The elevation of Woodrow Wilson to the presidency of the United States is a defining moment in American history. It signaled the triumph of an ideology destined to transform the United States Constitution from an instrument of limited government to one of consolidation, much as had been feared by0 the Antifederalist Brutus more than a century before. That ideology is known as “progressivism,” the essentials of which are laid out clearly and unapologetically in Wilson’s “What Is Progress?” Included in these essentials are: belief in the perfectibility of human beings and human societies, demonization of the past and devaluation of time-honored traditions, and the worship of science and technology.
Many of the sentiments expressed in Wilson’s essay are understandable. After all, the decades since the Civil War had given rise to unparalleled levels of corporate wealth and political corruption. The post-Civil War Reconstruction period and the industrial revolution had produced equally unparalleled dislocations in society. All of this led to strident calls for reform, much of which was, no doubt, needed, and some of which had been actually accomplished (more-or-less) through legislation and regulation.
Wilson’s proposal, however, goes much farther than reform. His call is for revolutionary constitutional transformation, albeit couched in modest language. Like most modern progressives, Wilson swears fidelity to the Constitution. But it is not the Constitution of 1787 that claims his loyalty. For Wilson, the Constitution is–or should be–a malleable instrument that is subject to manipulation by “progressive” policy makers to achieve the social ends they desire. This is not the Constitution that the Founding Fathers wrote. It is an entirely different constitution, and it develops in an entirely different way.
The Founders’ Constitution develops according to a carefully constructed constitutional amendment process that is designed to ensure a wide consensus in support of any proposed constitutional change. This process is spelled out in Article V, and requires extensive participation of both Houses of Congress as well as the legislatures or special conventions in the states. This means that the Founders regarded constitutional development as a profoundly democratic process.
The Founders’ Constitution also established a balanced governmental framework in which no branch of government can claim ultimate authority to determine the constitutional power of another, a fact of which Wilson was keenly aware and greatly disapproved. In a book that Wilson wrote and published a few years before his presidential run, he acknowledged that the Framers “constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force.” Then he concluded that “no government can be successfully conducted upon so mechanical a theory” (Wilson, Constitutional Government, 1908, p. 54). Adoption of Wilson’s constitutional proposal would have the effect of circumventing both the Article V amendment process and the checks and balances system.
Wilson elaborates his proposal for constitutional transformation by contrasting the science of Isaac Newton with that of Charles Darwin. He views the Founders’ Constitution as mechanical, based on the “Newtonian” physics of the seventeenth and eighteenth centuries. Conversely, Wilson’s constitution is “Darwinian,” based on the evolutionary biology that had become all the rage among intellectuals in the late nineteenth century. Wilson’s metaphor is that of “organism,” which he places in opposition to the Founders’ “machine.” Wilson consummates his proposal with the following statement: “All that progressives ask or desire is permission–in an era when ‘development,’ ‘evolution,’ is the scientific word–to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.” Thus begins the career of the “living constitution.”
Yet as always, the devil is in the details. The great question left unanswered here is almost too obvious to mention: Who are these progressives that are to be permitted to interpret the Constitution according to the Darwinian principle? As noted above, the Founders had given their answer by establishing a balanced governmental framework in which no branch can claim ultimate authority to determine the constitutional power of another. That means that each of the three main branches of government is responsible for interpreting the Constitution within its own sphere of authority, but is not permitted to invade the spheres of the other branches. Nor is any branch of government entitled to concede its own constitutional authority to another branch. In this way, the Framers raised a permanent barrier against efforts by one branch of government to enlarge its authority at the expense of another.
But this system is much to fragmented, cumbersome and inefficient for Wilson, who wants to enlarge executive power by unleashing an army of bureaucrats in the growing administrative state of his time, regulators who would be appointed by Wilson himself or his subordinates and who would operate behind the scenes essentially “unchecked” to build the great house described in the final portion of his essay. This great house (American society) is one “whose noble architecture will at last be disclosed, where men can live as a single community, cooperative as in a perfected, coordinated beehive.” This utopian vision is the dream of progressives like Wilson, who believe that human beings and human societies are perfectible, that we can “all be one,” if only we rid ourselves of the shackles of the past.
But the vision is distorted, as all dreams are. Constitutions should not be interpreted according to Darwinian principles because human societies are not “organisms” at all. Even if beehives and anthills are “organisms” in some sense, human beings are not like bees or ants. We have free will, and are therefore naturally self-governing. In the words of Rousseau, we are “forced to be free.” The Founders‘ Constitution preserves self-government at the most basic level by invoking democratic processes at both state and national levels before amending the Constitution. It also protects the Constitution itself from unwarranted “informal” alteration by restricting the power of each major division of government from encroaching on the power of another. Conversely, Wilson’s “living constitution” would allow major constitutional change via “interpretations” handed down by largely unaccountable boards, commissions and courts staffed by elites who purport to know best what is good for the rest of us.
