The Modern Constitution–Blueprint for Revolution
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.