It is has long been glaringly evident that a large and vocal fraction of U.S. citizens rejects the Constitution’s blueprint for liberty. The blueprint delineates an edifice with these essential features: the horizontal and vertical separation of powers: a central government of limited and enumerated powers; coequal branches of that government, each possessing the ability to restrain the others; and the reservation to the States and the people of the powers not expressly granted to the central government.
More important than the edifice, perhaps, is the foundation upon which it was built: the Judeo-Christian tradition, generally, and the predominantly British roots of the signatories, in particular. As one blogger puts it, “underlying cultural assumptions are just as a important to the success of a republic as its political structures.”
Then, there are the Constitution’s underlying — and largely forgotten — purposes. Two of the main ones were keep the tenuous union of 1776 from flying apart because of sectional differences, and to defend the union militarily without depending on the whims of the various State legislatures.
The Framers’ brilliant scheme worked well for about 140 years, despite the depredations of the Progressive Era, which encompassed the imperial presidencies of Theodore Roosevelt and Woodrow Wilson. Then came the New Deal and it has since been all downhill for the Constitution.
The cultural underpinnings of the Constitution didn’t begin to rot 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 a beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule and the last six of the Ten Commandments.)
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 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 seemingly successful 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 (unless a national divorce can be arranged). 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.