The progressives conceive their “living constitution” as something like the blueprint for a house, in which the house is built according to an original plan and can be modified, once the house is built, in whatever ways the owners of the house want. Once the blueprint leaves the hand of the architect and the house is built, the architect disappears forever and the owners are left to their own devices as to what to do. They may add on rooms, floors, tear down walls or put up new ones, and so on.
But the analogy doesn’t really work. Even though subsequent owners of a house may be legally entitled to do pretty much anything they like once the house is theirs, there may be some bad consequences, because the blueprint does more than simply establish the original design for the house. It also establishes limits–some merely implicit–to what can be done once the house is built. The blueprint also establishes a structure that cannot be violated without consequences. If, for example, the structure will only support the weight of one story, the weight of an additional story could cause the house to collapse.
In other words, the Constitution is not merely a blueprint that launches the governmental and political processes and then disappears, leaving the institutions and officials in charge to do whatever they want. Rather, the Constitution establishes a structure, not of bricks and mortar, but of ideas and principles that cannot be violated without undermining the structure itself. According to James Madison’s analysis in the Federalist, there are two fundamental general principles that comprise the main goal of the Constitution. First, it must allow for the government to control the governed. Second, it must force the government to control itself. If either of these principles is overstressed, then the other will be defeated, and the constitutional balance destroyed. If you inflate the power of government, then you deflate its limitations. Wilson’s “living constitution” risks destruction of the delicate balance between powers and limits established by the Founders.
Unfortunately, since the time of Wilson, his distorted dream of living constitutionalism has largely become a reality. The rise of the administrative state has continued virtually unabated, its officials often operating essentially unchecked. At the same time, the Congress that is supposed to supervise administrative agencies in the name of the people appears less and less able (or willing) to do so. Indeed Congress has handed over much of its law making power to those very agencies through delegation. A final irony in the legacy of Wilson’s living constitution is the rise of judicial supremacy, according to which the Constitution is thought to mean whatever the Supreme Court says it means. The Court itself said as much In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), declaring itself “invested with the authority to . . . speak before all others for their [our] constitutional ideals.” In other words, we should look to the Court–not to the Constitution–to determine what our true constitutional values are!
No doubt limited government is frustrating at time, especially for presidents, bureaucrats and judges who are convinced that they know what is best for society–even if society doesn’t know it. And such impatience with the Founders’ Constitution is still alive and well in the White House today. While an Illinois senator in 2001, Barack Obama expressed this impatience in a radio interview when he criticized the Warren Court for not breaking free “from the essential constraints that were placed by the founding fathers in the Constitution.”
I think that the Founders, with their “outmoded” constitutional mechanics, are much better guides to good government than Woodrow Wilson or Barack Obama. It is interesting that little more than a year after Wilson’s inauguration, as if to mock his inferiority complex in the face of what he regarded as European superiority due to its strong central governments that “keep up with the times,” his role model–France–was plunged into the First World War, in which millions were needlessly slaughtered. In the end, France could only be saved by America, with its “outmoded” checks and balances and limited government. In the aftermath of that Great War, the political incompetence of those same European powers created an environment that led directly to the Second World War, to which America once again was forced to come to the rescue.
In my opinion, it is time to give up Woodrow Wilson’s Eurocentric utopian constitutionalism and beat a fast retreat to the Founders, whose Constitution still stands waiting for our return, despite the beating it has taken from the progressives and their allies during the past century. The price of not doing so will be the continued erosion of American democracy, as unaccountable administrators and judges interpret away its foundations.
May 30, 2013 – Essay #74
Read Woodrow Wilson’s “What is Progress” here: https://constitutingamerica.org/?p=4342
Robert Lowry Clinton holds B.A. and M.A. degrees from Texas Tech University and a Ph.D. in Government from the University of Texas at Austin. He is the author of Marbury v. Madison and Judicial Review and God and Man in the Law: The Foundations of Anglo-American Constitutionalism (both published by the University Press of Kansas), as well as numerous journal articles and book chapters. He is a Fellow of the Center of Science and Culture at the Discovery Institute in Seattle, Washington, and was a Fellow of the James Madison Program in American Ideals and Institutions at Princeton University in 2007-08. Dr. Clinton’s main fields of study are in Supreme Court history, constitutional jurisprudence, social and political philosophy, and political theology.