Our Constitutional Crisis

Yesterday we celebrated Constitution Day, which marks the date of the signing of the U.S. Constitution in 1787. It is meet and right to praise the Constitution, a remarkable document framed by 55 remarkable men, described by the absent Thomas Jefferson as “an assembly of demi-gods.” These delegates were presented with an opportunity to create, as Alexander Hamilton put it, a government founded on “reflection and choice” rather than on “accident and force.”

But we must also confront the reality that despite the founders’ success in creating such a government, constitutionalism today faces a serious crisis. The reason for this crisis is that the inextricable link between the Constitution and the Declaration of Independence, as the framers understood it, has been ripped asunder.

For the founders, the Constitution provided the framework for the kind of government envisioned by the Declaration. But in recent times, the sundering of the Declaration from the Constitution has led to the political crisis that we face today: a lawless executive, a Congress and judiciary complicit in this lawlessness, leading to an out of control federal government that makes a mockery of the idea of a self-governing people.

The Apple of Gold

The link between the Declaration of Independence and the Constitution was nicely captured by Abraham Lincoln in a fragment most likely composed in the winter of 1861, shortly before his inauguration. Contemplating the nature of the Union and the Constitution in the face of the secession crisis, Lincoln argued that the Constitution is principally a framework for sharing power within a republican government. He contended that this was the real thing to be preserved, because only republican government is capable of protecting the rights and liberties of the people. But Lincoln also saw the Declaration of Independence as the foundation of such a government, and the Constitution as the means of implementing it.

In this fragment, Lincoln observes that as important as the Constitution and Union may be, there is “something back of these, entwining itself more closely about the human heart. That something, is the principle of ‘Liberty to all’” as expressed in the Declaration. With or without the Declaration, Lincoln continues, the United States could have declared independence, but “without it, we could not, I think, have secured our free government, and consequent prosperity.”

Using as his text Proverbs 25:11, “A word fitly spoken is like apples of gold in frames of silver,” Lincoln argues that the Declaration’s principle of liberty, a “word ‘fitly spoken,’ . . . has proved an ‘apple of gold’ to us. The Union and the Constitution are the picture of silver, subsequently framed around it,” not to conceal or destroy the apple “but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture. So let us act, that neither picture, [n]or apple, shall ever be blurred, or broken.”

The late Walter Berns once wrote that in the United States, laws derive 

from a constitution that is related to the Declaration of Independence as effect is related to cause, and the Declaration, the cause, is a political statement of a philosophical teaching concerning the nature of man, Providence, and nature itself. In it we learn that nature’s God endows all men with the rights of life, liberty, and the pursuit of happiness, and that government is instituted to secure these rights. That the Constitution was understood by its framers to have as its purpose the establishment of such a government there can be little doubt.

So the founding generation, as well as Lincoln, saw the Constitution as the means for implementing a certain type of government, a republic based on the equality and consent of a self-governing people. In what respect are we equal under the Constitution? Only in our natural rights, which the Constitution is intended to protect. A corollary holds that all human beings are equal in the sense that no one person may govern another without the latter’s consent.

The Declaration of Independence maintains that nature, including human nature, is accessible to human reason. Human reason can ascertain the “Laws of Nature and of Nature’s God” and certain self-evident truths, viz. “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”

Governing a Nation of Men, Not Angels

But as James Madison noted in Federalist 51, because men are not angels, government requires certain “devices” to control potential abuses of government. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Thus while the founders’ Constitution is based on mutual trust among fellow citizens, it embodies a deep distrust of those who hold power.

One of the most important devices for controlling the abuses of government is the separation of powers. As Madison notes in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”

Thus for the founders, a successful republic required not only virtuous citizens and broad civic trust but also mechanisms to prevent government abuse. This was simply prudent. While they hoped that enlightened public-minded men would govern, they also realized it was necessary to have a government architecture that would minimize the damage we could expect from less enlightened and public-minded individuals in power.

So to reiterate: the political philosophy of the American republic is to be found in the Declaration of Independence. The architecture for implementing that political philosophy is the Constitution. Paraphrasing Lincoln, the “apple of gold” is the Declaration. The “picture of silver” is the Constitution. The latter exists to “adorn and preserve” the former.

Clearly this is not the situation that prevails today. Our presumed governors have cast aside the apple of gold and use and abuse the frame of silver at will. Barack Obama willfully ignored constitutional strictures, famously using his “pen and phone” to do as he pleased regarding (to give just a couple examples) an agreement with Iran and with respect to immigration policy. If anything, Joe Biden has been worse. With only few exceptions, Congress and the courts have supinely acquiesced in these usurpations. In addition, with the assistance of the courts, Congress unconstitutionally delegates its legislative power to “independent” alphabet agencies such as the EPA and FDA.

