How the Ruling Class Subverts the Constitution

John Marini, in his article “Abandoning the Constitution,” compares two views on the United States Constitution and whether your rights as citizens are God given and unalienable or merely granted to you (or withheld) by an unelected and therefore unaccountable bureaucracy. Progressivism’s hand in the latter view is apparent. It intends to mold its clients into whatever History demands as determined by experts. In the former view, you determine your life’s course in partnership with your fellow citizens and God’s providence.

Marini uses Thomas Paine‘s writings as representative of a majority of the founders’ views. Paine wrote in his book The Rights of Man,

A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the [creation] of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government.

[A constitution] is the body of elements, to which you can refer, and quote article by article; and 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, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and in [summary], everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound.

A constitution, therefore, is to a government what the laws made afterwards by that government are to a [judiciary court]. The [judiciary court] does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.

It is on this basis, therefore, that the Declaration of Independence says, 

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.

And the U.S. Constitution says,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.

Marini, summarizing Paine, says, “[These are not binding agreements] of government with the people. It is the people who assign government its role, which is the protection of [the people’s] individual rights; when it fails to do so, it must be altered or abolished…It is the people who established a constitution. It was the Constitution, or the [binding agreement] of the people, which 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).”

Alternatively, and in keeping with Watson’s five principles of progressivism:

There are no fixed or eternal principles that govern,

The state and its component parts are organic [and] involved in a struggle for never-ending growth,

Democratic openness and experimentalism…are the fertilizer of the organic state,

The state and its components exist only in History,

Some individuals stand outside this process…an elite class, possessed of intelligence as a method,

Franklin Delano Roosevelt, in his September 1932 “Commonwealth Club Address,” portrayed the U.S. Constitution as a ‘living’ document with no permanent principles of governance and exchanged the sovereignty of the people for that of the government. He wrote:

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 re-definition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.

This subtle sleight of hand was not well received at the time, but never-the-less discloses the illogic foisted upon the American people. Roosevelt proclaims government sovereignty over that of the people and puts government, and its agents, in charge of the people’s economic and societal wellbeing without limits. Roosevelt insisted:

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.

Marini rejoinders Roosevelt thusly,

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.

Roosevelt’s progressive “bargain” does away with God’s provision of the people’s rights and replaces it with the administrative state as the source and defender of their rights.

After illuminating the bifurcation between conservative and progressive understandings of government as represented by Paine’s and Roosevelt’s writings, respectively, Marini goes deeper. He says the progressive view and its embodiment, the administrative state, prevail in America’s governance.

Progressivism does not subject itself to natural or rational limits nor is it understood in terms of immutable truths as the foundation of rights and happiness. An evolving concept of freedom establishes the intellectual and moral foundation of each historical epoch. Society’s problem becomes reconciliation of conflicting individuals’ wills in all life’s activities to achieve equality of freedom of will.

In this regime, society’s principles are knowable through empirical measurement and analysis. This is known as positivist social science. It discovers epochal principles which are encoded in evolving law. The government is constituted in these mutable laws.

Harry V. Jaffa examined this regime in “Judicial Conscience and Natural Rights: A Reply to Professor Ledewitz” 11 SEATTLE U. L. REV. 219 (1988),

For what is most important about left- and right-wing jurisprudence today is not that they are of the right or of the left, but that they are “result oriented.” Their so-called principles are not in their premises, but in their conclusions.

They differ in the particulars of their “value judgments,” but not in the subjectivity of that which they propose as the ground of constitutional law. Calling their subjective preferences “traditional morality” [or original intent] on the one hand, or “human dignity” on the other, does not make their preferences any more than “value judgments,” or less subjective. If the basis of law is believed to be subjective, however, then the basis of law is believed to be will, not reason.

The goal or perfection of the law, according to the whole tradition of western civilization, is that it should be, in Aristotle’s words, “reason unaffected by desire.” This is what law means according to the natural rights and natural law teaching of the Declaration of Independence. But law that rests upon nothing but “value judgments” is desire unaffected by reason.

Roscoe Pound, who became Harvard Law School dean in 1916, insisted that “the science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society.”

