The Modern Constitution–Blueprint for Revolution

Thomas Fleming


March 15, 2017

I hates the Constitution,
This Great Republic too

“That’s unconstitutional!”  Hardly a day goes by that we do not hear some proposal of the Trump administration denounced as a violation of the Constitution.  It is beginning to appear that NPR and other organs of the revolutionary left cannot invoke Trump’s name without throwing in “unconstitutional,” something in the way that "swift-footed" always precedes Achilles.

A good example of this rhetorical tactic is the headline Unamericans for Disunity (or is it Americans United ?) put on their latest propaganda screed: “AU Continues The Legal Fight Against President Trump’s Unconstitutional Muslim Ban.”  Counting on their followers' ability to ignore obvious facts—that there is no “Muslim ban” and the fight has nothing to do with law—AU backs up its charge  with this subliterate sentence:  “By instituting a punishing [sic] ban on Muslim immigrants, the government runs roughshod over core First Amendment protections.”  Someone might send them a dictionary with the word "punitive" ciircled.

Conservatives would make the obvious retort that the First Amendment forbids Congress (and presumably the executive branch) from setting up an established church or interfering in the freedom of religion, actions that were however permitted to the states.  The conservatives would go on to condemn “liberals” for rejecting an originalist interpretation of the Constitution in favor of their fantasy that the Constitution is a living document, evolving to meet the changing needs of American society.  Hamilton, Madison, and the other “Founding Fathers” never imagined the day would come when a religion entirely alien to Anglo-American traditions would claim constitutional protection.

The conservatives are, as usual, not only wrong but irrelevant.  First off, as Clyde Wilson has been arguing for decades, it does not matter what the “Framers” or “Founders” thought.  The original intentions that count are not those of the committee that drafted the document but the intentions of the legislatures and citizens whose approval made it law.  Even to use terms like “Founders”is to suggest that the United States is a revolutionary regime like Jacobin France or Communist Russia.

The truth is that no legal tradition can remain fixed without being a mere fossil.  Constitutional traditions have to evolve like English Common Law.  Otherwise they become dead and coercive.  If the goal of leftist judges and law professors were really to maintain the relevance of constitutional law by adapting it to the realities of American life, it would be wrong to blame them in principle.  Of course we might wish to criticize or condemn specific opinions on transgender bathrooms or the rights of illegal aliens, but that would be an argument among people of good will, earnestly seeking the means of preserving the American traditions of self-government.

Nothing could be further from reality.  Leftist judges, legislators, and professors are the vanguard of a revolution that has been going on for well over 100 years.  They have no interest in maintaining the American republic, and they only value the Constitution, which they rewrite every decade, as a means of advancing and institutionalizing their revolution.  They have no lesser loyalty than the perfection of mankind and no nobler motivation than the acquisition of wealth and power for themselves.

On the obvious level, the passage of major amendments has marked the course of revolution:  the 14th amendment, which redefined citizenship and robbed the states of their powers of self-government, the 16th, which imposed the income tax, the 17th, which took away the states’ right to determine the manner of electing senators, the 18th, that deprived the states and the people of their sacred right to drink all manner of alcoholic spirits, the 26th, which deprived the states of the power to prevent dumb teenagers from voting on questions which they do not understand and in which they have little if any material interest.

All of these amendments contradict the fundamentals of our Constitutional order, but they represent only the surface level of the Revolution.  The Deep Revolution, which began as a rejection of social and political hierarchy and the moral authority of Christian churches, quickly moved onto a denial of marriage and family, the abolition of local jurisdictions and, ultimately, to a denial of every quality that makes us human.  The Constitution is now invoked to guarantee the “rights” of men to marry men and of pre-adolescent children to renounce their gender and adopt another.

