Orestes Brownson’s New England and the Unwritten Constitution

[Chris]

A bit of the past that time has forgotten.

Orestes Brownson’s New England and the Unwritten Constitution

The danger of majoritarian tyranny hangs over republics. The dilemma of constituting a virtuous republic while also restricting interests, sects, and factions’ use of unchecked political power possessed eighteenth century American constitutionalists. States’ Rights as a means to curb the concentration of power claimed few champions more eloquent than the New Englander Orestes Brownson. Brownson’s affection for his home region helped him align politically with the South Carolinian John C. Calhoun and write voluminously on states’ need to check Federal authority. His love for New England history and culture, what Brownson designated the region’s “unwritten constitution,” energized his pen.

Orestes Brownson rejected social contract theory and suggested that written constitutions reflecting the unique identity of historically-developed human communities—shielding their traditions, habits, and way of life—best-protected liberty. “Forms of government are like the forms of shoes—those are best which best fit the feet that are to wear them,” he observed.[1] Written constitutions must “fit” the unwritten ones. This unwritten constitution, which comprised what Edmund Burke called communities’ “little platoons,” necessitated states’ rights federalism as a barrier against factional government.

By denying social contract theory, Brownson rejected, not James Madison’s perception of factional danger, but his solution in the separation of powers. A social contract was a negation of history and a denial of human communities, or as Peter J. Stanlis described it, “false of historical fact, false to human nature, and therefore false to a sound political philosophy.”[2] Communities developed organically over time and in particular places; government was not an isolated theoretical phenomenon but a continual development under historical circumstances—“history records no instance of a nation existing as an inorganic mass organizing itself into a political community.”[3] Therefore, written constitutions did not go far enough. They must consider “the total historical inheritance” of a community, in other words, its “unwritten constitution.”[4]...

The value and place of towns reminds me of Alexis de Tocqueville's description of them in Democracy in America.

As the institutional embodiment of the historical community, the New England town was society writ small, encompassing the state, the law, the church, and families. “In what are called the New England states, the best-governed portion of the nation, each town is a corporation, having important powers and the charge of all purely local matters.”[13] The town became a “little republic” and worked hard to make its members loyal republicans and defenders of liberty. “The first settlers of New England,” Brownson wrote, “were ardent friends of liberty, but they were not democrats, and had scarcely a single principle in common with modern democracy… [New England] owed much of the peculiar character of her people, the excellence of her institutions, her comparative freedom from demagogues, and the admirable working of her government” to the region’s towns.[14] Towns, therefore, bore natural leaders “trained from boyhood to the habits of self-government.”[15]

[Sergeant Gleed]

Well, on the local level common sense and common law (unwritten precedent) have their place in resolving minor issues that are not relevant on larger scales, and yes, the purpose of federalism was intended to limit the desire of tyrants to micro-manage everything under the sun.

So the states were supposed to regulate seat - belt use and drinking ages and marriage laws, none of which were ever the proper concern of the Congress.

Clearly that admirable principle has been raped, and federal control of everything has led to disaster.

[Chris]

Well, on the local level common sense and common law (unwritten precedent) have their place in resolving minor issues that are not relevant on larger scales, and yes, the purpose of federalism was intended to limit the desire of tyrants to micro-manage everything under the sun.

So the states were supposed to regulate seat - belt use and drinking ages and marriage laws, none of which were ever the proper concern of the Congress.

Clearly that admirable principle has been raped, and federal control of everything has led to disaster.

I think what Orestes had in mind was more bottom-up self-government starting at the level of a town, and not top-down delegation of power over minor issues.