Constitutional History and Law

The Old Republic
by Ryan Setliff

The U.S. Constitution should be viewed as an essentially nomocratic or rule-based document that emphasizes negative liberty as opposed to legal positivism. It was essentially a series of "Thou shall nots..." placed upon the federal government whose constitutional authority extended only to those delegated enumerated objects of power prescribed in the U.S. Constitution. Hence, the inclusion of the opening phraseology of the Bill of Rights, "Congress shall make no law..." Constitutional historian Forrest McDonald gives clarity to the distinction between nomocratic and telocratic constitutions in the forward to Bradford's book Original Intentions: On the Making of the U.S. Constitution:

The nomocratic view is that the Constitution was designed to bring government under the rule of law, as opposed to achieving any specific purposes... [T]he Constitution is primarily a structural and procedural document, specifying who is to exercise what powers and how. It is a body of law, designed to govern, not the people, but government itself; and it is written in language intelligible to all, that all might know whether it is being obeyed. The alternative, teleocratic view, is one that has come into fashion the last few decades and has all but destroyed the original Constitution. This is the notion that the design of the Constitution was to achieve a certain kind of society, one based upon abstract principles of natural rights or justice or or equality or democracy or all of the above. It holds that specific provisions of the documents are of secondary importance or none at all; what counts are the "principles" it supposedly embodies, usually principles based upon the Declaration of Independence or Lincoln's Gettysburg Address, neither of which has any standing in law. ¹

Straussians and neoconservatives revere a teleocratic constitution, and they have conveniently swept the negative nomocratic constitution that limits federal power to the wayside. Too many nominal conservatives have found themselves defending an essentially teleocratic constitution out of ignorance of the U.S. Constitution's historic developments, and misplaced emphasis on abstract Lockean principles. Locke's social contract is not the interpretative lens with which we understand the American constitutional order.