Rights and Duties: Reflections on Our Conservative Constitution [Hardcover]

Russell Kirk (Author, Preface), Mitchell Shannon Muncy (Editor)

Book Description

Publication Date: August 15, 1997

Transcending the commonplace that conservative constitutional interpretation is chained to the bare text of the document itself, the eminent political philosopher Russell Kirk lays the foundation for a conservative understanding of the "living Constitution" in a classic popular study of the social, cultural, and political inheritance of the American Founding. Respect for the country's "unwritten constitution"-the collective customs, mores, and conventions of the nation-will, Kirk argues, simultaneously restrain judges' temptations to social engineering from the bench and endow the Constitution with the flexibility necessary to survive the passage of decades and centuries. This reasoned and urbane contribution to our understanding of the Constitution confounds facile liberal-conservative dichotomies. First published in 1990 as The Conservative Constitution, this important book has been thoroughly revised and greatly expanded, with a new introduction by Russell Hittinger. One of Kirk's most original works, Rights and Duties draws a conservative portrait of "a revolution not made but prevented," of a Constitution owing more to British whiggery and the Common Law than to Locke and the Enlightenment.

Editorial Reviews

Review

"Rights and Duties remains the single best volume written on our constitutional heritage and its contemporary ills." -- University Bookman

The Constitution's purpose was thoroughly conservative, Russell Kirk emphatically states. Rights and Duties is a collection of lectures and essays that examine conservative constitutional interpretations and concepts. Kirk views the Constitution through the eyes of Edmund Burke. Kirk firmly believes that the Constitution of the United States is both a written and wholly or partially unwritten document. He believes that the American Constitution has endured because it has not been deliberately altered. A majority of the first three parts of Rights and Duties concentrates on tracing the roots of the unwritten constitution. The information is in great detail and well documented, but other than history buffs, it can be difficult to maintain interest. For those who can sustain their attention, it is worth the wait. Rights and Duties is at its best when it creates controversy surrounding moral issues, the natural law and religion. Kirk begins to interject some of his own experiences with his theories to make his conservative arguments. He offers a conservative opinion on the separation of church and state and proceeds to give two cases that provide different interpretations of the establishment and free exercise provisions of the First Amendment. He argues that freedom to speak and publish were never absolute in America. Perhaps the most debatable inference in the book is that the Fourteenth and Fifteenth Amendments created deeply altered the Constitution. Kirk does not adequately explain why he is vehemently opposed to the Fourteenth Amendment. Is it because it has not been used to further conservative agendas? Does he believe that the United States should have continued to use unwritten law rather than courts and an Amendment? How does his natural law theory deal with race? Rights and Duties is a valuable book that for the most part will keep the readers glued to it. More Americans than conservatives would like to believe probably accept the premise that the constitution is conservative. Nevertheless, Kirk provides excellent political philosophy and arguments on a subject that is important to him. -- From Independent Publisher

About the Author

Russell Kirk (1918-1994), the eminent literary and social critic, historian of ideas, and political philosopher, helped launch the modern conservative movement in 1953 with his landmark book The Conservative Mind. Dr. Kirk published more than thirty books, hundreds of articles, and award-winning fiction.

Product Details

• Hardcover: 320 pages
• Publisher: Spence Publishing Company; First edition (August 15, 1997)
• Language: English
• ISBN-10: 0965320820
• ISBN-13: 978-0965320825
• Product Dimensions: 9.3 x 6.2 x 1.2 inches
• Shipping Weight: 1.6 pounds
• Average Customer Review: 4.7 out of 5 stars  See all reviews (3 customer reviews)
• Amazon Best Sellers Rank: #168,344 in Books (See Top 100 in Books)

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12 of 12 people found the following review helpful:

5.0 out of 5 stars Russell Kirk on the Conservative Constitutional Order, October 15, 2005

By 

R. Setliff - See all my reviews
(REAL NAME)   

This review is from: Rights and Duties: Reflections on Our Conservative Constitution (Hardcover)

~Rights and Duties: Reflections on Our Conservative Constitution~ is a thought-provoking exposition of the American constitutional order including its history, its developments, and its future. The conservative luminary Russell Kirk was a deeply reflective conservative thinker possessed of a profound sobriety and Burkean predilections. Kirk eschews ideology and reminds us that conservatism is the negation of ideology. He doesn't let patriotic nostalgia or caricatured revolutionary ideology sully his historical interpretation. He recognizes that the American War for Independence-often called the American Revolution-was not a revolution at all, but a revolution prevented. Echoing the wisdom of Edmund Burke, Kirk brilliantly illuminates the conservative sobriety of the so called Glorious Revolution of 1688 in Great Britain and the so called American Revolution of 1776. When the two are juxtaposed against the French Revolution of 1787, the events of 1688 and 1776 appear not as revolutions at all, but as revolutions prevented. Kirk is not alone in this elucidation, as American historian Daniel Boorstin declares, "The most obvious peculiarity of our American Revolution is that, in the modern European sense of the word, it was hardly a revolution at all." For Kirk to characterize the constitution's purpose as conservative recognizes that the fundamental law preserves the pattern of political order through the lapse of time and change. The unwritten constitution embodies the conservative essence, and it should go without saying that the letter of the law in the written constitution can be changed demonstrably by "construction."

