Abandoning the Constitution

When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or denied, the constitution can no longer impose limits on the power of government.

Editor’s Note – This essay was originally published in the Claremont Review of Books in the Spring of 2012.

America has a problem, not because of our Constitution but because constitutionalism as a theoretical doctrine is no longer meaningful in our politics. A constitution is meaningful only if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation. If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government.

When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or denied, the constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the 20th century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative State. It was a theoretical doctrine, the philosophy of history, that effected this transformation and established the intellectual and moral foundations of progressive politics.

Established on the foundation of natural rights, constitutionalism has been steadily undermined by the acceptance of the new doctrine of History. The Progressive movement, which is the political instrument of that theoretical revolution, had as its fundamental purpose the destruction of the political and moral authority of the U.S. Constitution. Because of the success of the Progressive movement, contemporary American politics is animated by a political theory denying permanent principles of right derived from nature and reason. In exposing the theoretical roots of progressivism and the liberalism it has spawned, it is possible to reveal the difference between a constitutional government and the modern State. That difference, both theoretical and practical, becomes apparent in comparing constitutionalism as it was understood by the American Founders and Thomas Paine, and its transformation at the hands of the most successful Progressive politician of the 20th century, Franklin Roosevelt.

Constitutionalism: Two Views

Paine spoke for nearly all the founding Fathers when he wrote “a constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government.” Paine said he had to deny what had “been thought a considerable advance towards establishing the principles of freedom…that government is a compact between those who govern and those who are governed.” He knew that the defense of the sovereignty of the people and the protection of their individual rights required the firm establishment of the distinction between government and constitution, with the latter resting upon a social compact of the people themselves. “The fact therefore must be,” he insisted, “that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government; and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”

The social compact, therefore, must be understood in terms of a distinction between nature and convention. A constitution, unlike government, derives its authority from the laws of nature, or reason, which requires the protection of the natural rights of individuals as the chief purpose of government. It rests upon a political theory that established principles designed to serve that purpose. Consequently, it is possible to determine the powers and limitations of government precisely because its authority is derived from a more fundamental compact. A constitution, therefore, Paine noted,

is the body of elements…which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments…the powers which the executive part of the government shall have…and the principles on which it shall act, and by which it shall be bound.

Paine assumed that nature and reason, not government, established the ground from which those principles arose. The distinction between a constitution and government must rest upon the possibility of distinguishing nature from convention, reason from will (or passion), and natural (or fundamental) from positive law. The founders, like Paine, had been unwilling to risk the defense of human freedom and the rights of individuals by reaffirming the age-old corrupt bargain between the rulers and the ruled. Consequently, the American Founders had insisted that the social compact is of the people, themselves. It was not promulgated with the permission and consent of any actual governing body, but rested on the eternal laws of nature and reason. Only upon the foundation of natural right had it become possible to establish the rational authority of an enlightened people to institute government on its own behalf.

A written constitution, therefore, is an attempt to spell out the conditions of just and reasonable government. It separates the law made by government (i.e., by legislative majorities) from the fundamental law, made by the people to protect their natural rights. The laws of legislative majorities are legitimate only insofar as they are consistent with the principles laid down in the fundamental law. A written constitution viewed merely as positive law would be wholly unintelligible theoretically. But, in 1932, Franklin Roosevelt expressed a view, common among liberals, that the time had come to reinterpret the social contract in response to modern conditions. Animated by a progressive understanding of History, such a fundamental reappraisal was thought necessary because it was assumed that there could be no permanent principles of political right. In Roosevelt’s creative interpretation, spelled out in his Commonwealth Club address in September 1932, he noted:

The Declaration of Independence discusses the problem of government in terms of a contract. Government is a relation of give and take, a contract, perforce, if we would follow the thinking out of which it grew. Under such a contract, rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon government and those who conduct government.

Roosevelt assumed and simply asserted that the compact is between government and the people. But that is contrary to both the theoretical and practical meaning of the original social compact. The principles of the Declaration of Independence, and the political theory of constitutionalism, rested upon the defense of individual natural rights as the best ground to ensure the sovereignty and safety of the people.

Indeed, what established the link between the principles of the Declaration of Independence and the political science of the Constitution is the notion of the people as sovereign, with government as the people’s creation and servant. It was on this ground that Jefferson could justify the revolution against Britain; it had become “necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” Therefore, it was with reference to the Laws of Nature that it had become possible to say on behalf of that people:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This is not a compact of government with the people. It is the people who assign government its role, which is the protection of their individual rights; when it fails to do so, it must be altered or abolished.

Similarly, the Constitution begins by institutionalizing the authority of the people as the foundation of the compact: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” It is the people who established a constitution. It was the Constitution, or the compact of the people, that instituted and limited the power of government, by subordinating governmental institutions to the authority of a written constitution (and separating the powers of the branches of government).

In Roosevelt’s reinterpretation, government or the State determines the conditions of the social compact, thereby not only diminishing the authority of the Constitution but undermining the sovereignty of the people. By suggesting that the people accord government power on the condition that they are given rights, the concept of social or group rights (and subsequently entitlements), becomes the moral foundation of government. The purpose of government is therefore linked to the satisfaction of needs, economic and social. Consequently, Roosevelt would insist that “the issue of government has always been whether individual men and women will have to serve some system of government or economics, or whether a system of government and economics exists to serve individual men and women.” Understood in this way, the economic (and social) system must come under the control of government before it can serve the people. And government must, of necessity, become the arbiter of rights, both economic and political. The will of the people must be established by government before it can be put into effect by the technical expertise of its bureaucracy. At that point, politics must give way to administration. In Roosevelt’s view, the moral authority of government had come to replace the moral authority of the people’s compact, and the sovereignty of the State would come to replace the sovereignty of the people. By undermining the attachment of individuals to the constitutional order as the best defense of their rights, progressivism teaches them to believe that government is the only source and defender of their rights…