This is not an evolutionary but a revolutionary theory of the Constitution.  Leftist judges, legislators, and professors have no interest whatsoever in a “living” Constitution that makes slow and gradual adjustment to changing conditions.  They start out with one simple principle that is entirely divorced from the historical reality of the American people, and that principle is the inevitability of Progress.  This is not the old-fashioned progress that rejoices in the technical and social advances that led to incremental improvements in plumbing, transportation, and old age pensions but the very opposite.  Rather than beginning with 1787 and gradually working forward, incremental change by incremental change, they begin with a Utopian vision of the world as it should be, and then set out,  by legislation, executive actions, and court rulings, to impose their Utopian vision, by seduction and propaganda if possible, by force if necessary, as the Southern states learned in the 1860's and 1870's.

100 years ago, the revolutionary vision was more or less identical with the sketch that Marx and Engels drew up in The Communist Manifesto:  a world in which distinctions of wealth, education, and class were being extinguished both among individuals and between nations, but now the more important target is the distinctions between parent and child, men and women, male, female, and everything in between and beyond that are being eliminated.  And, after eliminating racism, nationalism, sexism, classism, and genderism, we are on the verge of a crusade against “speciesism.”

Marxists used to say that truth was whatever advanced the cause of the revolutionary proletariate.  In this movement—which goes as far beyond communism as the Clintons and Obamas go beyond Lenin—the Constitution is defined as whatever principles will advance our progress to the Utopia in which all distinctions of race, class, religion, and nation,  sex, gender, age, and species will have vanished.  Any move to resist even the most recent reinventions of  human nature--reinventions that even the sponsors have rejected up to a a few years ago--is decried as inhumane and unconstitutional.

The Constitution in force in 1800 was a noble and pragmatic arrangement that divided the powers of government and allowed for a considerable degree of freedom for persons, families, communities, and states.  The Constitution circa 1900 preserved much of that old order, while centralizing power in the national government.  The judge-made Constitution of 2000 is the enemy of everything that is most decent, not only in the American tradition, but in the human race itself.  When conservatives say they are defending the Constitution, they are only playing into the hands of the revolutionaries they pretend to oppose.

This argument leaves out a great deal.  For more nuance and broader context, please listen to the forthcoming podcast.


Thomas Fleming

Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina

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12 Responses

  1. James D. says:

    Excellent. Thank you, Dr. Fleming. When I was in grade school (a poor Catholic school,) our books were so old that they actually taught the Patrick Henry, anti-federalist side of the Constitutional debate, along with the federalist side. By the time I got to high school and college, it seems that this had been scrubbed from the history books. In brief mentions, American history started with The Federalist Papers, but really didn’t start until Lincoln’s recognition of the deferred promise and his glorious war.

    The transgender “debate” will soon be as settled as the “gay marriage debate.” A new dragon to slay is apparently people who “identify” as being disabled even though they are not. They are called, I kid you not, “transabled.” I have read several cases of this, including one in which a seeing woman “identified” as being blind. According to her psychiatrist, she was so depressed over not being blind that she was on the verge of suicide. So, the psychiatrist did what any responsible doctor would do; he poured bleach in her eyes and blinded her.

  2. Raymond Olson says:

    Mr. D–I pray you are guilty of spreading fake news–not deliberately, to be sure. If it isn’t fake news, I hope the doctor lost his license and professional accreditation, at least.

  3. Irv Phillips says:

    This is spot on. Furthermore, anyone who considers himself, sorry theirself, conservative should read this. If he disagrees then he misunderstands the problem fundamentally. There are many who belong to this camp.

  4. Thomas Fleming Thomas Fleming says:

    Thanks, James, Ray, and Irv. Two little points: Yes, until a few decades ago, there was still some kind of discussion of different points of view of the Constitution. Today, it ranges from squishy versions of Hamilton–let us continue to nationalize but cautiously and let us proceed more slowly down the path of social revolution–to ultra-leftist–We have a long way to go to realize the original dream. How many Federalist Society types today oppose openly the 14th Amendment, as Raoul Berger, Forrest McDonald, and Steve Presser have done?

    People who think of themselves as conservative today are conserving a slightly older phase of the Revolution, say, from FDR to FDR’s disciples Ronald Reagan and Newt Gingrich. I am not saying that on a pragmatic basis that LBJ’s Constitution is not more endurable than Ms Clinton’s, but that relativist conservatism does not give its followers a stable place to stand, which is all Archimedes said he needed–along with a lever–to move the earth. Conservatives do not have a lever–that is, political force of will and a strategy–but even less to they have a place to stand.

