Remarks from NRI’s regional seminars
The following remarks, as prepared for delivery and lightly adapted, were given by the author in Newport Beach and San Jose, Calif., on April 30 and May 1, as part of National Review Institute’s Foundations of Freedom Seminars series on the Importance of America’s Constitutional Pillars.
We Americans love our Constitution, but as the Annenberg annual survey makes clear, we know little about what is in it and less about the principles it attempts to sustain. Many Americans believe that the president may suspend the Constitution in time of war; that the Constitution establishes English as our official language; and — here’s my personal favorite — that Marx’s maxim “from each according to his ability, to each according to his need” is included in the Constitution’s text. And this is odd because we have not only the oldest written constitution; it is the shortest — fewer than 5,000 words. As Russell Kirk noted in Rights and Duties: Reflections on Our Conservative Constitution, James Bryce, England’s ambassador to America at the turn of the 20th century, praised the Constitution for imbuing ordinary people with a sense of pride and reverence “for the fundamental truths on which [the document was] based.”
We have a long history of celebrating July 4, but the Constitution, as a working blueprint of governance, never seemed to have quite the cachet of our bill of indictment against the English king and got its recognition late — in 2004, when Congress established Constitution Day. September 17 was the day in 1787 when 39 of the drafters signed the Constitution. It was not ratified until 1788 and became operational in 1789.
In 2005, Gilbert, Ariz., staged the first annual musical tribute to the ideals on which our nation was founded, and it included an anthem entitled “The Fortress Stone.” (This event is part of a Constitution Week celebration sponsored by the citizens of Gilbert. Why they have taken the responsibility so seriously I do not know, but I commend them.) The anthem poses a challenge to modern-day Americans. Here’s a little bit of the Prologue:
Since the dawn of time, tyrants have conspired to rob humanity of the right to life, liberty, and the pursuit of happiness. [But] . . . the Constitution . . . has stood for over two centuries as a protective fortress, sheltering generation after generation from those who would destroy freedom. . . . Consider our role in defending the very fortress that defends us all. Consider both its immense power, but also its fragile vulnerability. This wall of protection is only as strong as our devotion to know, to live, and to safeguard its truths.
Our Constitution deserves to be celebrated. Looking back on the Founders’ achievement, Madison said: “The happy Union of these States is a wonder; their [Constitution] a miracle; their example the hope of Liberty throughout the world.” That word “hope” occurs with surprising frequency in discussions of the Constitution. Jefferson told a correspondent who wrote to inform him of the Missouri Compromise that the line being drawn was an act of “treason against the hopes of the world.” After the start of the Civil War, President Lincoln warned Congress that it might nobly save or meanly lose “the last best hope of earth.” He was referring to the blueprint of self-government the Constitution provided.
What made the Constitution, as Frederick Douglass once described it, “a glorious liberty document”? First, our founding documents embodied a new ideal of political freedom based on human equality and human nature: the self-evident truth that “all men are created equal,” endowed with “certain inalienable Rights,” including “Life, Liberty and the pursuit of Happiness” compelled a particular kind of government. Our constitutional premises are easily defined. Timothy Sandefur writes in The Conscience of the Constitution (2014): “People are born with liberty; their rights are not privileges that government gives them as it pleases. . . . Freedom is the starting point of politics; government’s powers are secondary and derivative, and therefore limited.” The Constitution established new processes “to give the common man a voice, a veto, elbow room, a refuge from the raging presumptions of his ‘betters,’” writes Thomas Sowell in The Quest for Cosmic Justice (1999). Of course, as Bradley Watson notes, nowadays “our progressive elites’ fascination with identitarian politics doesn’t leave much cultural space for the ordinary non-birthing person (formerly known as the common man.)”
The drafters of our constitutional documents assumed that any good regime must respect the nature of the creature to be governed. Man was a creature of the logos, whose rational nature, created by the God of the logos, was guided by the moral law engraved on every heart.
Second, the Constitution specifically sought to create as much room as possible for civil society, diffusing and distributing power, dividing power vertically between the states and federal government; and separating the central government’s enumerated and limited powers between the three branches to avoid putting the legislative, executive, and judicial powers in the same hands — a circumstance that Madison, in Federalist No. 47, pronounced the “very definition of tyranny.” The Constitution also recognizes the primacy of those inherent rights referenced in the Declaration of Independence: the right to worship God as you choose, to speak freely, to petition government, to bear arms, to be free from unreasonable searches or seizures, to have a fair trial, to be protected from unreasonable searches or cruel and unusual punishment. The right to life being the source of all rights, the property necessary to sustain life was sacrosanct. “Hence, the law was born of property,” not the other way around as many politicians now claim.*
When the National Constitution Center first opened, it featured an interactive exhibit that showed a map of the world with pinpoints of light in every country where some aspect of the American Constitution had been adopted into that nation’s constitution or basic law. It was an impressive exhibit, but those lights have been going out. “There has been a precipitous decline in the use of the American Constitution as precedent,” writes Jonathan Faull. Candidly, our Constitution seems radically out of step with the American ruling class, which has waged a relentless war against American exceptionalism for the past hundred years.
