state which has always given the Constitution its legitimacy, he believes.
But over the past 70 years or so government intervention has come to be seen as a solution to every issue. Epstein accepts that society is much more complex than the founders could possibly imagine but the answer is not endless demands for action from Washington. The costs of government intervention, he says, should be carefully weighed against the diminution of freedom.
Sunstein, on the other hand, sees the Constitution as a dynamic creature, and he argues that a classical liberal interpretation would tie the government’s hands in addressing crucial economic and social challenges. He finds plenty of judicial decisions and legislation to support his views, and he offers (qualified) support for the growth of government as a counter to other powerful players.
But at the same time he has no time for heavy-handed government intervention for its own sake. Significantly, Sunstein was administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012, and the experience showed him the value of applying cost-benefit analysis to regulatory initiatives. He does not endorse disruption of the status quo as inherently good, as many progressives do. The way to find a balanced role for government, according to Sunstein, is through fair-minded, informed discourse. This was how the Constitution came about, and the validity of the process should not be forgotten. Hagenstein sums up Sunstein’s progressive approach as: “Real democracy must promote reason and reflection through deliberation; that deliberation must be open to diverse views; and citizens must not take pre-existing norms as natural or unalterable.”
While Sunstein and Vermeule have some common ground, especially on the need for consensus before sweeping intervention by the state, Vermeule disagrees with the idea of the Constitution as a moving, ever-expanding feast of rights. He believes there are natural laws of social interaction, and he returns to the concept of ius, which basically translates to “the right” and which formed the basis of Roman law. The Constitution has endured because it established an effective framework for turning natural laws into practical institutions of government.
However, he does not accept the originalist views of the Constitution held by some hard-line conservatives. One can determine and utilize the essence of natural laws as a basis for good governance and a healthy society without assuming that the nation’s founders knew in detail how the future would unfold. The loss of understanding of the nature of ius — and, moreover, the view that no natural laws exist — lies at the root of our current discord. Rediscovering and re-embracing that essence is the path of true progress, says Vermeule.
Equally, there has to be acceptance that mortals are imperfect, and that any attempt at social engineering will ultimately fail. Here is where the conflict between collectivist progressives and individualist conservatives is at its most stark. “In other words, perfectionist liberalism will not live side by side with more conservative elements in society, but will instead act to drive them out,” says Hagenstein of Vermeule’s conclusion.
Is Civil Debate Possible?
Hagenstein brings these diverse views together in a concluding chapter, and he does so with clarity and insight. Nevertheless, it must be said that there are some serious problems with Vanishing Point. In particular, Sunstein’s call for civil debate seems remarkably naïve. The progressive faction of our society does not seem at all interested in reasoned deliberation. These are the people who specialize in shouting down dissenters and banning everything that causes them the slightest offence. If Sunstein is aware of this — and how can he not be? — he gives no sign. Of course, there are those on the conservative side who are always ready to use scorched-earth rhetoric as well, which demonstrates that Sunstein’s belief that our problems can be solved by everyone sitting down at a table for a sensible discussion is rather fanciful.
This is a sign that the book is better at finding the source of animosity than proposing solutions. Hagenstein admits that there are no answers in sight when he says: “Our constitutional ‘moment’ might last a very long time, perhaps many decades.” Or maybe it won’t be that long. He also suggests that the worst excesses of polarization may have burned out and that cooler heads might be ready to step forward.
Well, maybe. Perhaps when the current occupant of the White House vacates the premises he will take a lot of the overheated passions, from both belligerent opponents and fervent supporters, with him. In the meantime, Vanishing Point is good food for thought, and proof that civil discourse, even between people who hold fundamentally opposing views, is still possible.
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Derek Parker is a freelance writer and reviewer, working mainly in the fields of politics, geopolitics, economics, and the drivers of social change.