Faithful readers of Constituting America’s 90-Day Study have followed the story of our constitution through each of our presidential elections. We have seen that the moral foundations of both of our constitutions—the Articles of Confederation and the United States Constitution that replaced it—find their most cogent expression in the Declaration of Independence. There, the Founders held the self-evident truth that all men are created equal, endowed by their Creator with unalienable rights including life, liberty, and the pursuit of happiness. Governments must therefore be framed to secure those unalienable rights. Our God-endowed, or natural, rights—regulated by the laws of Nature and of Nature’s God—find security in our legal or civil rights, defended by a system of government so structured as to channel the ambitions of political men and women toward the guardianship of those rights. This requires a regime designed to empower the government so our rights can be defended effectively against those who threaten them, at home or abroad. At the same time, the powers of that government will check and balance one another, so that no single individual or group of individuals will likely usurp all those powers, setting us on the road to tyranny. America’s early Constitutional conflicts centered on the question of how much power should be placed in the hands of the national government vis-à-vis the states’ governments. But whether Federalists or Anti-Federalists, Hamiltonians or Jeffersonians, all of the principal founders aimed at securing the natural rights of Americans by the means of well-designed constitutional forms.
We’ve also seen that the most important challenges to the United States Constitution have sought to undermine its moral foundations as enunciated in the Declaration of Independence. The first of these came from the slave-owning planter class, and were best articulated by Senator John C. Calhoun. Calhoun wrote a point-by-point critique of the natural-rights theory of the Declaration and advanced a correspondingly new approach to American constitutionalism—namely, the `concurrent majority’ theory, which would have given the slaveholders the legal and political means to defend their oligarchic form of rule. The Calhounian critique of American constitutionalism reached its legal culmination in the Dred Scott decision, in which Chief Justice Taney infamously contended that black Americans have no rights white Americans are bound to respect.
The second important challenge to both the Constitution and the principles of the Declaration came from Senator Stephen Douglas, the most eloquent proponent of unlimited popular sovereignty. Popular sovereignty unquestionably ranks as a Constitutional principle; the Constitution begins with the words, “We the People.” But Douglas went further. At one point in his 1858 debates with Lincoln, he turned to his opponent and demanded to know why in the world he would endanger the prospect of American expansion, the growing American empire, for the sake of “a few miserable Negroes.” In Douglas’s mind, only a fool would defend minority rights against majority interests, when those interests were so magnificent as an America that ranged from sea to shining sea. Mr. Lincoln thought otherwise, and although he lost the U. S. Senate race in Illinois he won enough adherents in the country to become our next president and to preserve the Union founded upon the moral principles that both the Calhounites and the Douglasites denied.
A new challenge to the natural rights doctrine and to the Constitution took a subtler and, thus far, much more effective approach. The Progressives first won positions in the universities, where they educated the new generation of American lawyers, scientists, clergymen, and writers in moral and political doctrines that rejected natural rights in favor of historical rights. In this historicist view, all of nature, including human nature, continually evolves; nature is part of ever-changing history. Human beings think of new rights for themselves, and invent new governmental powers to secure them. Because there are no permanent standards by which anyone can judge these claims, the project has no real limits. As the scholars in this series of articles have shown, men like Woodrow Wilson and Franklin Roosevelt intended a vast expansion of governmental powers in order to enforce an ever-expanding menu of rights suggested by never-ending social and political progress. Under the `progressive’ dispensation, presidents become not statesmen, heading the executive branch of the federal government, but leaders of public opinion, pointing us to a brighter tomorrow. To supplement this opinion leadership, Progressivism posits a need for an administrative state—a set of bureaucracies staffed by tenured professional experts who will gather executive, legislative, and judicial powers in their hands in order to implement policies enacted by the elected opinion leaders. In effect, this means that the United States has instituted a new form of aristocracy—based not on the martial and civic virtues admired and sometimes embodied by the old aristocracies of Europe, but on purportedly scientific knowledge of how to effect change in human societies.
