Do We Want to Live Under a Living Constitution? Really?
By David Glesne
President, The Virtues Campus
Might the Declaration of Independence & the U.S. Constitution shed light on a better way forward?
The word “constitution” is a big word. It comes from the Latin words “constitutio” and/or “constituere” which means, “to stand the thing firmly in place, together”, or “to establish/appoint”. From it, we get our words “statue”, as well as “statute” (i.e. a law that comes from that same place. Biblically, it refers to a law/decree made by a sovereign, or by God Himself). Therefore, a constitution is what we stand up together in public. Furthermore, in accordance with it, is how we will live. How is our daily living affected when there are large changes to the U.S. Constitution?
Colonial Period: Early 1600s – 1760s
The early Pilgrim/Puritan colonists did not bring with them an experience of government with a written constitution. England did not (and does not) have a written constitution. The English “constitution” was comprised of proclamations/laws that had grown up over time, accumulated declarations, and acts held in common.
However, the Pilgrims/Puritans came with a Christian mind, shaped by the Bible. That biblical worldview was the prism through which they organized themselves, both in their churches, and in their civic lives. It brought forth America’s first written constitution.
In 1638, the Rev. Thomas Hooker preached a sermon based on Deuteronomy 1:13, and Exodus 18:21. Two years before, he and other clergy had founded Connecticut, setting its government in place. In that sermon, Rev. Hooker explained the three Biblical principles that had guided the plan of that government. 1) The choice of public magistrates belongs to the people by God’s own allowance. 2) The privilege of election belongs to the people. 3) The people who have power to appoint officers/magistrates also have the power to set the bounds/limitations of the aforementioned appointees’ power. From Hooker’s teachings and leadership sprang America’s first written constitution. It was the direct antecedent to the federal Constitution.
Written documents of governance, however, had been the norm for every colony founded by the Protestant Christians. They knew that God had given Moses a fixed, written law to govern the nation of Israel. A deliberately “written down” law. This Mosaic Code was a higher law that men could live by (and appeal to) against the whims of ordinary men. These written documents of governance limited the power of government. They also gave citizens maximum protection against the decrees of selfish leaders. By the time of the Revolution, all the states had similarly structured written constitutions.
The Founders
The American Revolution was built on a kind of government that had never existed before in human history. The war with Britain had been one for freedom from the tyrannies of a king (and Parliament) that had trampled on their human rights. As citizens, they needed their freedom to live well. But, a free people require a free government. A free government, in turn, requires a particular form of government. One that requires an established way by which people can participate. A constitution is needed, so the making of laws is in the control of the governed. It needs a form of government that stays the same over time. If government becomes arbitrary, people will always be changing it, and then just a few will run it. The Constitution of 1787 is the governmental form The Founders designed.
Nevertheless, the Constitution cannot be understood outside of its relationship to the Declaration of Independence of 1776. The Declaration is rooted in universal, timeless principles. These principles are not particular to a time or place. Neither are they bound to the 18th century. They are not specific to America. The inalienable rights of life, liberty, and pursuit of happiness are for every place, and every people. It is from this foundational truth that all else radiates (Lincoln). The Declaration does not contemplate life without government.
Life in this world needs government because we are made to live under law. This is fundamental. We are going to live under law due to the nature of our being. However, we can live under “good law” or “bad law”. Good law is rooted in the “Laws of Nature and Nature’s God”. The Declaration gives a picture of the whole order of Nature, and proceeds from that whole order down to the particular actions necessary, in particular moments. At the end of the Declaration, the signers pledge their honor, lives, and very livelihood to each other – in the name of God.
In between the preface and the conclusion of the Declaration, are a list of particular grievances the signers had with King George III. The long list of grievances included such things as imposing taxes without representation, quartering troops, and dissolving parliaments/legislatures. Listed here in a negative way, are the laws the king had violated. This list in the middle of the Declaration becomes an outline of the chief elements of the Constitution, nine years later. These chief elements are embedded in, as well as surrounded by, the universal truths set forth in the Declaration.
The Framers had a permanent understanding of just government. It was a government that transcends time, which is universal. Because all men are created equal, all men have equal rights. A just government secures and protects these equal rights. The Declaration of Independence states that these equal, inalienable rights are lodged in the nature of things. This equality sets them up to be governed only by their consent. Furthermore, it gives rise to the structure of the Constitution, as well as representative government.
The Progressives: 1890s to mid-1960s
The Progressives were anti-Declaration of Independence/anti-Constitution. On July 4, 1911, Woodrow Wilson stated:
“If you want to understand the real Declaration of Independence, do not repeat the preface.”
They viewed the Declaration and Constitution as flawed, out of date, and obsolete. For them, it embodied ideas and structures for a pioneering, agrarian society. But, it was not adequate to deal with new contemporary sets of more complex social/economic problems.
The Progressives sought to get beyond the core ideas of the Constitution. Their central argument was that the progress made compels one to move beyond the principles of the American Founding, as well as the original structures of American government. Progress no longer needs such things as separation of powers or limited government. The evolution of human beings/society, combined with the idea of historical contingency (i.e., all things are relative depending upon new circumstances), means that government is becoming less and less a danger to the liberties of the governed. By enlarging the scope of government, it was thought that we now have the capacity to solve the great ills of human history.
It was from Germany that the Progressives got the language of the “Living Constitution”. The organic idea of the Constitution came from this time. Woodrow Wilson used the term in 1912, speaking of the Constitution:
“Government is not a machine but a living thing. It falls not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.” (“What is Progress?”)