There are certainly times when executive discretion is necessary: during war and rebellion. As Thomas Jefferson observed in a letter to Caesar A. Rodney, “in times of peace the people look most to their representatives; but in war, to the executive solely . . . to give direction to their affairs, with a confidence as auspicious as it is well-founded.”

This amounts to the limited “prerogative,” described by John Locke in his Second Treatise on Government as the power of the executive “to act according to discretion for the public good, without the prescription of the law and sometimes even against it.” Since the fundamental law that the executive ultimately must implement is to preserve society, it is “fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved.”

This limited prerogative is rendered necessary by the fact that laws arising from legislative deliberation cannot foresee every exigency. For the safety of the republic, the executive must retain some latitude for action in the interest of preserving itself.

But the actions of our current president have nothing to do with anything resembling such emergencies, as understood by the founders. Instead his actions represent the use of an unlimited prerogative, which the founders regarded as the source of the tyrannical excesses of the British king with respect to the American colonies. When the king could not secure the statutes he wanted from Parliament, he often sought to rule extralegally, through binding proclamations, regulations, or decrees, unilaterally suspending laws with which he disagreed.

Instead of adjudicating through the law courts, the king would instead resort to prerogative tribunals such as the king’s council, the Star Chamber, and various commissions. Such practices were supposed to have been outlawed by the 1689 English Bill of Rights, but the founders believed that George III had rejuvenated them in his dealings with the colonies. 

Today’s courts, for their part, no longer defend the Constitution since they no longer really believe in it. As Lino Graglia, a professor of law at the University of Texas, once remarked, today judges use the Constitution only to find phrases to support their unconstitutional decisions. We are said to have a “living Constitution” that paves the way not only for questionable constitutional interpretation but also for the manipulation of constitutional language. Our judges have become masters of torturing the Constitution to get to the decisions they want. This is possible only because they no longer see the Declaration of Independence as the apple of gold to the Constitution’s picture of silver.

Of course, others have tried to read the Declaration of Independence out of the Constitution. Chief Justice Roger Taney did so with his Dred Scott decision in 1857. John C. Calhoun created an entire political philosophy based on the rejection of the centrality of the Declaration, developing a competing political philosophy to that of Publius in the Federalist. This competing political philosophy justified both slavery and secession.

The Progressive Rejection of the Constitution

But the real change in our view of the relation between the Constitution and the Declaration is the result of the revolution in political thought effected by the Progressives in the latter part of the 19th and early part of the 20th centuries. Although many historians have treated the Progressives as merely a “good government” reform movement, the fact is that they essentially “re-founded” the American republic, transforming the basis of government from human nature and natural rights to “history” and “progress.” 

The Progressives asserted a new conception of man, who by their lights possesses no natural rights, but who does have potentially limitless material needs that must be provided by an administrative state composed of “experts.” The Progressives effectively replaced liberty with “efficiency” and the concept of “rights” with prescriptive entitlements.

While the Progressive movement is complicated and not always internally consistent, it does reflect two “big ideas:” first, there is no such thing as unchanging truth; and second, all ideas are historical. 

The era following the Civil War and Reconstruction essentially marked a return to the idea of limited government. But during this period, the “social question” began to arise: how was the American constitutional system supposed to deal with the challenges of the post-war urban and industrial revolutions? During the Civil War and Reconstruction, Lincoln and the Republicans adhered to a long tradition of Anglo-American constitutional principles. The Progressives, including intellectuals such as Herbert Croly and John Dewey—imbued with the doctrine of progress arising from German political philosophy—and politicians, such as Theodore Roosevelt and Woodrow Wilson, abandoned those principles of natural rights constitutionalism for a set of so-called modern ideas.

Above all others, Wilson, both as an intellectual and professor (he was the president of Princeton University) and later a politician, embodied the essence of the new political science. Wilson argued that the Constitution was not up to the task of dealing with the complexities of 20th century American life. The Constitution, said the Progressives, was outdated and incompetent to deal with contemporary economic and social ills. If the Constitution was to be applied at all, they contended, it ought to be applied as a “living” document, modified to meet the changes of modern life. 

