In a commentary for Chronicles (unavailable online), Tom Fleming makes an argument about the increasing irrelevance of the Constitution that I find mostly irrefutable. According to his argument, which is clearly non-neocon in origin, it is futile to try to depend on a tradition of government that arose in radically different circumstances from our own. The kind of governing document that late 18th-century Americans created and accepted for themselves came out of communal arrangements and moral assumptions that no longer are dominant in our society. Now that these shaping conditions have been irreversibly changed, it is foolish to believe that present or future inhabitants of the U.S. will continue to accept the legal restraints and distributed sovereignty that mattered to 18th century Northern European Protestant merchants and small landowners.
The current residents of the same territory may agree for want of something better to being ruled by a “living” version of what the Founding Fathers devised. But what they are actually living under is not the regime established in 1787. One should not confuse contrived legality with what Aristotle understand to be a “way of life” associated with a particular form of government.
Least of all, should one take seriously the constitutional patriotism that the neoconservatives have been pushing for the last several eons. We all supposedly find national solidarity in the form of government that nurtures us as a “people,” a regime that is seen as the bodying forth of the work of our Founding Fathers. The catch here is that what this government has become looks less and less like what it started out being. We no longer have, as Richard points out, anything that faintly approximates a self-governing nation. And certainly our federal and state governments have nothing in common with the polis as described by Aristotle in the opening passages of The Politics, a regime and mode of life in which those who rule are the same as those who are ruled. We now have something that is supposedly better, a nation of open borders und bureaucratically enforced sensitivity represented by such natural leaders as President Obama, Chuck Schumer, Mitch McConnell, and Barney Frank.
Tom brings up his argument in connection with recent attempts by Tea Party partisans to give the appearance of being 18th-century colonists protesting English tyranny. All of this is inexpressibly ridiculous for more than one reason. George III was practicing benevolent neglect in the New World in comparison to the managerial despotism that our population now for the most part happily accepts. Moreover, no one who is even minimally culturally literate could mistake a 21st-century retiree speaking with a Midwestern twang for an 18th-century Bostonian. Equally relevant, doctrines like Nullification, which excited Western Pennsylvania and Kentucky farmers in the 1790s, mean nothing to the present conservative establishment, except as rhetorical filler that can be thrown at the Democrats now in power.
Does anyone with more than a room-temperature IQ think that FOX news is interested in reviving the states rights positions of Jefferson and Madison in the current debate between our two national parties? The GOP-neoconservative establishment was offended when Rand Paul made a bumbling attempt to call into question some provision of the 1964 Civil Rights Act. And the GOP senatorial nominee in Nevada had Rush Limbaugh and Sean Hannity campaigning against her after she suggested ways of cutting the Department of Education. After all, this federal department has provided loads of jobs for GOP as well as Democratic Party hacks.
What I can find to counter Tom Fleming’s argument is rather limited and would consist of the following: Although we’re holding an exceedingly poor hand and the momentum is mostly on the other side, we should use those resources that are available to us to keep our enemies from gaining more ground. Some arguments will be more helpful than other ones; and which ones will work will depend on the circumstances. For example, the appeal to nullification that Tom Woods makes in his most recent book is not likely to get us very far, given our two-party monopoly of the political conversation and given the erosion of any understanding of states as living communities.
The kind of state consciousness that existed when Jefferson and Madison raised the idea of nullification two hundred and fifteen years ago is a thing of the past. It does not relate to our less cohesive, perpetually mobile, and by now multiculturalized society. Such appeals will work even less once the GOP crawls back into power and predictably starts acting like the Democrats. Once that happens, Tom’s case will offend the Reps even more than the Dems.
But when telling arguments, including those in support of Nullification, can be marshaled to advance our interest in the short or middle term, we should never hold back. We should be every bit as opportunistic as we can in pursuing our goals. And we should stress the notion of legality in a society that continues to pay homage to that principle, however inconsistently. Calling attention to laws and precedents protecting our property and freedom from government attempts to de- and recode us behaviorally may be our best weapon against a derailed political order. In any case, doing something is better than simply giving up.
Another thought is that global democratic empires like the U.S. and the EU are beginning to suffer from the effects of overload. At this moment the EU’s human rights czars are trying to get Catholic countries, like Italy, to remove religious symbols, and in particular crucifixes, from public buildings. For years the EU has imposed PC guidelines on how its members should deal with invasions of Third World immigrants, gay and feminist lifestyles, and historical narratives that do not fit the imposed antifascist standards.
Similar disputes about control being placed on local and regional authorities have erupted in the U.S.; and we may hope that such dissension will continue to surface and grow even more severe. In these situations claims for more decentralized authority are likely to become more common; and even if these claims won’t bring about total system changes, they can assist us, for a time, in limiting bureaucratic and judicial overreach from the top.
Having made these defenses I should admit that I share Tom Fleming’s general pessimism about making the U.S. Constitution work again, as it once understood as mandating distributed authorities. Whether a constitution is written, as in the American case, or viewed as a series of unwritten precedents, as in the British case, there is no way to prevent its straying once the society that was willing to live by its restraints has vanished. Elena Kagan (who in the most recent polls enjoys greater popularity than disfavor by 2 percent) has become the Hamilton and Madison of our late modern age. The most we can do, in the face of our new judicial philosophers and the hostile media now in power, is to hold back their victory train. It may be too late to hope for a more formidable opposition, barring of course a major disaster. I always pray for one big enough to wreck the state that the neoconservatives wish us to be proud of but not devastating enough to end the chance for national recovery.