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Unwritten Constitutionalist

To understand American conservatism, read Orestes Brownson.
orestes brownson

In The Conservative Mind, Russell Kirk identified Orestes Augustus Brownson (1803–76) as a foundational figure of American conservatism. Brownson emerged from the poverty and obscurity of backcountry Vermont. With less than a year of formal education, not only did he become a master of English prose, he also taught himself Latin, French, Italian, and German. His wide scope of learning enabled him to critique the latest trends in politics, philosophy, and theology with a gravity few American contemporaries could match. A prominent journalist, he was engaged in virtually all of the major political and religious controversies of his time. Lord Acton declared Brownson the most intellectually formidable figure he encountered during his visit to the United States.

Brownson’s voluminous writing, particularly on political theory, provides a clear and coherent set of philosophical principles that transcend his own times and have direct relevance to our predicament. He believed in applying the genius of the federal Constitution to revitalize America’s political life; restoring republican self-government while fending off rapacious private interests intent on plundering the public purse; and rebalancing state authority and individual liberty under the principle of man’s relational personhood, as revealed in his multi-dimensional social, familial, religious and economic life.

For Brownson, there was only one test: truth, and truth is not negotiable. Right reason, rigorously applied, is imperious. Brownson insisted that the premises of an argument be pressed to their logical conclusion. And he combined an impressive command of formal logic with an extraordinary capacity for literary expression. That is why his great body of work not only provides a wealth of insight into our past but can serve as a vital resource for modern conservatives.

The American conservative project has always required more than just theoretical individualism and the magic of the marketplace. Too many conservatives, however, make conservatism in America a doctrine rather than a practice grounded in the country’s unique political culture. They have overrelied on sources like free-market theory, the abstract principles in the Declaration of Independence, or simply the post-World War II role of the United States in attempting to maintain global hegemony for democracy.

But the conservative’s task must be to forge a theory of the American constitutional order that, in the words of Brownson, “secures at once the authority of the public and the freedom of the individual—the sovereignty of the people without social despotism, and individual freedom without anarchy.” And no one defends the achievements of American constitutionalism in the face of ideological assault better than Brownson. His biography itself is one of recovery from political madness.


Between the 1820s and 1840s the young Brownson underwent a series of intellectual and spiritual conversions: from Congregationalism to Unitarianism, then atheism, while at the same time, he aligned himself philosophically with the New England Transcendentalists. A man of the left, he pragmatically enlisted Christological imagery for social and political reform, channeling his formidable energies into radical movements that called into question the distinction between labor and capital.

In 1840, Brownson campaigned vigorously for President Martin Van Buren’s unsuccessful bid for reelection. That same year he published “The Laboring Classes” in the Boston Quarterly Review. Brownson predicted a coming class struggle between workers and owners. A victorious working class, he claimed, would pave the way to a revolutionary new social order that would eliminate inheritance, special privileges, and the hateful wage system.

Brownson’s explosive essay uncannily anticipated the arguments Karl Marx would employ eight years later in The Communist Manifesto. He was, Arthur Schlesinger Jr. observed, a “Marxist before Marx.” His extremist ideas on political economy got a hostile reception even as the Democratic defeat of 1840 administered an electoral education. President Van Buren’s loss to the Whig candidate, William Henry Harrison, left Brownson permanently disillusioned with partisan politics.

Having been “mugged by reality,” he revolted against the overblown promises of “popular democracy” and the notion that the voice of the “sovereign people” was the voice of God. The people had been easily duped, he thought, by the faux populism of the Whigs. Salvation, Brownson was coming to understand, would not be found in the leveling condition of democratic equality. Over the next four years, he argued himself into conservatism in politics and religion. In rejecting socialism, which he would come to label “social despotism,” he developed a new appreciation for the idea of limited government.

Yet at the same time, he refused to embrace the premises of radical individualism being powerfully expressed by the sundry radical liberals of his day. In wrestling with the problems of labor and capital, wealth and poverty, Brownson decided to reexamine and embrace an older, deeper, and richer intellectual tradition that justified life and liberty in civil society. He studied the great Western thinkers, particularly Aristotle and the Christian philosophy of Augustine and Aquinas, and he found answers in the classical tradition of natural law.

By 1844, Brownson’s intellectual and religious transformation was complete. He converted to Roman Catholicism, the religion of the then-despised and poverty-stricken Irish immigrant minority. He severed his relationship with the Democratic Review, an influential journal of what was then “liberal” opinion, and started Brownson’s Quarterly Review. He wrote as an uncompromising Catholic apologist, a stance that, at a time of intense anti-Catholic sentiment, weakened his popularity and damaged him professionally.