One of perennial elements of Russell Kirk's idea of a conservative constitutional order is rooted in the broad history of Anglo-American as well as Western Civilization. In affirming that "constitutions are something more than lines written upon parchment," Russell Kirk conveys the importance of unwritten constitution. Kirk observes, "True constitutions are not invented: they grow." He traces our rich constitutional heritage of course to the several centuries of British experience, but Kirk doesn't stop there. In the Roots of American Order, Kirk traced the roots of an unwritten constitution back to ideas, customs, traditions, and institutions drawn from ancient Jerusalem, Athens, and Rome, medieval England, and the Protestant Reformation. Recognizing that our unwritten constitution draws from an expansive constitution than his conclusion is simple: the Constitution taken as "a whole" in our political order is both written and unwritten. Kirk echoing Burkean wisdom recognizes that a good constitution grows out of the common experience of a people steadily over the years. "It is not possible to create an improvised constitution out of whole clothe." The unwritten constitution encompasses precedent, prescription, and custom. It should go without saying that the U.S. Constitution of 1787 exists in continuity with the Magna Charta of 1215. However, Kirk does not denigrate the primacy of the written, nomocratic (i.e. rule-based) constitution by any means. If adherence be proper, the written constitution with its clear demarcations and limitations placed upon the boundaries of political power than serves a most useful purpose. Kirk recognizes that originalism, if mistreated, can become a bit of legalism: he would probably acquiesce with the sentiments of John Randolph of Roanoke who decried "making the extreme medicine of the Constitution our daily food." Russell Kirk's treatment of the controversy over original intent is particularly intriguing. Therein, he confronts the developments and practices of the federal judiciary, which was purported by Hamilton to be the "least dangerous branch." Kirk writes, "No matter how plainly and lucidly written, any statute-let alone any constitution-requires interpretation by judges. It is presumed that judges must govern themselves in their interpretation by the intentions of the Framers of the constitution or statute..." Kirk's exposition expounds upon the virtues of the independent judiciary, however, Kirk goes one step further by echoing some prescriptive wisdom from the Anti-Federalist in denouncing the federal courts of today which frequently encroach upon the jurisdiction of the states. Kirk in highlighting the Chisholm v. Georgia controversy notes, "constitutional amendment is one method for overturning a Supreme Court decision believed to contravene the original intent of a constitutional provision." The framers "desired to establish an independent judiciary, they did not mean to create a new form of government, unknown to Plato or Aristotle, that might be termed an archonocracy-a national domination of judges."

Kirk esteems the conservative sobriety of the American experiment in republican liberty. In sharp contrast to radicalism of the French Revolution, the American experiment in its early years was very successful at providing ordered liberty. Across the Atlantic, France was wrought with bloodletting, violent social upheavals and corruption. "Obviously the Declaration of Rights of Man is a document of the Enlightenment," surmises Kirk, "that is contemptuous of the Christian and medieval past, though often adulatory of things Roman or Hellenic, fascinated by scientific discoveries, proud of modernity." The French Revolution came as the mettle of Romantic revolutionary ideals was tethered with the godless rationalism of the Enlightenment to produce a barbaric absolutism. Its adherents were obsessed with a quixotic fixation upon the "perfection of human nature and society" that sought to bring Rousseau's political screeds into action. Demagogues thronged to be expositors of Rousseau's "General Will," which was heralded as the will of the people, though the people were not bright enough to articulate it, so their masters expressed it instead.