To Jaffa and Pound, Marini says,

In denying the authority of reason, law itself, in the service of will, came to be understood in terms of social reconstruction. When coupled with the method of positive science, the State and its government provide the possibility of the ongoing transformation of society and man.

Social sciences and positivist law replaced theology and reason as the foundation for expertise to carry out the will of the people. Marini concludes, “But for this to work, the people and their representatives would have to give up their reason so as to enable the social scientists to carry out their will. In short, they must give up the right to rule themselves.”

The administrative state consolidated itself after Lyndon Johnson’s Great Society. The congress gave up legislation born of deliberation for oversight of the executive branch administrative agencies it creates. The Judiciary then determines policy resulting from executive branch agency controversies. The people no longer find representation within the unelected administrative bureaucracy.

As Charles Kesler wrote in the Claremont Review of Books (“The Tea Party Spirit,” Winter 2009/10):

When our founders thought about law, they often thought along the lines of John Locke, who described law as a community’s “settled standing rules, indifferent, and the same to all parties,” emphasizing that to be legitimate a statute must be “received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies” between citizens.

Speaking of the rules that the administrative state encrusts upon modern congressional directives, Kesler says,

They operate not by setting up fences to protect each man’s liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case.

Discussing the ramifications, Kesler says,

Faster than one might think, a government of equal laws turns into a regime of arbitrary privilege. A “privilege” is literally a private law. When law ceases to be a common “standard of right and wrong” and a “common measure to decide all controversies,” then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.

Thus, Kesler reveals the sordid underbody of progressive administration.

Summing up, the administrative state exercises the science of law, i.e., “value judgments” or desire unaffected by reason, to social engineer the populace. The people must give up their reason to enable social scientists to carry out their will. That is, they must give up the right to rule themselves. Freedom itself ceases to be a right and becomes a gift, the fruit of a corrupt bargain, because only those who are close to and/or connected with the ruling class have special privileges.

To these things, Marini says,

In these ways, [the administrative state] subverts the aspiration for the fundamental ideal of government, that which makes human community possible, the desire for justice. As James Madison noted, “Justice is the [goal] of government. It is the [goal] of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” When justice ceases to be the [goal] of government, the natural rights guaranteed by the Constitution, and liberty itself, become ever more precarious.

Nonetheless, all is not well within the administrative state. It seems that all modern bureaucratic governments are faced with the paradox of being less able to govern, the more completely they try to administer the social and economic details of life in society.

Justice, in its broadest sense, is the principle that people receive that which they deserve.

Myron Magnet, in his recent Claremont Review of Books review of Amity Shlaes Great Society: A New History, titled “Poverty Won,” says:

As Amity Shlaes shows in her cautionary Great Society: A New History, those trillions [of dollars expended by the 1964 War on Poverty] only made matters worse. As the clamor swells to compound LBJ’s mistake, Shlaes provides a sobering postmortem, dissecting how and why, when government presumes to reshape society, the result is likely to be gory.

This is the regime we are living in now. It seems that the progressives wish to level American society via, among other means, mostly peaceful protests (and the violence that is implied by this euphemism.) Do not let them. Vote for your children’s liberty and self-governance. Vote early if you can reliably.

Which America Do You Choose? | The Heritage Foundation, October 12, 2020, YouTube, The Heritage Foundation

The Historical Origins Behind the Subversion of the Constitution

In his Claremont Review of Books article, “The Left Side of History,” Allen C. Guelzo reviews Bradley Watson‘s book Progressivism: The Strange History of a Radical Idea. According to Guelzo, “Watson has crafted, not so much a historical genealogy of Progressivism, as its historiography .” However, what I found interesting was Guelzo’s description of the descent of American Thought from colonial idealism into post-civil war despair and twentieth century destruction.

Guelzo opens his review with the following passage,

Progressivism, in its original 19th-century form, was the offspring of pessimism. Part of that pessimism was a revulsion at what the Civil War had done and, more to the point, failed to do. It had taken an America whose driving intellectual forces were enthusiastically religious, artistically naïve, and absolute in their moral self-confidence, and plunged it into a four-year bloodbath led by incompetent generals, pockmarked by genocidal massacres (as at Fort Pillow and the Crater), and frothing with stupidity, greed, and fraud.

