Archives for October 2018

Originally published in Constituting America, June 21, 2016.

Republished with permission.

 

After defeating the challenge to natural-rights based commercial republicanism in the 1860—first at the polls, then on the battlefields—Americans faced the next challenge to their regime and its principles when Progressivism gathered adherents in the late nineteenth and early twentieth centuries. This turned out to be much less deadly, but far subtler and more effective than anything the Southern plantation oligarchy had devised. Progressives first won positions in the universities, where they educated the new generation of American lawyers, scientists, clergymen, and writers in a moral and political doctrine that rejected natural rights in favor of historical rights. In this historicist view, all of nature, including human nature, continually evolves; nature is part of ever-changing history. Human beings think of new rights for themselves, and invent new governmental powers to secure them. Because there are no permanent standards by which anyone can judge these claims, the project has no real limits.

Such men as Woodrow Wilson and Franklin Roosevelt intended a vast expansion of governmental powers in order to enforce an ever-expanding menu of rights suggested by never-ending social and political progress. Under the ‘progressive’ dispensation, presidents become not statesmen, heading the executive branch of the federal government, but leaders of public opinion, pointing us to a brighter tomorrow. To supplement this opinion leadership, Progressivism posits a need for an administrative state —a set of bureaucracies staffed by tenured professional experts who will gather executive, legislative, and judicial powers in their hands in order to implement policies enacted by the elected opinion leaders. In effect, this means that the United States has instituted a new form of aristocracy—based not on the martial and civic virtues admired and sometimes embodied by the old aristocracies of Europe, but on purportedly scientific knowledge of how to effect change in human societies.

To make this project seem constitutional, Progressives needed a new theory of constitutional interpretation. Their own evolutionary or developmental theory of human rights suggested one: the “elastic” Constitution (as Wilson called it) or, more famously, the “living” Constitution—a phrase deployed by scholars and judges for at least the past half-century. Under this dispensation, Supreme Court judges are entitled to go beyond the letter of constitutional law, beyond the intentions of the Framers, and make up new civil rights or bless new governmental powers when those rights and powers comport with what the judges deem to be in accord with historical progress.

No civil war resulted from this challenge because the Progressives didn’t need one and never did anything so rash as to bring one upon themselves. They only needed opportune circumstances in which their well-defined doctrines would seem attractive, first in the tumultuous early years of the movement, when labor strife crested, then in the Great Depression, then in the Second World War, and finally in an ever-expanding list of civil rights—rights conceived as the results of historical change rather than defenses of permanent natural rights. Constitutional law responded to whatever social changes seemed to be ‘in the air.’

For more than a century, our presidential elections have often seen disputes deriving from the tension between the old Constitution—which after all has not been entirely jettisoned—and the new, living, evolving constitution, a constitution written not so much in formal amendments as in an ever more complex array of Supreme Court decisions, administrative regulations, executive orders, and treaties. Both political parties have had their hand in this, although the Democrats have proven the most full-throated Progressives, especially (to take the post-World War II presidencies) in the Johnson and Obama administrations.

In the 2016 election, once again the Constitution is at issue, although in some ways less clearly than in 1912, 1932, or 1964. The one candidate who based his campaign squarely on the hope of restoring the original understanding of American constitutionalism, Senator Ted Cruz of Arizona, has now dropped out of the running. This leaves us with the two likely nominees, former New York Senator and Secretary of State Hillary Clinton and New York real estate developer Donald Trump. How do they understand the United States Constitution?

Their campaign websites reveal a lot about their view–in some ways more than they may have intended.

Secretary Clinton’s website features “112 reasons (and counting!) Hillary Clinton should be our next president.” By the time you read this, I am sure many more will have been conceived. One of them is that the next president will likely nominate several Supreme Court justices—it being clear to Secretary Clinton that she will make wiser choices than her opponent. Overall, however, it must be said that the Constitution does not loom large on the list. Solar panels, background checks for gun purchases, student loans, health care, removal of “sentence disparity between crack and powder cocaine” all get a shout-out. What is more, “She has made LGBT rights a priority of U. S. foreign policy.” And perhaps above all, Secretary Clinton is “a progressive who gets things done”—that last phrase a slap at her Democratic primary opponent, Senator Sanders, a socialist whose record of legislative achievement has not furnished him with any major talking points. It is fair, then, to say that Secretary Clinton self-identifies with Progressivism and therefore with the notion of an “elastic” or “living” Constitution. Her list of legislative proposals never says, but merely assumes, that they are constitutional. In the immortal words of her Progressive ally in the House of Representatives, Speaker of the House Nancy Pelosi, upon being asked if nationalized health insurance is constitutional, “Are you kidding?” Don’t we all know that we have moved from Chief Justice John Marshall’s interpretive principle, that judges “say what the law is,” to the new principle, that judges (and professional administrators, and presidents issuing executive orders) tell us what the law is?