Political scientist Aaron Wildavsky wrote in 1980 that the Madisonian world has gone “topsy-turvy” as factions, defined as groups “activated by some common interest . . . adverse to the rights of other citizens or to the permanent and aggregate interests of the community,” have been transformed into sectors of public policy. “Indeed,” said Wildavsky, “government now pays citizens to organize, lawyers to sue, and politicians to run for office. Soon enough, if current trends continue, government will become self-contained, generating (apparently spontaneously) the forces to which it responds.”
The Madisonian system has been “undone by political ambition, popular democracy, and judicial fecklessness,” writes Christopher DeMuth. The government “of the people, by the people, for the people” has largely been replaced by the bureaucratic rule of the new aristocracy.
In an insightful essay in 2010, Angelo Codevilla explained that this class and most ordinary Americans “have less in common culturally, dislike each other more, and embody ways of life more different from one another than did the 19th century’s Northerners and Southerners,” who at least prayed to the same God. While most Americans do still pray to the God who sustains us, Codevilla observed, “our ruling class prays to itself as ‘saviors of the planet’ and improvers of humanity.” The philosophical idea that the purpose of government is to facilitate the pursuit of happiness by the people has been scrapped in favor of the notion that government exists to “benefit the clients of government at the expense of ordinary citizens.” In Codevilla’s droll dialogue: “If you are not among the favored guests at the table where officials [decide] who is to receive what at whose expense, you are on the menu.” The Founding generation’s paradigm that “all men are created equal” has succumbed to the ruling class’s relentless desire for distinction. While the unenlightened may believe they are created in the image of God and that ordinary human minds can reach objective judgments about good and evil, better or worse through reason, the “enlightened ones know all such judgments are subjective and that ordinary people can no more be trusted with reason than they can with guns.”
The causes of our constitutional disarray are protean. Many things converged. We could blame Darwinism, scientism, naturalism, progressivism, the treason of the intellectuals, the rage, resentment, and fatuity of the cultural Marxists, or the spiritual eugenics of the woke. But, whatever the cause (or causes), the courts have been complicit. The judiciary’s role in the dissolution of the constitutional republic is easy to trace. First, it unleashed Leviathan by expanding the definition of federal powers, like the regulation of interstate commerce or the power to tax and spend for the general welfare. SCOTUS invented rational-basis review so economic regulation was entitled to a strong presumption of constitutional validity. And, if that was not enough, the Court stuck in a footnote about discrete and insular minorities that may have paved the way for the eventual reign of identitarian politics.
Then the courts nullified the principle of separation of powers. In the 1970s, when Congress began “commissioning fleets of regulatory agencies” with “unprecedented discretion and economy-wide power,” as DeMuth writes, the courts were quick to do their part, approving the delegation of congressional power to administrative agencies, permitting the combination of legislative, judicial, and enforcement powers — the very definition of tyranny — within each agency, and creating tiers of deference to solidify that hegemony.
Thus, without any banners flying or trumpets blaring, without the stealthy tread of jack-booted feet or any hint of a stirring theme song, the imperial judiciary arrived. Concern about the power of the Supreme Court was one of the most telling critiques by the Anti-Federalists. One of them, who used the pseudonym “Brutus,” warned that the independent and unaccountable judiciary created by the Constitution would lead inevitably to judicial supremacy. Brutus worried the judiciary would have the power to resolve all questions of constitutional interpretation — not just the meaning of the words but “according to the reasoning spirit of it.” The core of Brutus’s critique was his dismay that the Constitution’s commitment to judicial independence meant judges would be limited and constrained only by their sense of honor and judicial duty. Noting that there would be no power above them, no authority that could remove them for ordinary malfeasance as they were placed outside legislative control, he predicted: “Men placed in this situation will generally soon feel themselves independent of heaven itself.”