Overall, approximately one out of every ten white American males of military age in 1860 was dead by 1865 from some war-related cause. Even after the war, the federal government would be paying pensions to nearly one million Union veterans or their dependents, at a total cost (by 1900) of almost 22% of all federal expenditures.

And for what? Emancipation, yes. Union, yes. But the promise that emancipation would produce an egalitarian, biracial society was cruelly smashed by the failures of Reconstruction, and reunion only resulted by the 1880s in a revival of the same old alliance of corrupt Northern Democrats and white-hooded Southern Democrats that had brought the country to the brink of war in the first place.

…The sheer volume of destruction, human and economic, unhinged something in the American mind

Into this ‘slough of despond’ fell Charles Darwin’s book, On the Origin of Species by Means of Natural Selection, or the Preservation of Favored Races in the Struggle for Life. Wikipedia notes that Darwin did not mean, by the term ‘races,’ our narrow definition; but, instead, species groups such as honeybee nests and human tribes. The book was first released in Great Britain in 1859 and grew in influence in America.

Guelzo says of Darwin’s Origin of Species, “…The book portrayed physical existence itself as a pointless, directionless evolution, by means of “natural selection,” from nothing in particular to nothing in particular. …In the new Darwinian universe, ideas were biological mechanisms. They did not convey truth; they were tools to assist one’s adaptation to the relentless organic processes of natural selection.”

This nihilistic idea struck a chord with late nineteenth century philosophers. Charles S. Peirce wrote in his 1878 article, “How to Make Our Ideas Clear”,

And what, then, is belief? It is the demi-cadence which closes a musical phrase in the symphony of our intellectual life. We have seen that it has just three properties: First, it is something that we are aware of; second, it appeases the irritation of doubt; and, third, it involves the establishment in our nature of a rule of action, or, say for short, a habit. As it appeases the irritation of doubt, which is the motive for thinking, thought relaxes, and comes to rest for a moment when belief is reached.

But, since belief is a rule for action, the application of which involves further doubt and further thought, at the same time that it is a stopping-place, it is also a new starting-place for thought. That is why I have permitted myself to call it thought at rest, although thought is essentially an action. The final upshot of thinking is the exercise of volition, and of this thought no longer forms a part; but belief is only a stadium of mental action, an effect upon our nature due to thought, which will influence future thinking.

And, as Guelzo says, William James defined pragmatism with greater clarity in his book Pragmatism: A New Name for Some Old Ways of Thinking, 1907,

Pragmatism, on the other hand, asks its usual question. “Grant an idea or belief to be true,” it says, “what concrete difference will its being true make in anyone’s actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth’s cash-value in experiential terms?”

The moment pragmatism asks this question, it sees the answer: True ideas are those that we can assimilate, validate, corroborate, and verify. False ideas are those that we cannot. That is the practical difference it makes to us to have true ideas; that, therefore, is the meaning of truth, for it is all that truth is known-as.

This thesis is what I have to defend. The truth of an idea is not a stagnant property inherent in it. Truth happens to an idea. It becomes true, is made true by events. Its verity is in fact an event, a process: the process namely of its verifying itself, its veri-fication. Its validity is the process of its validation.

As Isaiah Berlin has said,

…Philosophical concepts nurtured in the stillness of a professor’s study could destroy a civilization… Our philosophers seem oddly unaware of these devastating effects of their activities.

Guelzo says that the descent from disillusionment with Natural Law to Evolution’s purposelessness resulting in a philosophy of “what works,” pointed “toward the creation of a new American society, a society which had the chastened flexibility of a Darwinian organism rather than the rigidity of abstract truths. Creating that society was what Progressivism promised to do.”

Guelzo notes that this same influence pervaded the institution of professional historians which developed “virtually parallel to pragmatism and Progressivism.” Guelzo, quoting Watson says, “[P]rofessional American historians were, in various ways, thoroughly progressive from the get-go.” Guelzo says that this was “largely because the historians shared the infatuation with “[t]he ever-shifting interactions between organism and environment” that characterized Darwin’s evolution—and that became so vital a component of Progressive politics.”