While the founders established a republic based on natural law and natural right, the Progressives believed that there could be no abiding nonarbitrary standard of moral or political judgment, independent of human will. For the Progressives, government must evolve to meet evolving needs and must be guided by evolving standards of right. Thus as the Progressive political scientist Charles Merriam put it in 1920, it is impossible “that any limit can be set to governmental activity.”

The touchstone of Wilson’s new political science was his 1912 campaign address, “What is Progress?” in which he attacked the Declaration of Independence and argued for replacing the political science of the founders with a new political science based on the evolutionary theory of Charles Darwin. Wilson also expressed frustration with, if not outright scorn for, the separation of powers. For Wilson, the checking-and-balancing function of the Constitution constituted a barrier that, for many decades, had prevented the national government from enacting the social and economic policies that Wilson and the Progressives had advocated.

Ignoring the other part of Madison’s argument for separating powers—energizing government through the clash of rival and opposite ambitions—the Progressives saw the Constitution’s separation of powers as an effort to enshrine legislative primacy. In the name of good government and efficiency, the Progressives sought to create a new constitutional order, with the president as its driving force.

Accordingly, Wilson and the Progressives reconceived the presidency itself. Wilson’s executive would overcome the original Constitution’s structural obstacle by rising above them. The means for doing so was party government, permitting the president to initiate a common policy agenda in order to breach the mere “parchment” barriers that divided the legislative and executive branches. As one Wilson scholar, Michael Uhlmann, has observed:

The president would make the case for policy innovation directly to the people. Once armed with plebiscitary legitimacy, he might more easily prod an otherwise parochial Congress to address national needs. Madisonian fears about the mischiefs of faction would be overcome by separating politics and administration: Congress and the president would jointly settle upon the desired policy agenda, but its details, both in design and execution, would rely on non-partisan expert administrators’ special insight and technical skill, operating under the president’s general direction and control.

The reconceived presidency would also become the primary instrument of a new Constitution, one stripped of any foolish preoccupation with limited government. In other words, executive power would grow in parallel with the growth of government in general. No longer would the president be seen as, at best, the legislature’s coequal or, at worst, its frustrated servant. Instead, Wilson’s president would be an active government’s innovator-in-chief, one who understands the direction of historical forces but who unites this understanding with popular yearnings. For the Progressives, the president was to embody the will of the people.

The result of the Progressives’ revolution is an increasingly centralized and bureaucratized administrative state that expands relentlessly while increasing the dependence of the citizen-body on government. As Matt Spalding has observed in his recent book, We Still Hold These Truths, clients of the state are on the verge of becoming the majority faction that Madison feared as the greatest danger to free governments. According to Spalding, Alexis de Tocqueville’s warnings about democratic despotism seem more and more prophetic, as an all-intrusive state reduces the people (in Tocqueville’s words) “to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.”

But What About Slavery?

A second line of attack on the Constitution intended to delegitimize the document and undermine our reverence for it is the claim that it illegitimate because it condoned slavery. This charge is part and parcel of the New York Times’ “1619 Project” and critical race theory, which argue that America was founded on “racist principles.”

People who make this claim are making the fundamental error of confusing the principles of the Constitution with its compromises. As argued before, the principles of the Constitution arise from the Declaration. But the document itself required a number of compromises to come into existence. Abolitionists attacked these compromises as immoral. William Lloyd Garrison and other abolitionists called the Constitution a “covenant with death” and burned copies on the steps of the Capitol.

But one abolitionist who changed his mind about the founding and the Constitution was Frederick Douglass, the former slave, who came to understand that without the Constitution—which he believed was fundamentally an anti-slavery document—and the Union that it created, slavery would never have been ended in America. As the late Harry V. Jaffa once wrote, “It is not wonderful that a nation of slave-holders, upon achieving independence, failed to abolish slavery. What is wonderful, indeed miraculous, is that a nation of slave-holders founded a new nation on the proposition that ‘all men are created equal,’ making the abolition of slavery a moral and political necessity.”

No one has ever expressed the current crisis of constitutionalism any better than my friend John Marini of the University of Nevada at Reno: “A constitution,” he writes,

is meaningful only if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation. If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or denied, the constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the 20th century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative State. It was a theoretical doctrine, the philosophy of history, that effected this transformation and established the intellectual and moral foundations of progressive politics.

Or to put it another way, the apple of gold must be restored to its proper place, relative to the picture of silver. Without this restoration, our crisis of constitutionalism and all its attendant woes will continue. 

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About Mackubin Owens

Mackubin Thomas Owens is a retired Marine, professor, and editor who lives in Newport, RI.

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