Orestes Brownson on De Maistre and the American Constitution

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From http://orestesbrownson.com/248.html :

Bob Dylan Roof

Brownson does an excellent job of surveying Maistre's generative theory of constitutions here and he is correct that Maistre believed the principle applied to both absolute monarchies and republics. Brownson is also correct in his conclusion that Maistre believed different constitutions were appropriate for different peoples at different times. However, this relativist perspective did not prevent Maistre from affixing restrictions to different constitutions. Most important in the context of Brownson's America is Maistre's conclusion, found in the Considerations , that the concept "large republic" is analytically impossible (like the concept of a square circle) because it is practically impossible to take the representative principle of the republic (that every man rules and is ruled in turn) and apply it to a nation with a large population. Indeed Maistre calculates that Frenchmen would have to live thousands of years in order to truly satisfy the republican principle of representation on such a scale. Thus the question did not concern, for Maistre, whether republics were superior in theory to monarchies, but rather whether the nation would adequately be cared for, either by a set of transient representatives who could never truly represent the French population, or a permanent owner and caretaker of the country.

I believe, however, that Maistre's ideological qualms with non-monarchical constitutions can be separated from his generative theory of constitutions. Brownson seems to agree and I think he applies the theory to our Constitution adequately.

For a systematized version of Maistre's theory, I recommend Schmitt's Constitutional Theory , which begins from a rule-stratification theory of legal norms. The stratification separates absolutely the constitution (in Maistre's sense of the term) from constitutional laws, which are created by legislation. If one accepts this stratification between the existential historical fact of constitutional generation and the formal laws codified by the institutions set up in the wake of this generation, then you can avoid many of the problems associated with parasitic legislation, administration and adjudication - that is, the problem of hostile activity that is consistent with formal rules of the constitution, but which takes aim at the legitimacy of the initial constitutive act and the historical context of that act.

From this principle Schmitt concluded that the historical decision of the German people for a representative democracy could not be legally nullified by formal legislation establishing a Soviet Republic or an NS leadership principle, just as Brownson concludes that the historical fact of the generation of the American constitution precludes the legal establishment of a monarchy on American soil. Of course the generative principle was not applied in Germany and the NS were permitted to legally acquire power.

The importance of Generative legal philosophy becomes apparent when one examines the history of legislation and adjudication in all liberal societies. In every case, with the possible exception of the modern German Federation and its Streitbare Demokratie , the legal and political culture has adhered to Thomas Paine's nihilistic formalism (a constitution only exists if it fits in my pocket).