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27-US.ConstitutionFor decades, modern conservatism has championed the Constitution of 1787 as the touchstone of American freedom and bemoaned the Left’s departure from the true meaning of the document as the cause of America’s political, economic, and even moral decline. Indeed, at the heart of the Tea Party movement is the sincere belief that if Americans come to understand what the Constitution says, and what the Founders meant for it to mean, and if the feet of politicians are held to a Madisonian sacred fire, then the United States will undergo a Machiavellian return to first principles, the era of big government will really be over, and liberty will be restored across the land.

The problem with this analysis is that the Constitution is itself responsible for the inexorable growth of government in America over the last 220 years.

I came to this realization slowly—and reluctantly—over the last decade of my intellectual life. Like all good conservatives, I had always shared the Tea Party vision and believed that the Left had made its peace with the American order by inventing the notion of a “living” Constitution that changed organically to fit itself to the times. Liberals, I believed, deviously warped history by suggesting that it was the genius of the Philadelphia Framers to design a document that was open-ended and flexible. Liberals did not believe this, of course, but it was their ingenious way to pretend that they too honored the Constitution and were therefore every bit as patriotic as those Americans who cling to guns and religion.

It wasn’t until recently, when I came into close quarters for an extended period with a horde of Constitution-loving Leftists, that the stunning truth hit me: Liberals really do love the Constitution— and not just the ephemeral “living” version by which they dream up new rights and powers possessed by the federal government. They actually like the original document too, the original words, every bit as much as Clarence Thomas and Antonin Scalia do. How can this be, I wondered?

The answer is the Framers of the Constitution who were primarily responsible for its ultimate form and who played key roles in engineering its ratification— James Madison, James Wilson, Gouverneur Morris, and Alexander Hamilton—were themselves “living” Constitutionalists, who favored the creation of a central government with powers beyond what the vast majority of Americans in the eighteenth century would ever have countenanced. “America’s first neo-cons” (to borrow Gleaves Whitney’s term) craftily designed the document so that the door to the expansion of government power was firmly ajar, most significantly through the “necessary and proper,” and “general welfare” clauses. No matter the motivations, wishes, or understanding of the other thirty-five men who signed the Constitution, it would be the actual words of the document that would matter.

It is quixotic for conservative constitutionalists to charge into battle armed with the doctrine of original intent, or its sister theory, the doctrine of original meaning. For there was no consensus among the Framers of the summer of ’87, or more broadly among Americans in the late eighteenth and early nineteenth centuries, about the intent or meaning of much of the Constitution. Consider the following: the early contest about the constitutionality of a national bank and the resultant opposing interpretive theories of Hamiltonian “loose construction” and Jeffersonian “strict construction”; the early Supreme Court case, McCullough v. Maryland (1819), in which Chief Justice (and high nationalist) John Marshall ruled that states could not tax federal entities within their borders; the famous Webster-Hayne debate about the nature of the Union under the Constitution. Upon whose original intent and meaning are we to rely?

In fact, even the nationalists at the Philadelphia Convention of 1787 (misleadingly still called the “Federalists” today) admitted that the text of the Constitution did not speak for itself in a sola scriptura sort of way. As Steve Ealy has pointed out, Publius admitted in the Federalist (numbers 37, 78, and 82) that various sections of the Constitution needed to be “liquidated,” i.e., their meanings figured out through experience over time. Every man was to be his own Madison.

And if one really insists on clinging to original intent, let’s look at the original intent of the Madisonian nationalists at the Philadelphia convention. Madison himself admits in his Notes on the Federal Convention of 1787 that he proposed giving the new federal government an absolute veto over state laws. Though the measure failed, his ally Hamilton laid out the case for judicial review soon after in the Federalist, and John Marshall saw to it that the Supreme Court would exercise such a de facto veto power.

Madison reports some of the more overtly nationalist sentiments expressed by his allies during the secret proceedings of the Philadelphia convention. (And let’s be frank: Had the curtains not been drawn and the windows of the Pennsylvania State House shuttered that summer, the nationalists would have been tarred and feathered by the liberty-loving citizens of Philadelphia.). Gouverneur Morris lamented that the states could not simply be done away with immediately, though George Read of Delaware insisted that this should be an ultimate goal of the Constitution. Robert Yates of New York recorded that Hamilton lamented that the extinguishment of the states would probably not be possible.

