For 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.
Books mentioned in this essay may be found in The Imaginative Conservative Bookstore.