Timeless Constitution

Saturday was the 229th anniversary of our US Constitution. That’s remarkable, considering written constitutions in countries around the world have lasted an average of 17 years, since 1789. 

Several days ago I listed to an Uncommon Knowledge interview titled “Is the Constitution Out of Date?” Since the answer, to me, is obviously NO, I expected maybe something valuable I could share for Constitution Day. While Uncommon Knowledge offers a variety of opinions, they’re usually in the range we think of as conservative. The interview was with political scientist Terry Moe, author of the recent book Relic: How Our Constitution Undermines Effective Government—and Why We Need a More Powerful Presidency. He has been a fellow at the Hoover Institute. So I was surprised when his premise was that the Constitution is outdated. He made claims that we usually hear only from the opposition.

One of his main complaints was that the executive branch doesn’t have enough power. After nearly eight years of Obama’s illegal executive orders, that seems wildly wrongheaded. He suggests that the president should be able to put forth his agenda items, and get them fast tracked through the legislature. The legislators could still vote these things down, but they’d be required to put them up for a vote, without amendment, within a certain length of time.

If that was to be the only change, I might not put it in the southern hemisphere of statist tyranny. But he also asserts that because we are a democracy, we ought to make it easier to enact the will of the majority.

I was waiting for Peter Robinson, the interviewer, to say, “But we’re not a democracy.” I guess he was just trying to allow the interviewee to get his point across, but it got me talking back at the screen.

We are not a democracy—i.e., government by majority rule—we are a constitutional republic. That means we have a written law limiting government, to prevent the majority from imposing injustices on the minority. For example, an evil majority might choose to enslave a particular minority group; in a democracy, the majority vote would rule.

Our Constitution purposely limits government, and purposely lists some of our God-given rights that government must not infringe upon, and adds that any powers not enumerated as given to the federal government are maintained by the states or the individual citizens. That is on purpose.

Moe thinks the Constitution is just a relic of a formerly simpler society, when America was smaller and more agrarian. That those simpleton founders couldn’t possibly have prepared for our complex, technological society.

I’ve been reviewing Hillsdale College’s Western Heritage 101 course (free online), and listened to lecture 4 this week, on Socrates and Plato—which were read and understood by our founders. All of them. The founders heeded the Greeks’ warnings about the despotism of democracy.

In the follow-up Q&A session, lecturer Terrence Moore gives an example of how democracy leans despotic (starting at about 13:40):

You might say, “Well, we’ve gotten beyond that. We’re America. We can handle this.” Today is the day after the election. It’s Wednesday, and I’m reading an editorial that comes straight out of The Washington Times. Here is what it says.

“The most disturbing issue of the election was how President Obama managed to win re-election in places like Ohio and Pennsylvania and Michigan by talking about the highly unpopular bailout of General Motors, by taking billions of dollars in hard-earned money from taxpayers during a deep recession and giving it to a couple of huge companies, Obama managed to buy the votes he needed to eke out a re-election.”

“Taxpayers remain on the hook to the tune of $25 billion.”

That’s just the reporting, but here is what happened behind it, according to this author.

“This is the Achilles heel of a democracy. Politicians simply tax those who do not support them and give the money to those who do or give the money to those they would like to have support them. It is the end of the line. Game over.”

That’s a pretty bleak after-election sentiment, but it would not have surprised Plato, and it would not have surprised the Founding Fathers. So, among other things, the recent election should cause us to think very hard constitutionally about what kind of framework of government the Founding Fathers set up so that elections can’t be bought with other people’s money.

If it’s that kind of democracy, which is the kind that Plato describes, we’re in trouble.

So, we aren’t—or shouldn’t be—a democracy. Our Founding Fathers knew better. They purposely set up a government to avoid tyranny of the majority, which is easily swayed by lies, money, or enticements.

The progressive arguments are only worth considering if human nature has changed since our founding—or since Plato. Progressives seem to have a bias against anything that isn’t contemporary, which is a closed-mindedness that pretty well disproves their assertions.

Progressive arguments against the Constitution aren’t new; they’ve been around at least since the late 1800s to early 1900s, from the onset of the “progressive” movement. In other words, opposition to the Constitution has been claiming it is outmoded for about as long as the Constitution existed without that argument against it.

It is probably true that opposition to freedom has been claiming the Constitution was somehow inadequate since day 1.

Yet, unlike most of the constitutions in the world, ours continues. And to those who appreciate the skilled precision with which it was written, it is as timely today as it was in 1787.

As I was considering how to refute the claims of Terry Moe, the next morning I came across a piece with the title “No, the ConstitutionIsn’t Outdated,” by John York for the Daily Signal. My first thought was that York must be refuting the same interview I had seen. He isn’t; he just happens to refute Moe’s claims, because they are the standard attempts to denigrate our Constitution by those who would like us to have less freedom.

York lays out the basic argument and refutes it:

As Richard Stengel, former president and CEO of the National Constitution Center, wrote in a splashy 2011 article in Time Magazine:

Here are a few things the Framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

Stengel’s list is instructive as it gives the reader a sense of the changes liberals think our Constitution does not adequately account for. Take for instance: “airplanes, the atom, the internal combustion engine, and antibiotics.” These all represent technological or scientific innovations unknown to the Founders that, purportedly, have some relevance to structuring a government.

Some scientific and technological changes do require that we think carefully about the Founders’ intent when they were writing the Constitution. For instance, new technologies allow police to peer into homes without physically entering them, intercept an email or a text message, or track your car from their computer back at the precinct. Whether these things constitute a search or seizure of citizens’ “houses, papers, and effects” under the Fourth Amendment is an important question the Founders do not answer for us directly.

But by no means are we merely left to guess how the Constitution speaks to these modern conditions. Through the Founders’ own writings contained in the Federalist Papers, notes on the proceedings of the Constitutional Convention and correspondence, thoughtful judges and legal scholars get a clear sense of the spirit behind the words on the page.

Given the Founders’ concern that government would use warrantless searches to harass and condemn political dissidents, it is hard to imagine James Madison or Alexander Hamilton would approve of warrantless wiretaps, drone flyovers, and email dragnets conducted by federal agencies.

Much of the rest of York’s piece deals with social/cultural issues. And he reassures on that front as well:

While the Constitution was not meant to steer the development of American culture in every sense, the Founders did think a free society demanded certain qualities of character among the citizenry: habits of self-governance, respect for the rights of others, and reverence for the law. But within those brackets is allowed some latitude for culture to develop organically and locally without the heavy hand of government at the helm.

If he were using Spherical Model terms, he might have said that the culturally civilized ability to rule ourselves is a necessary prerequisite to freedom and prosperity. It’s close to what James Madison meant in Federalist 51, which York also quotes:

From Federalist 51, image from here

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

I agree with York’s final conclusion, that

human nature is still as fallible as it was 229 years ago. Thankfully, our nation was blessed with a generation of men who had insight to perceive the essential character of man vis-à-vis government and the wisdom to craft institutions rooted in those unchanging realities.

I thank God for the miracle of our Constitution, and the men who were prepared to write it. I pray that we can honor God by appreciating and restoring that miracle.