That great “drunken prophet” (to borrow Bill Kauffman’s appellation) Luther Martin of Maryland, the Convention’s most outspoken “Anti-Federalist” (a misnomer, for Martin and his ilk were the true federalists), attested in his report to the Maryland legislature after the conclusion of the Philadelphia Convention, that it was the “object and wish” of the nationalists “to abolish and annihilate all State governments, and to bring forward one general government, over this extensive continent, of a monarchical nature.” According to Martin, the nationalists sought “covertly .  . . to carry into effect what they well knew openly and avowedly could not be accomplished.”

Do you still want to cling to original intent, my conservative friends?

If conservatism means limited government, then, yes, we conservatives must reject the work of Madison, Morris, Wilson, Hamilton. The Constitution they created was—and was intended to be—an instrument of an imperial government. And that the Left has made sure it has become. The Constitution is indeed living, the genie is out of the bottle, and we conservatives lose when we argue with the Left on the ground of constitutional interpretation. Instead, we need to argue on the true first principles of America: those of 1776, those of liberty.

It troubles me that we equate patriotism with loyalty to the Constitution—as if our country and system of government were one in the same and inseparable. The President of the United States, as well as our soldiers, take an oath to defend the Constitution. What does that mean? Shouldn’t the oath be to defend the country itself?

Why do we honor this positivist, mechanistic frame of government above all else? It declares no enduring, unalterable principles of liberty, no eternal truths. It simply describes how the government will function and, all too vaguely, what the central government can and cannot do. Through the formal amendment process, any part of it can be changed, including those sections that express the rights of citizens that we all consider sacred. If we repealed the Constitution tomorrow, would our country be diminished in some basic way?

I love my country above its system of government. I honor the Constitution only insofar as it ensures liberty, and when it has come to be the means by which others—through a legitimate and perhaps inevitable mode of interpretation—come to take away my liberty, my veneration of it evaporates.

Thankfully, there is hope, as the Fourth of July remains the preeminent national holiday in the hearts of Americans, despite attempts by the educationist establishment in recent years to force us all to celebrate September 17 as an equally important day.

So, let the liberals have Constitution Day. On September 17, I will drink a toast—or more appropriately, several—to the liberty- and libation-loving Luther Martin and his anti-consolidationist, anti-imperialist allies, the true political ancestors of modern American conservatism.

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12 replies to this post
  1. Brad, truly an excellent piece. I have believed for a long time now that constitutional interpretation, from the moment the ink was dried, was an early exercise in post-modernist literary criticism.

    A document built on Lockean rights must go the way it has gone, since such rights are a quantity which escapes the constraints of scarcity. As The Wit has put it, "So many rights; so little time." Oddly enough, the only "right" in the constitution that is actually tied to a responsibility is the one that gets so little respect, the second amendment.

  2. An interesting piece, and a point-of-view congenial to my way of thinking. The relation of constitutionalists to their guiding document (however understood) works in a way analogous to the relation between sola-Scriptura Christians and the Bible (however understood). I.e. it's a case of what some have called "bibliolotry," in which a text is taken (ineffectually) to replace a person. Of course, this sort of reverence for the constitution doesn't replace reverence for a particular person (as in Christianity), but for a particular idea of human nature.

  3. Steve, thanks for posting this, as it reveals your willingness to be blunt and open as well as provide a different voice from within the conservative movement. That written, I disagree with you wholeheartedly. Your argument implies a unanimity among Federalists. This, of course, was simply not true. Federalists such as John Dickinson offered a virtuous vision of the constitution whereas nationalists such as Rutledge provided a utilitarian argument. No doubt the constitution had flaws. The first century of American history reveals this rather clearly. But, I thank God on a regular basis to live under this document. It is rooted deeply in reason, Natural Law, and history. While imperfect, it reaches toward perfection better than any other modern document.

  4. Steve, why do you think anti-federalists submitted to rule under the constitution? I ask this in all curiosity. The most impressive opponent of the constitution, to my mind, was John Taylor of Caroline. Even he accepted the constitution through his actions. Thanks, Steve.

  5. You'd better get down on your knees and thank God for the U. S.
    Constitution & pray for its revitalization and survival in our age of
    fanaticism and ideological onslaught–not just today but everyday! You
    don't know when you're well off. As some seer remarked, the
    Constitution is the boat, the rest is the sea.

  6. Well I love this. Though ultimately I side more with Brad when it comes to your rather broad-brushed treatment of the Federalists–or I think I do anyway–I very much appreciate the contrarian spirit of Steve's post and the willingness to probe and rethink assumptions.

    "It troubles me that we equate patriotism with loyalty to the Constitution—as if our country and system of government were one in the same and inseparable."