Therefore, Guelzo says that Samuel Johnson’s assessment (Rambler 156, 14 September 1751) no longer applies, “Every government…is perpetually degenerating towards corruption, from which it must be rescued at certain periods by the resuscitation of its first principles, and the re-establishment of its original constitution.”

Progressivism saw (and sees) History as an evolving organism served by humans. Even the Founders’ Constitution, based on Natural Law, was merely an emanation of History’s development, no more valid or foundational as any other historical gyre.

In 1893, progressive historian Frederick Jackson Turner postulated that the process of the moving frontier line and its cleansing effect upon the pioneers resulted in American democracy, egalitarianism, rejection of high culture, and violence. As Turner put it, “American democracy was born of no theorist’s dream; it was not carried in the Susan Constant to Virginia, nor in the Mayflower to Plymouth. It came out of the American forest, and it gained new strength each time it touched a new frontier.” Ironically, Turner’s frontier thesis is cited in arguments for American Exceptionalism.

Progressive historian Charles A. Beard, in his 1913 book, An Economic Interpretation of the Constitution of the United States contends that the Constitution of the United States was formulated to preserve the Founding Fathers’ financial interests. Beard asserted that the Constitution was written by a unified elite to protect its personal property, loans to the nascent government, and economic status. The authors of The Federalist Papers merely represented this interest group.

However, Beard denied he directly proposed this thesis in his 1935 Introduction. He claimed to have only hinted at it, “The only point considered here is: Did they [the Constitutional Convention members] represent distinct groups whose economic interests they understood and felt in concrete, definite form through their own personal experience with identical property rights, or were they working merely under the guidance of abstract principles of political science?” His text then examines the financial interests of numerous convention attendees.

Guelzo, quoting Watson, says, “[t]he progressive idea, simply put, is that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution that facilitates the authority of experts dedicated to the expansion of the public sphere and political control, especially at the national level.”

Watson defines five principles of Progressivism:

There are no fixed or eternal principles that govern.

The state and its component parts are organic [and] involved in a struggle for never-ending growth.

Democratic openness and experimentalism…are the fertilizer of the organic state.

The state and its components exist only in History.

Some individuals stand outside this process…an elite class, possessed of intelligence as a method.

The elite class leads the masses into promised utopias through any means necessary, exempting themselves from strictures which lead to hardship or any responsibility for failure.

Watson says that the American constitutional order stands on “permanent principles of political right derivable from a proper understanding of [fallen] human nature,” whereas, “Rejecting any account of an unchangeable human nature, the Progressives went deep to attack the heart of American constitutionalism.”

Finally, Guelzo urges us to understand the forces that prevailed over the post-Civil War American society,

Before the Civil War, only about 7% of American manufacturing was organized in corporations; by 1900, corporations accounted for 69% of all American manufacturing. Between 1897 and 1905 alone, 5,300 small-scale firms were consolidated and reorganized into just 318 corporations, and 26 super-corporations (or “trusts”) controlled 80% of major American industrial output.

Americans were facing an economy organized on very different principles than the one the founders knew.

The founders had dreaded power as the great threat to liberty, but they had conceived of political power as the form it was most likely to take. After 1865, it was economic power which emerged as the greatest challenge to liberty, and if one can say anything in defense of the Progressives, it should be that they saw this shift all too clearly, even if they mistook the best means for dealing with it.

…On the other hand, it would be less than candid not to admit that historians have been too much the ideological allies of Progressivism to permit themselves to see its rejection of natural rights constitutionalism as Progressivism’s master flaw.

Progressivism has evolved over the years; yet its allegiance to History and ascent to human perfectibility apart from God’s unmerited favor remains. In this uncertain period, Steven F. Haywood, in his editorial for City Journal, “Pouring on the Gasoline,” admonishes,

But that’s where we are right now, with large numbers of Americans utterly alienated from many of their fellow citizens. The causes and responsibility for this can be debated another day. [To this situation,] Harry Jaffa [wrote]: “In a republic, the sobriety of the citizens replaces the force of authority as the principal source of order.” If we do have a train-wreck election, it will be the sobriety of Americans that saves us. 

Let us therefore be self-controlled and sober-minded.

“Our Embattled Constitution” – Harry V. Jaffa, February 25, 2015, YouTube, Hillsdale College