The Tablets of Madison
Why do American conservatives treat the Constitution as if It were holy scripture? The Founders certainly didn't.
The following essay comes to us from
. I’m cross-posting this to remind readers that you have only one month to submit your entry to the Constitution of Consent contest. While this editor is skeptical of claims about natural law, Cook’s skepticism of the perfect Constitution is warranted. Perhaps this will inspire you to create a new constitution, perhaps using the best of America’s charter document while incorporating The Five Pillars of New Constitutional Design.The contest is open to anyone, anywhere in the world.
Patriotic, conservative Americans take two premises as an article of faith:
That our Founding Fathers enshrined the correct principles, and
That the system they bequeathed us properly actuates those principles.
This then forms the kernel of an argument, the natural conclusion of which is that any political problems we have must be solely the result of bad actors' corruption of that system.
If the premises are true, then it makes sense to conclude that all we need to do to fix things is to vote out the bad guys.
Let us set aside the question of whether or not it would ever be possible, within the system, to be fully rid of any such “bad guys.” All the evidence before our eyes ought to tell us that such a thing is not possible, but again, set that aside for now and ask a more basic question:
What if one of the premises above is simply not true?
I propose that the first premise is true. The Founders’ classical-liberal principles were natural law's ideological and political actuation. Natural law is not only true, it is universally true. It is the same in every corner of this world, galaxy, and universe. The American Founders knew as much. Whether or not they stated those principles with the maximum possible philosophical precision does not matter.
Heuristically, they had it right.
By contrast, I propose that the second premise is false. I do not believe the system they bequeathed us properly actuates those principles.
As I have offered in previous writings, ad nauseam, let me again make the following disclaimer…
The system they gave us was uniquely brilliant—the best of its kind before and since—and I do not believe that they could have, given their circumstances and historical context, done any better. Okay? This is not Founders-bashing day. I love them as much as you can love anyone who died two centuries ago. I am grateful to live—and to have lived my life—in the country they left us.
Yet I do not believe that the system they gave us properly actuates liberal principles.
Some—patriotic conservatives especially—react to such a statement as if it is literal heresy. An act of apostasy that is simply out of bounds. Why? Why is it not okay to say this? Why must we absolutely hold the Constitution as perfect…or at least as the best possible option humanity can ever devise?
The Founders themselves certainly did not consider it so. Half the Founders—the Anti-Federalists—disliked it. (Do you like having the Bill of Rights? I do. Arguably, it is the best part of the Constitution. We would not have the Bill of Rights if not for the Anti-Federalists.) Some of those who ended up ratifying the Constitution did so reluctantly. Opinion among newly independent Americans was by no means unanimous on the subject. Even the pro-Constitution Federalists were compelled to write an extensive series of complex arguments in an effort to convince people, and when reading the Federalist Papers, it sometimes seems as if they were also trying to convince themselves.
In short, one side ended up winning a very political argument and the Constitution came into being.
Why have conservatives turned this contentious political compromise into a sacred text, beyond criticism? Is it just the conservative temperament—the urge to conserve anything that is old? Is it because we have come to believe that this is the best we can ever do?
It isn’t. There are many ways to critique the Constitution and the constitutional order that has sprouted.
Lysander Spooner argues that the Constitution authorized the authoritarianism under which we now languish, or at least that it was powerless to stop it. Spooner’s logic seems inescapably true. If either of those claims is true, then the Constitution has failed to do what the Founders intended.
At least one of those things is definitely true. Probably both.
There is also this much more basic critique:
The Founders clearly believed that no government was legitimate unless it had the “consent of the governed,” and then they proceeded to give us a government to which no one consented! No American, other than the state delegates who ratified the Constitution, agreed to be governed this way, nor has any person since.
We are offered the fact that we can vote for (and run to become) politicians as the solution to this puzzle. It is no such thing. You can vote until you are blue in the face and still have all sorts of things done to you, to which you do not, and would never, agree. That is not consent by any reasonable definition of the word. People can keep repeating, over and over, that it is consent, but that does not make it true.