By the 1960s, under the Warren Court, many people began to suspect that Brutus was right. Judges began to develop and academics began to defend “living constitutionalism,” which could best be described as the Constitution as a chain novel. As William Brennan, a well-known proponent of the idea of the living constitution, explained, the vision of our time is destined to be different from the vision of other times, and the central part of the judicial role is to act as visionary. In Living Constitution, Dying Faith (2009), Watson writes: “Asserting that individual dignity is the most important of all political values, Brennan saw the judge’s job as articulating its meaning as that meaning reveals itself in time.”
Even when originalism — a newly revived theory of constitutional interpretation — sought to respond to the interpretive excess of the living constitutionalists, the diktats of the imperial judiciary just kept coming.
As Michael Uhlmann acknowledged in a Claremont Review essay almost two decades ago, originalists have successfully exposed the fragility of “postmodernist constitutional constructs,” but they have been far less successful at reaffirming the extra-textual “enduring, self-evident truths that must undergird the case for limited government.” Two decades into the originalist project, Uhlmann described a court that had “rewritten inconvenient constitutional history to suit fashionable ideological preferences, conjured novel constitutional rights and theories out of thin air, uprooted many well-settled norms of American political culture, and all but decreed that the Constitution incorporates postmodern conceptions of moral autonomy.” Indeed, by reading their own predilections about autonomous individualism into both the free speech and religions clauses, Uhlmann said the Court has incentivized pornography while treating religion as a “toxic presence in the public square.”
Alain Finkielkraut, in The Defeat of the Mind (1999), contends that the educational project of the last 100 years has been the undoing of thought. Thus, “barbarism replaces culture” and makes room for “the terrible and pathetic confrontation between the fanatic and the zombie.” We are not the fanatics. They are capering about in the streets, celebrating chaos in black masks or vagina hats, or sporting keffiyehs in solidarity with Hamas, mindlessly chanting genocidal slogans.
The question before us maintains its metaphysical and theological core. Liberty or equality? Slavery or freedom? Citizen or subject? We need not succumb to the lure of moral nihilism. We may yet choose to be self-governing members of a community committed to human flourishing.
Liberty is hard. Free government is not inevitable; it is only a possibility — a possibility that can be fully realized when the polity is generally governed by, as John Courtney Murray put it in We Hold These Truths (1988), “the recognized imperatives of the universal moral law.” It requires self-control, self-restraint, people capable of understanding that, in Lord Acton’s words, liberty is “not the power of doing what we like, but the right of being able to do what we ought.”
For the Constitution to endure, citizens must possess discipline and toughness. They must be zealous in guarding their own rights while submitting to the restrictions placed on them by the rights of others. After all, the Constitution’s teachings are tough: The document imposes limitations on liberty. In theory, each individual’s freedom becomes bounded by restraint — the restraint imposed by the liberties equally guaranteed to others. Lincoln warned us that self-righteousness is an acute problem for self-government. Yes. But, as Jean-François Revel observed in Democracy against Itself (1993), so is slumbrous “servility” in the face of threats aimed at the “debasement or annihilation” of our own civilization.
What matters now is how willing we are to defend the principles of liberty that are our rich inheritance. What America has tried to teach the world about the nature of human flourishing is true. Truth and freedom, live or die, together. These ideals deserve our allegiance and “the last full measure of devotion.” And, whether people like it or not, our insights about rights, reason, and revelation derive from, and were shaped by, the Christian revolution. The distinctive attributes our founding documents attribute to human beings — reason, free will, and moral choice — would be inconceivable in the absence of a Judeo-Christian worldview.
It does not take a majority or a critical mass to “defend” a Constitution. It takes a courageous and dedicated remnant. So let us join together in common defense of our Constitution. Let us work, each one of us, on building up a bulwark of virtue, protecting the fortress stone of freedom, refusing to live by lies, and speaking with clarity to the principles that ensure our liberty. Or, as Macaulay wrote so long ago,
In yon strait path a thousand
May well be stopped by three.
Now who will stand on either hand
And keep the bridge with me?
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* Noting that just because the law must protect property, it does not follow that the underlying right to property is a mere creature of the law, Tom Bethell, in The Noblest Triumph (1999), quotes an essay by Frédéric Bastiat published in 1848: “Faculties are only an extension of the person; and property is nothing but an extension of the faculties. To separate a man from his faculties is to cause him to die; to separate a man from the product of his faculties is likewise to cause him to die. . . . It is this very abuse of force which gives rise to association, to common agreement, to law, and which puts the common police force at the service of property.” Ayn Rand’s essay, “Man’s Rights,” makes the same point: “The right to life is the source of all rights — and the right to property is their only implementation. Without property rights no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.” Bethell concludes: “Hence, law is born of property, not the reverse.”