Originally published in Constituting America, June 21, 2016.
Republished with permission.
After defeating the challenge to natural-rights based commercial republicanism in the 1860—first at the polls, then on the battlefields—Americans faced the next challenge to their regime and its principles when Progressivism gathered adherents in the late nineteenth and early twentieth centuries. This turned out to be much less deadly, but far subtler and more effective than anything the Southern plantation oligarchy had devised. Progressives first won positions in the universities, where they educated the new generation of American lawyers, scientists, clergymen, and writers in a moral and political doctrine 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.
Such men as 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 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 and never did anything so rash as to bring one upon themselves. They only needed opportune circumstances in which their well-defined doctrines would seem attractive, first in the tumultuous early years of the movement, when labor strife crested, then 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 Johnson and Obama administrations.
In the 2016 election, once again the Constitution is at issue, although in some ways less clearly than in 1912, 1932, or 1964. The one candidate who based his campaign squarely on the hope of restoring the original understanding of American constitutionalism, Senator Ted Cruz of Arizona, has now dropped out of the running. This leaves us with the two likely nominees, former New York Senator and Secretary of State Hillary Clinton and New York real estate developer Donald Trump. How do they understand the United States Constitution?
Their campaign websites reveal a lot about their view–in some ways more than they may have intended.
Secretary Clinton’s website features “112 reasons (and counting!) Hillary Clinton should be our next president.” By the time you read this, I am sure many more will have been conceived. One of them is that the next president will likely nominate several Supreme Court justices—it being clear to Secretary Clinton that she will make wiser choices than her opponent. Overall, however, it must be said that the Constitution does not loom large on the list. Solar panels, background checks for gun purchases, student loans, health care, removal of “sentence disparity between crack and powder cocaine” all get a shout-out. What is more, “She has made LGBT rights a priority of U. S. foreign policy.” And perhaps above all, Secretary Clinton is “a progressive who gets things done”—that last phrase a slap at her Democratic primary opponent, Senator Sanders, a socialist whose record of legislative achievement has not furnished him with any major talking points. It is fair, then, to say that Secretary Clinton self-identifies with Progressivism and therefore with the notion of an “elastic” or “living” Constitution. Her list of legislative proposals never says, but merely assumes, that they are constitutional. In the immortal words of her Progressive ally in the House of Representatives, Speaker of the House Nancy Pelosi, upon being asked if nationalized health insurance is constitutional, “Are you kidding?” Don’t we all know 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 issuing executive orders) tell us what the law is?
In 2013 Secretary Clinton became the proud recipient of the Liberty Medal, awarded annually be the National Constitution Center in Philadelphia. The Center selected her “in recognition of her lifelong career in public service and her ongoing advocacy effort on behalf of women and girls around the glove.” That is, the Constitution Center honored her for nothing specifically constitutional. Nor is the award intended anyone necessarily American. Last year, it went to the Dalai Lama—an estimable man, but a Tibetan or, if you prefer, ‘a citizen of the world.’ Judging from this pattern, globalism trumps both nationhood and constitutionalism at the National Constitution Center.
Speaking of trumping, the website of the presumptive Republican nominee turns out to be an interestingly mixed bag, as far as the Constitution is concerned. First of all, it actually mentions the Constitution—at least, one part of it, the Second Amendment. And it doesn’t merely assert the right to bear arms. It goes further, saying where the right does not come from: “The Constitution doesn’t create that right—it ensures that the government can’t take it away.” The right to bear arms “is about self-defense, pure and simple.” If we already have a right to defend ourselves, prior to our Constitution-writing—and in fact we were defending ourselves when we declared our independence from the British Empire, eleven years before the Philadelphia convention—then where does the right come from? Mr. Trump’s website doesn’t say, but at least it doesn’t contradict the fundamental principles of the Founders, that rights exist by nature.
Similarly, the website is consistent with, without clearly enunciating, the idea that the American Union rests on a social contract among its members. The sentence “A nation without borders is not a nation” implies that human beings come together to form nations, and not that nations arise from ‘blood and soil’—a European notion that has caused no end of trouble in the past two centuries The call to “end birthright citizenship” similarly suggests a contractual rather than a biological bond, and that the widespread interpretation of the Fourteenth Amendment as establishing birthright citizenship is mistaken. This means that Mr. Trump disagrees with the Supreme Court’s 1898 ruling in U. S. v. Wong Kim Ark, the source of the birthright-citizenship claim.
Extending the search beyond the website itself, we learn that Trump is no Progressive when it comes to his understanding of the Constitution itself. In a televised interview, Anderson Cooper asked, “Do you see the Constitution as a living, breathing document, or do you see it as something set in stone a long time ago?” 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 “a long time ago” implies that it is somehow irrelevant to this day, outmoded. But true to his tendency to go ahead and gulp down his interrogator’s bait, then dare him or her to reel him in, Trump went right ahead and replied, “I see the Constitution as set in stone.” A prominent member of the construction industry, he may not mind the idea of a firm foundation.
His critics are not so sure he sees the Constitution as set in stone. For example, when challenged on his stated intention to expand the libel laws to protect public figures such as himself, he cited not the U. S. Constitution but English common law, which does indeed put the burden of proof of libel on the accuser and not the accused. The obvious problem (as a patriot like Trump should see) is that this isn’t England. And when Mr. Trump threatened Senator Cruz with legal action for one of his campaign charges, Cruz ended the discussion by saying he would welcome the opportunity to depose Trump in a courtroom. Other critics have remarked Mr. Trump’s apparent enthusiasm for a rather expansive definition of eminent domain, one that seems to include takings of property not merely for clear-cut public goods—a roadway, for example—but for the benefit of private developers (such as himself) whose acquisitions would lead to increased revenues for the municipality in which the development was located and therefore (so his argument goes) serve the public good. That strikes many observers as a bit of a stretch.
Probably the most intense unease about Mr. Trump’s constitutional bona fides arises from the general tone of his campaign. Entertaining and unforgettable it has been. But even his most devoted supporters find it hard to claim that he has elevated the level of American political discourse. A candidate who takes pride in refusing to keep a civil tongue in his head raises pardonable worries about his respect for the framework of civil society itself. The rule of law, including constitutional law, requires an underlying tone of law-abidingness and civility if we are to sustain it.
On this 240th anniversary of our Declaration of Independence, a year away from the 220th anniversary of the Constitutional Convention, we see a presidential election between two candidates who give constitutionally-minded Americans cause for worry. The Democratic Party candidate gives every sign of continuing the longstanding Progressive effort to replace American moral and political principles, in part by making the constitution malleable. The Republican Party candidate articulates a reasonably sound basic understanding of the nature of American constitutionalism, but also veers off that foundation in ways that do not build confidence in what might be called his constitutional temper.
In this, Americans have reaped what academia has sown. Whether we consider the original Progressivism of 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 New-Left 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. This underlying moral and intellectual decay cannot be remedied by an election.
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