Most people have not heard of any alternatives, or thought of any themselves, and thus assume that this is the closest we can come to a consensual system. Failure of imagination does not make it so. The Founders, given their moment in history, did not—and possibly could not—think of anything else. That does not transform voting into consent.
The Founders have many principles, but the notion of consent is central to all of them. Violations of consent are violations of inalienable human self-ownership, and self-ownership is at the center not only of our concept of rights but of our very being. Without it, we are, as Ernst Cassirer noted, merely “lifeless things.”
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In other words, the Constitution fails to actuate the core precept of natural law. It fails to do what the Founders wanted it to do.
For these reasons (and others), the second premise from the argument above is false, which means the argument built upon them is not sound. Our problems are not solely because of bad actors. Sure, things would be better if we could vote out the bad guys and get closer to the Founders’ original vision. But if you have been paying attention for the last 200-plus years, you ought to realize that permanently removing the “bad guys” is simply not possible.
Indeed, it did not take long in our history for things to go wrong. By 1798, John Adams (who was one of the greatest patriots of the revolution) and the Federalists passed the Sedition Acts, criminalizing criticism of the Federal government. Slavery was supposed to end 20 years after ratification, and we all know how that turned out. The concept of good guys and bad guys is way more complicated than we think.
I understand why this line of argument inspires angry reactions from conservatives. The system the Founders gave us changed the world. It was the best of its kind then, and arguably still is. It helped move the world away from the myth of hereditary authority. All of this is good and true. The problem is that people have converted that truth into a secondary belief: that this system is the best that can ever be. It is thus entirely unsurprising that conservatives should seek to defend it tooth and nail.
But that secondary belief is false.
Our system did not properly actuate the Founders’ principles, and it is not the best we can do. There can be other options.
Again, please note that even if you are skeptical of other options, or have never thought of any, that still does not change the calculus here. The system is not consensual. Full stop. The system does not properly protect individual rights, and may even be structurally incapable of doing so. Even in the absence of alternatives you consider viable, those facts do not change.
I ask you to dial back the reflexive anger and really consider what I am saying. Not all Founders had the same view of the Constitution, and certainly none of them would have thought of it as holy writ, or wanted their descendants to treat it that way. Please consider the possibility that Patrick Henry, George Mason, and James Monroe were closer to the mark than Hamilton, Madison, and Jay.
Maybe we’ve been backing the wrong Founders. Maybe they backed the wrong play.
And maybe we really can do better.
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To answer your initial question about American conservatives: I think the specter of Jacobinism and fear of it play a large role in American conservatism. In quiet moments, many of them may agree with you, but fundamentally they are scared. Scared that anything other than the Constitution as written leads to the guillotine or the 21st century equivalent. They prefer the Devil they know (but of course they would never refer to it as the Devil). In their minds 200+ years of okayness can't be wrong.
You expressed quite clearly what I've felt about my most die-hard proponents of the US Constitution et al. Well done. I'd hope that you might find my own discovery of a solution to be of interest, since it remedies all of the fatal flaws you so precisely articulated.
The current paradigm, in a way, is the individual vs the group (or state, mob, etc. call it what you will). In order for individualists to be engaged in the current form of government, they must use collectivist methods. Of course the status quo, corruption notwithstanding, favors the collectivists, especially those with Bolshevik methods.
The converse of the individual vs the group would be an individualist utopia, where free persons are immune to herd dynamics. Even if possible, this too would be faulty, since humans (like any social creatures) benefit from both individualism and social participation. As Steven Covey wrote in '7 Habits,' one must first become independent and then develop interdependencies.
With this in mind, the system I propose is one that puts the individual on equal footing with the group. Both are essential, and one would not benefit at the expense of the other. But theory isn't enough. This new system must have the capability of, to borrow a modern term, going viral. The secret is a combination of mathematical principles, common to all living things, that puts natural selection into play. Borrowing another phrase, it's so simple even a caveman could do it. In fact, he did to great effect.
Happy to discuss further, should you find this new system to be a tempting idea. Suffice it to say, this will use methodology that is consistent with the Founding Fathers' goals, rather than being in opposition.
Thanks again for such a clear and salient article. Nicely done, sir.