Note to Conservatives: The Constitution Is Not Our Salvation

I wish it were, but it is time to accept that it isn’t.

In what has become an almost-daily occurrence, I received a comment this morning claiming that the Consitution has been perverted, and that our political salvation lies in restoring the limited government promised to us by that august document. And once again, I am called upon to try to break us free of that sad, albeit entirely understandable, delusion.

I began penning a reply, and then decided to finish it as a post. Here is that reply, and its completion:

I wish I could agree with you, my freedom-loving friend. I really do. And until a little over a year ago, I did agree.

But now, I am substantially convinced by Lysander Spooner's logic—that the Constitution has either authorized the growing tyranny under which we now languish, or it was powerless to prevent it. Either way, it is inadequate to the task of properly protecting human liberty.

Spooner’s formulation is an inescapable fact: one of those two things is true. For many lovers of freedom, then, this appears to leave only one potential pathway—the notion that the Constitution has been perverted in some way. And this, indeed, is the claim you have made. So let’s unpack that.

On one level, the claim is correct. There was a time when the Constitution was applied in a way that better respected the classical-liberal principles of liberty that animated many Anglophones in the 18th century. So where were those principles expressed?

In the Declaration of Independence, for sure. But the Declaration of Independence does not carry any force of law.

In the Bill of Rights, definitely. That was added by the anti-Federalists as protection against the Constitution, which they saw as threatening the principles of the Declaration.

That, I believe, is an essential fact to remember. The Founders were not a monolith…

Patrick Henry, George Mason, Samuel Adams, and plenty of others did not see the Constitution as some guarantor of liberty. They saw the Constitution as a grave threat to liberty. The Constitution was the project of Hamilton and the other Federalists. And the Federalists were less gung-ho about the principles of classical liberalism than were Jefferson and the Anti-Federalists.

Sure, they cared more about those principles than Obama or Rachel Maddow or many others living today. But in the context of the time, they were, compared to many of their contemporaries, the more aristocratic law-and-order types, who thought that the rabble were a dangerous lot, especially if given too much freedom. 

They gave us the Constitution, and destroyed the more decentralized (and thus the more freedom-respecting) Articles of Confederation in the process.

So, set aside the Bill of Rights for a moment. How exactly does the body of the Constitution protect human liberty?

It creates a series of bodies and rules for how those bodies function and interact. It creates some mechanisms whose stated purpose is to limit government: a series of roadblocks more complicated than a simple democracy. Yet we cannot escape the fact that it is government promising to limit itself. In other words, the fox will still be guarding the henhouse, but it has to go through a more complex series of steps before it can get to the hens.

Sadly, the Constitution’s added complexity (for shorthand: a constitutional republic rather than a direct democracy) just meant that it took longer for the fox to get to the hens. But the end result is the same—a pile of feathers where our freedom used to be.

The Federalist Papers were written to convince a skeptical America (and especially the Anti-Federalists) that the Constitution was a good idea. Read them, and listen carefully for all the promises that Madison and Hamilton (and Jay) make.

That bad thing that you are worried about? That won’t happen because such-and-such mechanism in the Constitution will prevent it.

Many of those promises are now worth far less than the paper upon which they were first printed. Even if we take Hamilton and Madison at their word, the bad things did happen. The Constitution did not prevent them.

The Constitution is not inherently a rights-protective document. The Bill of Rights is, but the Constitution mostly just sets up a system of government. The ethos that guided the process of creating those mechanisms certainly deemed limited government to be a desirable objective. But it is clear now that the mechanisms were incapable of keeping it limited.

Which brings us right back to the assertion that the Constitution has been perverted, and the corollary assumption that, through some amount of political action, we can un-pervert it. 

How, exactly? There was never an ideal state of the Constitution. The Sedition Acts happened right away. So did Marbury. And it was steadily downhill from there. Even if we buy the idea that there was some quasi-ideal state, how could we possibly get back there, or even remotely close?

And how could we keep it there for more than five minutes before it got “perverted” again? In the late 18th and early 19th century, the classical-liberal principles of the Founding were in the philosophical air we breathed, and we were not able to keep government limited then. How on Earth would we do it now?

I know that all of this is really triggering to a patriotic conservative. We have, for so long, wrapped up our identities in the belief that the Constitution was a sublime achievement that has been perverted by evil forces, and that if we can but defeat those forces, we can return to some better condition of limited government.

But where is the actual evidence for this near-religious conviction? And why do we delude ourselves with the belief that there would be any way to keep government limited, given the evidence of history? With only partial and temporary reprieves, we have been on a one-way journey away from limited government since the beginning.

Maybe the Constitution was a sublime achievement. But why do we now freeze it in amber, as our only possible hope? Ever since the events at Runnymede in 1215, generations of freedom-lovers have referenced Magna Carta as a crucial step in the ongoing journey toward greater respect of human liberty. But the Founders did not simply re-issue Magna Carta. They created something new. Something better.

Now is not the time to indulge the temperamentally conservative impulse to conserve the things of the past.

Think instead of Thomas Jefferson, Patrick Henry, and Samuel Adams. If they were alive today, would they be trying to preserve a system that clearly was not accomplishing what they had hoped? No. They would be doing now what they did then. They would be creating something new.

What that something might be is an important discussion to have. And such discussions are already taking place in various quarters. Indeed, such discussions have been underway for quite some time.

You may or may not be aware of such discussions. You may or may have read some of the literature, or considered various alternatives yourself.

If you have not, you should. That is where the action is now.

But if you have not, please do note that, “Oh yeah, well what are you going to do instead?” is not a refutation of the points I have made above. You must grapple with, and eventually accept, that the Constitution has failed to do what we were promised it would do, and that there is no way we are ever going to make it do so.

It is said, somewhat figuratively, that the definition of insanity is doing the same thing over and over and expecting different results. Saying that we are just one more election cycle, one great leader, away from restoring some mythical condition of a document that we have romanticized into being something that it isn’t…that is the definition of insanity.

And nothing will ever get better so long as the bulk of those who truly love freedom are stuck in that sad, though understandable, delusion.

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