In 2013 Secretary Clinton became the proud recipient of the Liberty Medal, awarded annually be the National Constitution Center in Philadelphia. The Center selected her “in recognition of her lifelong career in public service and her ongoing advocacy effort on behalf of women and girls around the glove.” That is, the Constitution Center honored her for nothing specifically constitutional. Nor is the award intended anyone necessarily American. Last year, it went to the Dalai Lama—an estimable man, but a Tibetan or, if you prefer, ‘a citizen of the world.’ Judging from this pattern, globalism trumps both nationhood and constitutionalism at the National Constitution Center.

Speaking of trumping, the website of the presumptive Republican nominee turns out to be an interestingly mixed bag, as far as the Constitution is concerned. First of all, it actually mentions the Constitution—at least, one part of it, the Second Amendment. And it doesn’t merely assert the right to bear arms. It goes further, saying where the right does not come from: “The Constitution doesn’t create that right—it ensures that the government can’t take it away.” The right to bear arms “is about self-defense, pure and simple.” If we already have a right to defend ourselves, prior to our Constitution-writing—and in fact we were defending ourselves when we declared our independence from the British Empire, eleven years before the Philadelphia convention—then where does the right come from? Mr. Trump’s website doesn’t say, but at least it doesn’t contradict the fundamental principles of the Founders, that rights exist by nature.

Similarly, the website is consistent with, without clearly enunciating, the idea that the American Union rests on a social contract among its members. The sentence “A nation without borders is not a nation” implies that human beings come together to form nations, and not that nations arise from ‘blood and soil’—a European notion that has caused no end of trouble in the past two centuries The call to “end birthright citizenship” similarly suggests a contractual rather than a biological bond, and that the widespread interpretation of the Fourteenth Amendment as establishing birthright citizenship is mistaken. This means that Mr. Trump disagrees with the Supreme Court’s 1898 ruling in U. S. v. Wong Kim Ark, the source of the birthright-citizenship claim.

Extending the search beyond the website itself, we learn that Trump is no Progressive when it comes to his understanding of the Constitution itself. In a televised interview, Anderson Cooper asked, “Do you see the Constitution as a living, breathing document, or do you see it as something set in stone a long time ago?” A college professor might object that the dichotomy is false and prejudicially stated. The Constitution isn’t “set in stone”; it has been amended 27 times. And the phrase “a long time ago” implies that it is somehow irrelevant to this day, outmoded. But true to his tendency to go ahead and gulp down his interrogator’s bait, then dare him or her to reel him in, Trump went right ahead and replied, “I see the Constitution as set in stone.” A prominent member of the construction industry, he may not mind the idea of a firm foundation.

His critics are not so sure he sees the Constitution as set in stone. For example, when challenged on his stated intention to expand the libel laws to protect public figures such as himself, he cited not the U. S. Constitution but English common law, which does indeed put the burden of proof of libel on the accuser and not the accused. The obvious problem (as a patriot like Trump should see) is that this isn’t England. And when Mr. Trump threatened Senator Cruz with legal action for one of his campaign charges, Cruz ended the discussion by saying he would welcome the opportunity to depose Trump in a courtroom. Other critics have remarked Mr. Trump’s apparent enthusiasm for a rather expansive definition of eminent domain, one that seems to include takings of property not merely for clear-cut public goods—a roadway, for example—but for the benefit of private developers (such as himself) whose acquisitions would lead to increased revenues for the municipality in which the development was located and therefore (so his argument goes) serve the public good. That strikes many observers as a bit of a stretch.

Probably the most intense unease about Mr. Trump’s constitutional bona fides arises from the general tone of his campaign. Entertaining and unforgettable it has been. But even his most devoted supporters find it hard to claim that he has elevated the level of American political discourse. A candidate who takes pride in refusing to keep a civil tongue in his head raises pardonable worries about his respect for the framework of civil society itself. The rule of law, including constitutional law, requires an underlying tone of law-abidingness and civility if we are to sustain it.

On this 240th anniversary of our Declaration of Independence, a year away from the 220th anniversary of the Constitutional Convention, we see a presidential election between two candidates who give constitutionally-minded Americans cause for worry. The Democratic Party candidate gives every sign of continuing the longstanding Progressive effort to replace American moral and political principles, in part by making the constitution malleable. The Republican Party candidate articulates a reasonably sound basic understanding of the nature of American constitutionalism, but also veers off that foundation in ways that do not build confidence in what might be called his constitutional temper.

In this, Americans have reaped what academia has sown. Whether we consider the original Progressivism of Wilson’s generation—with its elastic or living constitution—or the state-building, centralizing New-Deal Progressivism of FDR and LBJ, or the denigration of civility seen in the New-Left politics that has ensconced itself in academia and in the realms of entertainment and the news media in the past half-century, American educators have poorly served their fellow citizens. This underlying moral and intellectual decay cannot be remedied by an election.

Originally published in Constituting America, May 2016.
Republished with permission.