Newton’s world was mechanistic, with permanent limits. Darwin’s world was dynamic, and ever changing. The Progressives believed that the Constitution, likewise, needed to be ever changing to meet changing social/economic needs.
Frank Goodnow, an influential Progressive, and colleague of Woodrow Wilson, maintained that rather than three functions of government (executive, legislative, judicial) there were in fact only two. There was politics, the expression of the will of the people. Then, there was administration, the execution of the will of the state. Politics tells us what we want to do; administration is the means of implementing it.
In shifting the role of the American Presidency, the Progressives saw politics as gaging and influencing public opinion. In essence, the President of the U.S. was stripped of his Article 2 executive functions, and became the chief legislator. He represented the will of the whole country. It became his function to articulate a vision of the country that captured the will of the people, and then to propose legislation to reach those objectives. The presidency took on a new role. The president as “chief legislator” replaced the Founders’ vision of the office, that of being chief executive (i.e. one who administers the laws, then transmits them, unimpaired, to his successor). Now, it was his job to put forth a vision, and convince a majority of the legislature to go along with it.
At the same time, you have this parallel set of institutions – the administration. Congress continues to enact laws. However, those laws differ from the kinds of laws enacted previously. Congress would reflect the will of the country in broad legislation, laying out goals for the administrative system to accomplish.
The aim of the Administrative State is to implement broad legislation by the rule of experts/administrative decree, rather than the rule of law. Technical and scientific elites, superior in education and insight in the progress of history, make the decisions for the rest of us. The new concept of rights under a “Living Constitution” demand the redistribution of resources, rather than securing the inalienable rights of all, as under the Founders’ Constitution.
The Post-60s Progressive Liberals
Post-60s Progressive Liberals embodied an even greater animosity/cynicism toward the Declaration and Constitution. The movement away from the consent of the governed, the security of natural human rights, and the rule of law, intensified.
Political life after 1965 starts to take on a decisively different character than before. Notably, there came a rejection of the progressive idea of “uplift” or a morally demanding government meant to improve the lives of citizens. Minorities, as well as other “disadvantaged/marginalized” people groups, were given government largesse, simply because of their “victim status”. Under the trumpet cry of “social justice”, the intrusion of government in citizens’ lives greatly expands. This is due to a vast increase in the number of victim groups requiring government assistance. Anti-life, bio-centric environmentalism damaged American prosperity, keeping her from attaining energy independence. The attack on the family greatly increased dependence on government, robbing millions of marriage, as well as family happiness. Both at home and abroad, social justice advocacy further undermines equal protection of the law, not to mention, the security of American rights.
The Administrative State of Post-60s Progressives utilizes numerous different ways of making policy, neither dictated nor allowed by the Constitution. The legislative option is still open. Nevertheless, there are many other ways utilized to make policy. In the budget process, there is reconciliation to sidestep the Senate filibuster. Regulatory agencies give oversight that influences policy. Congress transfers certain authority to the president within certain ranges. Labor unions exempt certain persons/groups. Administrative agencies make rules and interpret law, thereby changing what it means. There is the use of treaties to bypass the legislative process. Executive orders become more common. Beyond the constitutionally sanctioned methodology of the congressional legal process, very few (if any) of these policy making practices are actually authorized by the Constitution.
Unelected administrative agents make a majority of the rules in America today. These rules and regulations increasingly encroach into the most diminutive details of our daily lives. They determine what is in our health care plans, how much water you can have in your washing machine, the content of light bulbs, the composition of spouts on gas cans, even the angle and weight of stepladders. The bureaucratic reach into our lives progressively intrudes in individual liberties.
What has developed in America in the 20th and 21st centuries is a distinct, insular, social class. With each passing generation, it becomes further segregated from the people they purport to rule. They live together in coastal, urban, or university enclaves. Tastes and interests are nigh identical in their circles. Particular universities claim them as alumni. Marrying amongst themselves is the norm. In other words, they are the polar opposite of the people they purport to rule.
It is a ruling class that not only progressively segregates, but also tends to manifest increasingly greater contempt for the people they rule.
“A heartland where people cling to guns and religion” (Obama)
“A basket of deplorables” (Clinton)
The middle class was “like colonial administrators reporting on the natives” (CBS newscaster after the 2016 election)
The mindset is one of thinking they are the enlightened ones. Anyone who does not agree with them is inferior.
Bullets For Reflection:
The U.S. Constitution is the longest surviving Constitution in human history. It has endured every kind of crisis. There are three reasons: 1) Consent through representation, 2) Sovereignty is located in the people, not in the government, and 3) The sovereign (the people) are excluded from the ordinary operation of government.
If the Declaration of Independence is false now, it had to be false then. If true then, it has to be true now.
Founders of the Administrative State want to establish a non-hereditary aristocracy. They want a country where a technical/scientific elite, superior in education, as well as insight in the progress of history, make the decisions for the rest of us. What we have, in practice, is an oligarchy. It is government formed by the ruling elite. However, instead of ruling for the good of everybody, they rule for the good of themselves.
The Founders’ Declaration and Constitution were shaped by universal/timeless principles of a Biblical worldview. God’s revelation both in the Bible, and in nature, brought forth a human government that secured the inalienable rights of human beings. We must reverse all of the trends, both of old and new Progressivism, if we are to restore the Constitution of the Founders.