Harry Clor, Library of Law and Liberty, March 2, 2015.
It is fair to say, I think, that constitutionalism and patriotism are the predominant themes in Berns’s thought—at least in his later years. His central idea on constitutionalism is that it is largely a matter of devotion to “forms” or formalities. As he wrote in Taking the Constitution Seriously (1987): “Constitutional government is above all government by due or formal processes, processes governed by rules.” The message I get is that the requirement for government, and the majorities it represents, to act by and under general rules is perhaps our primary protection of individual liberty. This is the venerable idea of the rule of law.
To Berns’s point about liberty I would add that the rule of law, by its restriction of arbitrariness or containment of subjectivity, can be regarded as a contributor to rationality in public affairs. But one may consider (as Berns’s argument seemingly doesn’t) that there is such a thing as too much of it. The too-much is what we periodically refer to as “legalism” or “formalism”—an excessively rule-governed way of thinking and acting that limits the employment of reason. The relation between the rule of law and the rule of reason is an interestingly complex question for legal philosophy. Berns didn’t have to tackle it, but I wish he had.
On the issue of patriotism, Berns combines enthusiastic endorsement and nuanced analysis. His 2001 work Making Patriots is devoted to the country’s critical need for public-spirited citizens, and to the kind of education that promotes it. Bern is no apologist for “my country right or wrong”-style nationalism; American patriotism, he argues, is mostly something different from that. Our authentic patriotism is a love and appreciation for a country that truly deserves it. We deserve it because, unlike many other nations, we have afforded men and women of “all sorts and conditions” the opportunity to pursue happiness as they conceive happiness. Abraham Lincoln is quoted to this effect: While our devotion to America involves, of course, the love of what is our own, more so it is a commitment to universal principles as affirmed by the Declaration of Independence.
Library of Law and Liberty