Russell Kirk is a very reflective conservative and while he acknowledges natural law, he recognizes the limitations of natural law. Kirk tacitly admits that while conservatives can acknowledge that liberty is the gift from God, we should realize that a vague natural law has a capacity to be dangerous if abused. Kirk observes, "what the natural law provides is the authority for positive law, not an alternative to positive law." As Robert Bork put it, there is no reason to think that "good natural law will drive out the bad." Since positive law is a product of community experience than "the natural law could not conceivably supplant judicial institutions." What is more, natural law will always need an expositor which invites the same intrigue that befalls legal positivism as it is subject to innumerable conflicting interpretations. "It will not do to substitute private interpretations of natural law for the rule of common law or civil law, any more than it would have been well for England, in Elizabeth's time, to have obeyed the Geneva Men by sweeping away common law and the whole inherited apparatus of parliamentary statutes, to substitute the laws of the ancient Jews." Not surprisingly, Russell Kirk is not particularly sanctimonious about the Declaration of Independence: "...for the Declaration really is not conspicuously American in its ideas or phrases, and not even characteristically Jeffersonian... the Declaration was meant to persuade the Court of France and the philosophes of Paris that the Americans were sufficiently un-'English to deserve military assistance. Jefferson's Declaration is a successful instrument of diplomacy; it is not a work of political philosophy or an instrument of government, and Jefferson himself said little about it after 1776." He further surmises that the Declaration was: "calculated to please Paris and Versailles, had broken with the constitutional argument of the Americans that had been advanced ever since the passage of the Stamp Act ... and had carried the American cause into the misty debatable land of an abstract liberty, equality, fraternity." Given that the Declaration has been misused by ideologues, Kirk's criticisms are warranted and he is hardly amiss about the historical circumstances. Strangely, enough the Declaration of Independence has been reinvigorated by egalitarian ideologues like Harry Jaffa-and interpreted through the lens of Abraham Lincoln's spurious interpretations-as if it has basis in constitutional law. In a popular book amongst evangelical conservatives entitled Defending the Declaration, author Gary Amos declared, "...the American Revolution is also a world revolution, guided by a view of the world and man which exchanges the iron heel of statism for the rod and staff of justice." Proclaiming the universal nature of American principles, well-meaning but naïve ideologues can only toss a monkey-wrench in our political order, and giving credence to a universal American ideology is in due course corrosive of the nomocratic U.S. Constitution. Kirk recognizes the danger inherent in the idolatry, elevation, and obfuscation of the Declaration by ideologues to advance a teleocratic Constitution.

Russell Kirk takes issue with the Lockean interpretation of the Constitution, and even challenges the prevailing notion that John Locke held profound sway over the founding fathers. Interpreting the Constitution of 1787 through the lens of Lockean social contract theory and egalitarian ideological nostrums are preposterous and represents the worst of reductionism by ideologues, but it has become fashionable with the rise of the Straussians and neoconservatives. Kirk's preference is clearly for Edmund Burke over John Locke, and the former was much more read among the founders contrary to popular belief. What is more, surmising that the intellectual foundation of the American founding is hedged primarily upon European influences demeans the originality of American political thought. Granted, Americans were heirs of the British... Read more ›

9 of 9 people found the following review helpful:

5.0 out of 5 stars Final thoughts from one of America's clearest thinkers., April 2, 1998

By 

Edward Peters - See all my reviews

This review is from: Rights and Duties: Reflections on Our Conservative Constitution (Hardcover)

Russell Kirk (d. 1994) was a quiet genius who, for some 40 years, provided the intellectual foundations of genuine conservatism in America, drawing heavily upon European, specifically English, thought along the way. This book gathers his final essays and addresses. It represents, as it were, his last analysis of the system and, to some degree, his prognosis for its future. The introduction is by Dr. Russell Hittinger, perhaps Kirk's most perceptive interpreter. Requires attentive reading, but those shy of extensive academic credentials need not hesitate to approach this work. Excellent for college or graduate level political philosophy courses.END

7 of 8 people found the following review helpful:

4.0 out of 5 stars Kirk on the Constitution, September 1, 2003

By 

Steve Jackson "stevejackson100atyahoocom" (New England) - See all my reviews

This review is from: Rights and Duties: Reflections on Our Conservative Constitution (Hardcover)

Russell Kirk (1918-1994) was perhaps the preeminent conservative scholar in twentieth century America, who gained national attention with THE CONSERVATIVE MIND, published 50 years ago. Kirk had a life-long interest in the law, and was in fact a justice of the peace in Michigan for two terms.

This collection (and expanded version of the CONSERVATIVE CONSTITUTION) contains a number of Kirk's articles on the Constitution and its background, which were published in various journals and law reviews.

These essays revolve around a central claim of Kirk's: the U.S. Constitution, far from being an Enlightenment document, is in fact a conservative document based on Roman, Christian, and common law sources. As Kirk shows, contrary to the widely asserted claims, the framers were hardly deists whose main influence was John Locke. Most professed at least some form of Christianity. They were steeped in the common law tradition of England.

I particularly enjoyed the two articles on Church/State issue. One concerns the well-known Alabama case of Wallace v. Jaffree, in which it was alleged that Alabama schools were teaching secular humanism, and the other the lesser-known Shelton College case. Dr. Kirk testified as an expert in both cases. As Kirk says, the best solution to these issues would be to put these questions back into the hands of the states and reject the incorporation doctrine.

The final chapter, "Ideology and Property," is a strong defense of private property and free enterprise.

This book contains an excellent introduction by Russell Hittenger, an important legal scholar in his own right, who was an associate of Dr. Kirk's.