How Conservatives Should Think about the Constitution

It is has long been glaringly evident that a large and vocal fraction of U.S. citizens rejects the Constitution’s blueprint for liberty. That fraction — the anti-patriotic left — rejects almost everything about the Constitution, from its federal character to its promise to provide for the common defense to its guarantee of free exercise of religion.

The left’s attitude toward the Constitution shouldn’t be surprising, given that the left rejects the cultural context of the Constitution, and of the Declaration of Independence before it. That context is the Judeo-Christian tradition, generally, and the predominantly British roots of the signatories, in particular.

Candor compels me to admit that the high-flown language of the Declaration to the contrary notwithstanding, it was a p.r. piece, penned (in the main) by a slave-owner and subscribed to by various and sundry elites who (understandably) resented their treatment at the hands of a far-away sovereign and Parliament. The Constitution was meant, by the same elites, to keep the tenuous union from flying apart because of sectional differences (e.g., diverging trade policies and foreign connections), and to defend the union militarily without depending on the whims of the various State legislatures.

But in serving their interests, the Founders and Framers served the interests of most Americans — until the onset of America’s societal and cultural degeneration in the 1960s. It was then that political polarization began, and it has accelerated with the passage of time (despite the faux unity that followed 9/11).

Lamentable as it may be, the demise of the Constitution is just a symptom of the demise of America as something like a social and cultural entity. Conservatives must recognize this reality and act accordingly. Flogging a dead horse will not revive it. America as it was before the 1960s is dead and cannot be revived.

Conservatives must face the facts and learn from the left.

These are the facts (some of which are previewed above):

1. The Constitution was a contract, but not a contract between “the people”. It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People”, etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people”, the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At most, a minimal night-watchman state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty — and I have often done just that — but this does not change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection (though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession).

8. The ultimate and truly legitimate form of rejection is civil disobedience — the refusal of individual persons, or voluntary groupings of them (e.g., family, church, club, and other institutions of civil society), to abide by positive law when it infringes on natural law and liberty.

States and municipalities governed by leftists are engaging in institutional civil disobedience (e.g., encouragement of illegal immigration, spiteful adoption of aggressive policies to combat “climate change” and to circumvent the Second Amendment; an organized effort to undermine the Electoral College; a conspiracy by state actors, at the behest of Obama, to thwart the election of Trump and then to oust him from the presidency). There are also some conservative counterparts (e.g., Second Amendment “sanctuaries” and aggressive State efforts to undermine Roe v. Wade).

The lesson for conservatives is to do more of what the left is doing, and to do it aggressively. When the left regains control of the White House and Congress — as it will given the mindlessness of most American voters — conservatives must be prepared to resist the edicts emanating from Washington. The best way to prepare is to emulate and expand on the examples mentioned above. The best defense is a good offense: Dare Washington to deploy its weaponry in the service of slavery.

Slavish obedience to the edicts of the central government is neither required by the dead Constitution nor in keeping with conservative principles. Those principles put traditional morality and voluntarily evolved norms above the paper promises of the Constitution. In fact, those promises are valid only insofar as they foster the survival of traditional morality and voluntarily evolved norms.

Related page and posts:

Constitution: Myths and Realities

The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Substantive Due Process and the Limits of Privacy
The Southern Secession Reconsidered
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Privacy Is Not Sacred
Our Perfect, Perfect Constitution
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
Abortion Rights and Gun Rights
The States and the Constitution
Getting “Equal Protection” Right
How to Protect Property Rights and Freedom of Association and Expression
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
The Answer to Judicial Supremacy
There’s More to It Than Religious Liberty
Turning Points
Equal Protection in Principle and Practice
Polarization and De-facto Partition
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility
Restoring the Contract Clause
The Framers, Mob Rule, and a Fatal Error
Freedom of Speech: Getting It Right
Suicide or Destiny?
Freedom of Speech, to What End?
Nullification and Secession
The Constitution vs. Reality
Power Is Power
The Citizenship Question
Vive le collège électoral!
Liberty: Constitutional Obligations and the Role of Religion