by Bruce S. Thornton
The Democrats and their tribunes in the mainstream media weren’t too happy about the House of Representatives reading aloud the Constitution. The New York Times called it a “presumptuous and self-righteous act,” while New York Representative Jerrold Nadler dubbed the reading a “total nonsense” and “propaganda.” In general, critics of the public reading saw it as another example of how conservatives have made a fossilized fetish out of the Constitution by insisting that its plain simplicity and direct meaning be followed, instead of having it obscured by the various “penumbras” and “emanations” that William O. Douglas in Griswold v. Connecticut conjured up to justify creating the right to privacy by judicial fiat.
But this quarrel between “originalists” and those favoring a “living” Constitution is at heart about philosophical ideas. The proponents of an “evolving” or “living” Constitution do so on the basis of progressive assumptions radically alien from those of the Founders. These modern ideas center on the notion of progress through knowledge. In this view a universal, essentially rational human nature is progressing away from the irrational superstitions and traditions such as religion that in the past organized society in unjust and inefficient ways. This progress results from increases in knowledge, which has created the “human sciences” such as economics, psychology, and sociology. These “sciences” in turn generate techniques for reorganizing and improving social, political, and economic institutions in order to create peace, equality, and justice. But to achieve these boons, laws need to be changed to reflect this new knowledge and empower those with the skills to implement these changes. Only then will people be liberated from traditional superstitions, prejudices, and traditions codified in old laws and practices we now recognize as oppressive and unjust.
Several consequences follow this dubious idea. First, the supreme law of the land, the Constitution, now must be reinterpreted to reflect this new knowledge unknown by the Founders. For example, ancient wisdom concerning the origins of crime and the appropriate justice due to malefactors is discarded, presumably exploded by advances in psychology and sociology, which locate crime in the social and economic environment, or in genetic predispositions, rather than in free will. The old distrust of unbridled sexuality and the fear of its destructive consequences are now dismissed as oppressive superstitions, for psychology has discovered that such controls create repression, whereas expressions of sexual variety without guilt or remorse lead to greater psychic health and fulfillment. Armed with this new knowledge, judges then tease out of the Constitution justifications for increasing criminal rights at the expense of law enforcement and social order, or for expanding the First Amendment to include pornography, or for outright inventing a “right to privacy” that protects ever greater and more various sexual license.
The second consequence is the empowerment of the elites who possess this advanced knowledge and the requisite techniques for implementing it, which necessarily reduces the autonomy and freedom of the mass of people who don’t. This development in turn transforms the traditional understanding of politics, which now is limited to solving problems.
Liberal columnist E.J. Dionne invoked this understanding of politics in his criticism of the Constitution reading: “Their [the Republicans’] rhetoric is nearly devoid of talk about solving practical problems — how to improve our healthcare, education and transportation systems, or how to create more middle-class jobs.” But politics is about something more important: reinforcing, asserting, and protecting, in the clash of competing goods and interests, the core values upon which both our freedom and the Constitutional order depend.
Politics as solving problems, moreover, leads to an ever-expanding government that threatens the freedom and self-reliance upon which democracy depends. Massive bureaucracies, armed with the coercive power of the state, are created to implement and manage this problem-solving, their power ratified and protected by judges who are not subject to political accountability. Consequently, the Constitutional mechanism that makes elected representatives, subject to electoral audit by the people, the authority for laws must now give way to unelected government bureaucracies and judges who find their authority not in the people, but in this alleged greater knowledge that justifies changing traditional social mores and customs. After all, most of the people lack this specialized knowledge, and so still depend on religion, custom, and traditional wisdom for their morality. To the progressive, letting the people determine the law according to these outmoded irrational prejudices would be like consulting a witch doctor instead of going to the hospital.
The American Constitutional order, however, has been defined by a radically different assumption — that rule by citizens, in whose consent resides the authority for government in the first place, will be more efficacious at securing justice and social order and protecting political freedom. Thus the independent initiative and self-reliance of the citizenry is preferred to the dictates of government officials in managing social, economic, and political affairs. Alexis de Tocqueville early on remarked on this defining characteristic of American democracy: “If the opinion that the [American] citizen entertains of himself is exaggerated, it is at least salutary; he unhesitatingly confides in his own powers, which appear to him to be all-sufficient.”
Moreover, de Tocqueville connected political self-reliance to the protection of freedom, anticipating the “democracy deficit” that attends the ceding of authority to a bureaucratic “nanny state”: “It profits me but little, after all, that a vigilant authority always protects the tranquility of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life.”
The Founding generation agreed, for they distrusted concentrated power and designed a political order that dispersed power and reserved it for the people. The people — not unelected technical elites allied to an unelected governmental bureaucracy empowered by unelected judges — are the ultimate authority whose rights come not from government but from “nature and nature’s God.”
Our Constitutional order is based on the knowledge that if rights are, like social-welfare entitlements, the gifts of government, then an ever-expanding government can take them away. For as Madison notes in Federalist 48, “power is of an encroaching nature,” and requires limits in order for the rights and freedom of the citizens to be safe from this expansionary appetite. George Washington, in his 1796 Farewell Address, likewise linked the necessity of “reciprocal checks in the exercise of political power,” and “dividing and distributing it into different depositories,” to the “love of power, and proneness to abuse it, which predominates in the human heart.”
That’s why the Constitution needs to be read aloud: to remind us of what the Constitution was created to do. Not solve our problems or create some fanciful utopia of social justice and economic equality, but protect the freedom and autonomy of the people and keep an overweening government from inhibiting them from solving problems on their own, all the while these unelected elites with their dubious “scientific” knowledge create even more problems. We should all rejoice any time our elected representatives remind us and themselves what the Constitution is all about: limiting government to protect our freedom.
©2011 Bruce S. Thornton