To make this project seem constitutional, Progressives needed a new theory of constitutional interpretation. Their own evolutionary or developmental theory of human rights suggested one: the “elastic” Constitution (as President Woodrow Wilson called it) or, more famously, the “living” Constitution—a phrase deployed by scholars and judges for at least the past half-century. Under this dispensation, Supreme Court judges are entitled to go beyond the letter of constitutional law, beyond the intentions of the Framers, and make up new civil rights or bless new governmental powers when those rights and powers comport with what the judges deem to be in accord with historical progress.
No civil war resulted from this challenge because the Progressives didn’t need one. They only needed opportune circumstances in which their well-defined doctrines would seem attractive, and they found them, first in the Great Depression, then in the Second World War, and finally in an ever-expanding list of civil rights—rights conceived as the results of historical change rather than defenses of permanent natural rights. Constitutional law responded to whatever social changes seemed to be `in the air.’
For more than a century, our presidential elections have often seen disputes deriving from the tension between the old Constitution—which after all has not been entirely jettisoned—and the new, living, evolving constitution, a constitution written not so much in formal amendments as in an ever more complex array of Supreme Court decisions, administrative regulations, executive orders, and treaties. Both political parties have had their hand in this, although the Democrats have proven the most full-throated Progressives, especially (to take the post-World War II presidencies) in the Lyndon Johnson and Barack Obama administrations.
In this year’s election, once again the Constitution is at issue, although in some ways less clearly than in 1912, 1932, or 1964. The candidate required this year, as in every past election, for our constitutional republic is one who bases his or her platform squarely on the hope of restoring the original understanding of American constitutionalism. The candidate needs to understand American constitutionalism.
The next president will likely nominate several Supreme Court justices. Should America accept a president who identifies with Progressivism and therefore the notion of an “elastic” or “living” Constitution—only to include a list of legislative proposals that never says, but merely assumes, that such proposals are constitutional?
Should we, as Americans, simply accept that just anything is constitutional, that we have moved from Chief Justice John Marshall’s interpretive principle, that judges “say what the law is” to the new principle, that judges (and professional administrators, and presidents in their executive orders) tell us what the law is?
For example, concerning natural rights and the Second Amendment: If we already have a right to defend ourselves, prior to our Constitution-writing—and indeed we were defending ourselves when we declared our independence from the British Empire—then where does the right come from? A presidential candidate should not contradict the fundamental principle of the Founders, that rights exist by nature. It is, therefore, appropriate in this election year to evaluate the presidential candidates on their commitment to the Constitution. Will they closely inspect the Constitution first before pursuing any policy course? Will they faithfully protect the Bill of Rights and each of the cherished rights contained in the first 10 amendments? Will they respect the Constitution’s separation of powers and system of divided government between the federal government and the states?
Further, if we are to ask our candidates if they see the Constitution as a living, breathing document, or as something set in stone long ago, how do we want our candidates to respond? A college professor might object that the dichotomy is false and prejudicially stated. The Constitution isn’t “set in stone”; it has been amended 27 times. And the phrase such as “long ago” implies that it is somehow irrelevant to this day, outmoded. In the course of asking such questions of our presidential candidates, we are able to discern, and elect a president who understands how our U.S. Constitution works.
On this 240th anniversary of our Declaration of Independence, a year away from the 230th anniversary of the Constitution, we see a presidential election contest between candidates who give constitutionally-minded Americans cause for worry. Many express concerns about the longstanding Progressive effort to replace American historic moral and political principles, in part, by making the Constitution malleable. While others are concerned that those elected might veer off the historic constitutional foundation in ways that do not build confidence in what might be called a constitutional temper.
In this, Americans have reaped what academia has sown. Whether we consider the original Progressivism of President Woodrow Wilson’s generation—with its elastic or living constitution—or the state-building, centralizing New-Deal Progressivism of FDR and LBJ, or the denigration of civility seen in the current politics that has ensconced itself in academia and in the realms of entertainment and the news media in the past half-century, American educators have poorly served their fellow citizens. The need for the Constituting America project would not exist if the schools, and especially the universities, had continued to follow the path laid down by the Founders in the Northwest Ordinance, in Mr. Thomas Jefferson’s plans for the University of Virginia and Mr. Benjamin Franklin’s plans for the University of Pennsylvania, or the original intentions of the service academies at West Point and Annapolis.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.