This change, though, wrought intellectual rewards. While rejecting the politics of the left-wing French philosopher Pierre Leroux (1798–1871), Brownson, inspired by Catholicism, nonetheless embraced Leroux’s principle that all persons live in communion with God, man, and nature. He transformed this “life by communion” philosophy into a foundational justification for constitutional government. Brownson argued that every man is, by nature, a relational person who exists with others to work, to love, and to pray. These higher ends of man provide the principles that limit government.

Now a realist regarding politics, Brownson was sobered as to its possibilities. He came to see political life as reflective of a people’s history, as well as their deeper cultural, philosophical, and theological assumptions about man, society, and God. True political science, he believed, fully embraces the study of government as a fact—what is—and as a right, what ought to be.

Brownson’s expansive aim became to articulate the providential or unwritten constitution of the United States—which is to say, what the country had been given by way of religious, cultural, social, legal, and economic inheritances. The distinctiveness of America’s written Constitution didn’t stand on its own but memorialized, as it were, society’s unwritten norms and mores. To elucidate them, Brownson stressed, required deference and humility.

In developing this argument, Brownson rejected the social contract teaching which held that an unattached mass of people creates, ex nihilo, government and a body of law on the basis of self-interest. Something must first determine the people: before the state there is a common history, culture, language, religion, and law that form a people into a body, making them capable of pursuing a common political project. This—the providential constitution—enables the actual organization of the state. Attempting to replace or discard the unwritten constitution was “state suicide,” Brownson said.

That each American was a citizen of a state government and a national government reflected the preexisting political settlement of the colonies. Constitutional federalism was a unique outgrowth of this. For Brownson, the constitutional framework of 1787 properly expressed the dialectical form of national and state political organization in America. Brownson urged that the national (general) and state (particular) governments need not be competitors: as he envisioned them, they would meet, in a complementary way, the natural requirements that move man from the local community outward to larger spheres of interaction.

As a fact, government is largely the product of historical development. This Brownson captures in his concept of “territorial democracy,” by which he meant the possession of a land by a historically formed people. The sovereign people of the United States are the territorial people of the United States, who have authorized, through the federal Constitution of 1787, a dual system of government, state and federal. This concept had profound implications for the expansion of slavery into the territories, secession, and the justification of the Union cause in the Civil War.

On the premises of the sovereignty of the territorial people of the United States, Brownson declared the Southern secessionists in the Civil War to be rebels against legitimate constitutional authority. There is not one square inch of territory in the state of California, New York, Texas, or any other state, North or South, that does not belong to the sovereign people of the United States, and there is not one square inch of territory in the United States—except those areas designated as territories subject to the United States—that does not equally belong to the American people as citizens of the state in which they reside.

Writing in The American Republic (1865), his masterwork on political theory, Brownson was crystalline on the subject of federalism. Through the Philadelphia Convention of 1787, he said, the sovereign territorial people of the United States designed a unique division of governmental authority rooted in the distinctions between the American people’s general and particular interests and relations. In other words, in American federalism, there is no supremacy of the states over the general government. Nor is the general government supreme over the states. “In their respective spheres neither yields to the other,” Brownson writes in The American Republic. “In relation to the matters within its jurisdiction, each government is independent and supreme regard to the other, and subject only to the convention”—the convention being the federal Constitution.


There were dangers to American constitutionalism in consolidation or, at the other extreme, disintegration. Still another danger was confusion about the content of religious freedom. Such freedom is no mere concession to tolerance, he insists. Why? Because religious freedom is grounded in man’s true end, which is supernatural—a higher end than government in the natural order. Legitimate republican government recognizes and supports the citizen who is naturally more than a citizen—he is a creature who desires to act in ways that manifest his understanding of God.

The good news is that the religion provisions of the Constitution’s First Amendment afford the best legal security for religious freedom in the world because they recognize, as Brownson said, that “The civil authority is incompetent to discriminate between truth and error.”

Brownson’s defense of religious liberty is much deeper than protection of the individual conscience. He defended the freedom of the church to propose its truth, teach and govern its members, and to speak freely to the social and political order that it inhabits. Liberty of conscience, Brownson said, can only be recognized and upheld when the liberty of the church is included within the broader protections of religious liberty.