    I agree wholeheartedly!

    "The President of the United States, as well as our soldiers, take an oath to defend the Constitution. What does that mean? Shouldn’t the oath be to defend the country itself?"

    I disagree wholeheartedly!

    Ideally the pledge to defend the Constitution puts certain explicable limits on the behavior of our President and our soldiers. And if it hasn't exactly led to restrained limited government, consider that neither has it led to juntas or military dictatorships.

    Politicians generally do harm to the country. The soldier who swears an oath to defend his country might consider the various means by which he could fulfill that oath.

    Some conservatives may complain about civilian oversight in military matters (and not without reason: consider only LBJ timing bombing runs in relationship to the evening news while specifically ignoring tactical disadvantages). But a civilian-directed military is one of the signs and guarantees of a civilized, ordered society.

    I certainly agree that turning the Constitution into the timeless and universal embodiment of political truth is a grave mistake with quite-literally-deadly consequences. People lived before it existed and will continue to do so after it's gone (barring an Armageddon of God's or our own making).

    Ellis, I'm not convinced of the Constitution's efficacy to save us from fanaticism and ideology. Perhaps you should consider another kind of salvation for which you might thank God while on your knees–the kind that counts in Canada, the kind that mattered after political order crumbled around Saint Augustine, and the kind that will matter after ours falls. As it must.

  7. Yes, Madison and Hamilton (and Washington, Adams, and Marshall) were nationalizers.

    But Madison, or at least the Madison of 1787, did not win everything. Famously, his proposal to give the national government a veto over state legislation did not pass at the Convention.

    The Convention came out of the New World American experience of 150 years — as well as out of Lockianism and Hobbesianism. The individual states could not be abolished (it is conceivable that Madison and Hamilton would have gone that far). Thus, the Constitution is based on that social compact or compromise between the already established practice and tradition of government and the "new science of politics."

    Yes, the necessary and proper clause and the general welfare clause have been openings for nationallizers. But they were not barn doors until recently — that is, for a long time in this country, there was an understanding of, practice, and culture of decentralized government.

    If there no design to limit the powers of the national government, actually, the powers of Congress, then there was no reason to "enumerate" the powers of Congress. A general welfare clause would have been sufficient. And if there was no understanding that it was a vertical "compound republic" as well as a horizontal (separation of powers) one, then most of the substance of Federalist 39-50 and into 51 as well was nugatory.

    The center did not hold. After federalism was killed off, it was not accidental that the separation of powers, now breathing its last under Bush/Obama, would die as well.

  8. To Ellis: I thank God for what liberty we Americans have enjoyed over our history, but this liberty did not spring forth Athena-like from the head of James Madison or his Constitution. American liberty has endured primarily because of American political culture. I find it amazing that so many conservatives seem to assume that increasing the power of government, as the Framers did in 1787, can be done without diminishing the liberty of the people. Contra the alarmist propaganda of Henry Knox and other nationalists, the united states were not on the brink of anarchy in 1787. Isn't it arguable that we Americans would have enjoyed more liberty in the last 220 years under the Articles of Confederation? I think it is inarguable that we would have had less government in our lives!

    To Brad, re my alleged painting of the Federalists with a broad brush: I was careful to use the term "nationalists" to describe the faction in favor of centralization of power and even named the leaders of this group (Madison, Wilson, Hamilton, G. Morris). The nationalists are a subset of the so-called Federalists. And yes, Brad, there were a number of honorable men, including John Dickinson, who supported the Constitution. I think they were simply insensitive to the dangerous wording of key parts of the document and insufficiently suspicious of the motives of Madison & Co. As to why many Anti-Federalists reconciled themselves to the Constitution: Isn't this what good conservatives do–accept political outcomes and make the best of it? Conservatives rarely turn to revolution when they are the losers in a political contest. To explain why each individual Anti-Federalist who accepted the Constitution did so would require examining each one's biography, and space here doesn't allow for that. Let it be said, however, that Luther Martin refused for the rest of his career to hold a federal office under the Constitution. Of course, he did not flee to Canada or the West Indies but accepted the document as the law of the land and its adoption as a settled political act. Hail, Luther Martin, true man of principle and true conservative!

  9. Thank you for saying what few Americans realize and what fewer will say. My view of the Constitution has changed drastically since my departure from PHC.

