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.
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.
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.
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