The perennial foe is activist government, whether in the grip of a particular religious sect or, as today, dominated by an intolerant ideology that pushes religious institutions from the public square and violates their autonomy when they act from an ethics that transcends human concerns.

Another conceptual distinction that Brownson considered essential to constitutionalism was that between res privata, private affairs, and res publica, public affairs. In a republic, officials dedicate themselves exclusively to public matters and refrain from intrusion into private or personal matters. We limit government so that our free choices in family, religious, and economic decisions are uniquely our own.

Unfortunately, the republican regime can abuse its powers in an anti-republican manner or at the expense of the public purse. Brownson in his day scolded Congress for serving as a tool of powerful railroad interests: “Louis XI was not weaker against Charles the Bold than is Congress against the Pennsylvania Central Railroad and its connections, or the Union Pacific, built at the expense of the government itself. The great feudal lords had souls, railroad corporations have none.”

Brownson’s defense of civil society was built on the notion that the human being advances through his relationships with God, with other human beings, and with nature in the form of property, all of which bind the human person and shape his existence. American constitutionalism serves the common good by facilitating what Brownson called communion of man with man (society), man with property (economics), and man with God (religious life). This means that what really inspires our loyalty to the constitutional order is its defense of the dignity of our relational personhood, not mere self-interest.

Brownson considers the signature elements of modern political thought—autonomous individualism, self-interest as an organizing principle of politics, dislocated reason, and secularism—to be detours from the truth about the human person. In “Liberalism and Socialism” (1858), he takes on the two chief modern ideologies, socialism and liberalism. Both, he says, reduce man’s social and political existence to abstract doctrines of self-sovereignty or egalitarianism without fully reckoning with the complex requirements that undergird free and democratic societies.

Insofar as socialism has any truth, he argues, it has to do with the fact of human solidarity: we are, after all, equal by the divinely created law of nature. But socialism of necessity calls for the state to invent new forms of morality and enforce them against the freedom of the people. Reforms for the working class should be consistent with solidarity, Brownson believed, but without overriding each person’s need for family, property, political society, and religion for his integral development. He saw the madness in undoing these associations in pursuit of an egalitarian society.

The problem with continental European liberalism, on the other hand, was its constricted view of the individual and the state as the only two entities needed in a free and decent regime. The autonomous individual armed with a bevy of rights before the state, Brownson warned, was likely to be swallowed by a collectivism made possible by the elimination of various types of communities that traditionally stood between the individual and the state. The consequence would be individuals de-linked from each other, seeking refuge within the tutelary modern state.

As political scientist Peter Lawler has noted, this analysis aligns Brownson with Alexis de Tocqueville’s reflections on the arts of associations that stave off an omnicompetent state by attaching people to one another in shared pursuits. Brownson saw a tragic side to modern democracy: its tendency to reduce the person to an individualism that could not encompass the relational institutions of freedom. Absent the proper contexts for its exercise, freedom loses to equality’s siren calls to re-link man through the ministrations of the modern state.


thisarticleappearsLiberty is at the heart of what Orestes Brownson called  “the American Idea.” Brownson appreciated John Locke’s natural-rights conclusions, but he broke with Locke on the key issue of the origin and ground of government and political authority. In rejecting the Lockean social contract, Brownson held instead, with the classical philosophers and medieval schoolmen, that society and government were equally natural. Society and government were, that is, equally governed by natural law—though the concrete social and political order of any given people was shaped by history and providence.

By insisting on the authority of the sovereign people, as expressed through the federal Constitution; by reaffirming the moral authority of the institutions of civil society, especially religious institutions; and by rejuvenating the countervailing authority of state and local government to confront abusive federal power, Americans can forge a united front to protect, preserve, and extend personal and political liberty. Brownson saw that task as nothing less than the historical mission of America. As he wrote in The American Republic:

Its idea is liberty, indeed, but liberty with law, and law with liberty. Yet its mission is not so much the realization of liberty as the realization of the true idea of the state, which secures at once the authority of the public and the freedom of the individual … The Greek and Roman republics asserted the state to the detriment of the individual freedom; modern republics either do the same, or assert individual freedom to the detriment of the state. The American republic has been instituted by Providence to realize the freedom of each with advantage to the other.

This was true in Brownson’s day, and it’s equally true in our own.

Robert Emmet Moffit is a senior fellow in the Heritage Foundation’s Center for Health Policy Studies. Richard M. Reinsch II is a fellow at Liberty Fund and the editor of the Library of Law and Liberty.