    The Constitution was designed from the very start to create a more powerful central government than existed at the time. The presence of the first 10 amendments becomes almost moot once this point is understood. From a libertarian perspective, there is almost nothing preferable in a centralized government compared to individual state governments. The waging of endless wars and the collecting of taxes are not good things… and we can thank the U.S. Constitution and its child, the Federal Government, for those things as they exist today.

    The branches of federal government… judicial, legislative, and executive… are self-serving and operate within a always-win framework. For instance… who has control over the judicial branch? The executive… which appoints judges. Other examples are legion.

    The Constitution does nothing to secure our liberties or our "God-given, inalienable rights." All it has done is authorize and legitimize the creation and continuous growth of the federal government. And the federal government has the power to interpret its document as it sees fit. No need for a fourth, "interpretive" branch because the other three are doing a fine job of it already. The path to tyranny was opened with the penning of that document. The founders themselves knew this… and more than one said, essentially, "liberty is in danger when godless men are in power." Well, guess what… we gave godless men the avenue to power through the creation of the U.S. Constitution.

    Since my time at PHC, I have become a free-market libertarian anarchist. I hope someday the federal government (and 99% of the obesity of state governments) is not just curtailed, but eliminated.


  10. My apologies for a belated response to Steve Klugewicz's Unconstitution Day Essay, but when it was orignally posted I was out of the country and didn't have a chance to read it until I returned. Since Steve alludes to some of my work in support of his argument let me first provide the citation so that anyone interested in seeing what I argued may do so: "Publius on 'Liquidation' and the Meaning of the Constitution," in Stephen M. Klugewicz and Lenore T. Ealy, HISTORY, ON PROPER PRINCIPLES: ESSAYS IN HONOR OF FORREST MCDONALD (ISI, 2010): 49-64.

    Next, let me disassociate myself from Steve's conclusion that we should not celebrate the Constitution. From my perspective the difficulty in Steve's argument is found in the second paragraph of his essay: "The problem . . . is that the Constitution is itself responsible for the inexorable growth of government in America over the last 220 years."

    The problem, dear friends, is not to be found in the Constitution, but in ourselves. The Constitution establishes a framework for self government. It contains checks both on popular sovereignty and on the abuse of power by the various branches. But the Constitution is not, like the cord that Odysseus's crew used to bind him so that he could safely listen to the sirens, absolute in its power to restrict foolish or harmful action. As I used to suggest to my students, stupidity may be harmful or even fatal, but it is not necessarily unconstitutional. And if as a people we are determined to give away our freedom or destroy ourselves, the Constitution can perhaps slow the process but cannot ultimately save us from ourselves.

    Section 15 of the Bill of Rights of the Virginia Constitution of 1776 reads as follows: "That no free government, or the l]blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles."

    I agree with that sentiment completely, and that is why I am an opponent of original intent, which is the target of my essay. Justice, prudence, virtue, and temperance are fundamental principles but original intent is not. Unless one is willing to take the approach that Martin Diamond does, and argue that just because someone happened to be at the Constitutional Convention doesn't make them a Founder,but only the wisest qualify for that title (for for Diamond that means Madison and Hamilton), one discovers disagreements not only between Federalists and Antifederalists, but among the Federalists themselves. Indeed, in my essay cited earlier I attempt to show at length that Publius disagrees with himself with the Federalist Papers.

    But none of this is grounds to jettison the Constitution; rather it should motivate us to engage in the practice of self government and recur, both in debate and in action, to fundamental principles.

    My advice in the belated Constitution Day meditation: read the Founders in action in Madison's Notes on Debate at the Convention, and then go and do likewise.

    Steve Ealy

  11. Thanks to my friend Steve Ealy for clarifying the central argument of his excellent essay on the "liquidation" of the Constitution. I certainly did not mean to imply that Steve agreed with my own conclusions. I simply cited Steve's essay in the context of my point about the pitfalls of original intent, and here Steve and I are in agreement.

    Steve is right that, ultimately, it is the fault of Americans that we have lost much of the liberty we once enjoyed. As Teddy Roosevelt said, the people are ultimately the makers of their Constitution. Parchment barriers, no matter how well designed, will ultimately fail if the people choose to ignore them. I hold to my point that the Constitution is seriously faulty (by design–of Madison et al.) in its attempt to institute limited government in perpetuity. On the contrary, it gives centralizers all the tools they need–in a way that would have been nearly impossible under the Articles of Confederation–to create an American Empire. In modern times, the Constitution is justifiably used by the Left as a hammer with which to chip away at our liberties. We conservatives, therefore, should stop appealing to it as the panacea for our modern political ills.

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