  5. George Gaudio says:

    penetrating insight, thank you

  6. Dot says:

    Thank you for this instructive post. I look forward to your podcast on this subject.

  7. Dot says:

    Dr. Fleming,
    Did the elder Joseph Kennedy help repeal the 18th amendment to the Constitution thus ending prohibition?

  8. Thomas Fleming Thomas Fleming says:

    I do not know what part he might have played, but even his dirty wealth and chicanery would have counted for little. There are so many unverified allegations against him, it is hard to sort them out. In one version, he made big money out of Prohibition and thus had no incentive to repeal it. In any event, liquor smuggling would have been among the least of his crimes and by repeal hardly a great source of his wealth.

  9. Robert Peters says:

    If the Constitution is – putting Hamilton and Madison’s machinations aside for a moment – that instrument used by the states in their sovereign capacity, i.e. in conventions assembled, to create a new agent, the general, government to operate on their behalf in matters known to be in the common good in the place of the old decentralized agent under the Articles of Confederation, then that instrument and the agent created through and by it have authority only if the states retain their sovereign authority. (I herewith cede that even “sovereignty” is itself suspect; but that is for another argument.) The colonial republics seceded from the crown. The then in considering and adopting the newly proposed Constitution secede from the Old Union under the Articles and accede to a New Union of constitutionally federated republics with the new Constitution.

    Abraham Lincoln and the Republican Party successfully destroyed two unions of constitutionally federated republics: that of the United States of America and that of the Confederate States of America. In their place, he brought into being an American variant of the Hobbesian state: an artificial corporation with a monopoly on coercion, with the ability to define the limits of its own power and with animation provided by a powerful will, be it that of a dictator, an oligarchy or even a democratic majority or minority.

    The Confederate Constitution is where the dead artifact of a dead polity belongs: in archives.

    The United States Constitution is not where the dead artifact of a dead polity belongs: in archives; it is rather a zombie, rotting from the inside out, but clothed in spiced garments and animated by elites animating her beneath the skirts while we fools genuflect to her and think ourselves safe reveling in the oaths which our public servants take before us.

    Another metaphor would be that the Constitution before 1865 was the handmaiden of the federated republics; after 1865, she has been and remains the whore of the Hobbesian state.

    Or, the Constitution plays a role similar to that of the Queen of England: she it trotted out to begin Parliament but is relegated to drinking tea and eating crumpets which looking regal.

    Dr. Fleming, thanks for the insight.

  10. Alexander Coleman says:

    Dr. Fleming’s piece is quite the outstanding examination of the great problem which troubles President Trump’s efforts to limit the otherwise ceaseless tidal wave of immigration from Muslim-majority nations, most of which on the list having either no or practically no central government. Which of course makes any vetting of “refugees” effectively impossible.

    As Mr. Peters notes, Woodrow Wilson was not utterly wrong in pointing out that “…The War between the States established… this principle, that the federal government is, through its courts, the final judge of its own powers.”

    Looking forward to the podcast.

  11. Bagby says:

    Thank you for Wilson’s quote on the Constitution, Mr. Coleman. That is very insightful. I will use it in my history class.

  12. Thomas Fleming Thomas Fleming says:

    I used to warn my conservative movement friends about the dangers of what I referred to as “short-term nostalgia,” as in Jeff Hart’s reverence for the 1950’s. While long-term nostalgia for antiquity or Stuart England can inspire creative responses to the world in which we live, nostalgia for the world of our childhood is not only stultifying but poisonous. Comparing, say, Walker Percy or Fred Chapell with Dante or Sophocles forces us to judge them by the highest standards and see where they fail and where they succeed, acceptance of James Gould Cozzens or Hemingway as masters short-circuits our ability to think clearly. Similarly, Old South nostalgia was impractical in the 1880’s, while today it is creative and stimulating. A perverse acceptance of the Constitution is on par with a blind acceptance of a king’s misdeeds on the grounds that he is legitimate.