 

The primary elections of 2016 have invited comparisons to political factions in American politics that haven’t appeared in such clear focus for nearly seventy years. Although the Republican Party of 1948 had papered over its divisions between moderate-to-liberal business interests on the East Coast—represented by New York Governor Thomas Dewey—and Middle-Western conservatives—represented by U. S. Senator Robert Taft and, behind him, Herbert Hoover—Democrats split bitterly into three groups. The mainstream of the party nominated President Harry Truman; the left wing (which included democratic socialists and some communists) ran Henry Wallace on the ticket of the Progressive Party; and the segregationist, southern Democrats ran South Carolina Governor Strom Thurmond on the ticket of the States’ Rights Democratic Party or “Dixiecrats.” In one of the most famous upsets in American political history, Truman overcame his party’s fracturing and defeated Dewey, although the Dixiecrats won the combined 38 electoral votes of Louisiana, Mississippi, Alabama, and South Carolina. The Progressives failed to win a single electoral vote.

Today, the inheritor of the Progressive—but really socialist—legacy of the Democratic Party, Senator Bernie Sanders of Vermont, might easily trace his ideological lineage to Wallace and, even more clearly, to Eugene V. Debs, who ran a surprisingly credible campaign on the Socialist Party ticket in 1912. Some observers have linked Donald Trump’s insurgent campaign in the Republican party to the Dixiecrats, but there the pieces don’t fit so neatly.

True enough, many disaffected southern Democrats eventually made their way into the Republican Party, beginning with the 1964 presidential campaign of Arizona Senator Barry Goldwater. In 1968, Richard Nixon fashioned his successful “Southern Strategy” to consolidate Goldwater’s gains. However, the real Dixiecrat of 1968 was Alabama Governor George Wallace, a man unrelated to Henry either by blood or ideas. Like Thurmond, Wallace was a segregationist Democrat who wanted nothing to do with the Party of Lincoln. Wallace made the political last stand of the Lost Cause of the old Confederacy, which had persisted in a sort of radioactive half-life in the decades after Lee’s surrender at Appomattox.

From its beginnings the Democratic Party had fought not just partisan battles but battles over the character of the American regime itself. Often these battles centered on the meaning of the United States Constitution. The party’s first presidential nominee, Thomas Jefferson, had accused the Federalist Party of monarchic sympathies, winning election in 1800 on a surge of democratic-republican sentiment. In the more recognizably modern election of 1828, Andrew Jackson defeated his fellow-Democrat, John Quincy Adams, on a platform excoriating ‘aristocratic’ financial interests. Meanwhile, John C. Calhoun was defending another and more insidious form of aristocracy, the way of life of southern plantation slaveholders, in explicit opposition to the principles of the Declaration of Independence. And of course the ever-worsening controversies leading up to the Civil War and Reconstruction centered on constitutional questions at the deepest level: not only the meaning of various clauses in the U. S. Constitution itself, not only the character of American federalism, but the basic question Americans had raised in the first place, namely, are all men really created equal with respect to their rights to life, liberty, and the pursuit of happiness?

The early Progressives of the Woodrow Wilson era had managed to avoid this issue and also to keep southern Democrats firmly within the Democratic Party. Wilson himself was a southern man, born in Virginia and raised in Augusta, Georgia. Like many Progressives, he took ‘race science’—the notion that human ‘races’ identifiable by skin color could be ranked hierarchically in terms of intellect and even moral sentiments—as cutting-edge science, that is, as a part of what it meant to be ‘progressive.’ But Progressives more fundamentally supposed that human nature itself was malleable, subject to evolutionary change, and this belief, coupled with their faith in democracy, in egalitarianism, reinforced by the research of anthropologists, began to turn the next generation of Progressives against racism. By the time of the New Deal, tensions between Progressives (now calling themselves ‘liberals’) and southern Democrats had begun to build.

Under the masterly political management of Franklin Roosevelt, the coalition of northern and southern Democrats nonetheless held firm, at least for the purpose of winning national elections. Southern segregationists could tolerate the complaints of northern liberals so long as the New Deal meant the Tennessee Valley Authority and other Depression-era public-spending programs in the South. But when FDR died, the Depression ended, and Harry Truman backed legislation enforcing civil rights for all Americans, many southern Democrats began to reassess their place in the coalition, even as their ancestors had reassessed their place in the Union. In July 1948 thirty-five southern Democrats walked out of the party convention in Constitution-proud Philadelphia, then met in Birmingham, Alabama to form a new party.

For decades since the Civil War, southern Democrats had claimed that the war had been fought not over slavery but over the right of the constituent states of the Union to govern themselves without interference from the federal government. This claim conveniently overlooked the actual content of the Southerners’ arguments (beginning with Calhoun), which had firmly linked states’ rights to the defense of the slaveholders’ way of life—their ‘domestic institutions,’ as the euphemism went. But a politically useful story may have stronger legs than an embarrassing truth, so the Dixiecrats had a ready-made tale to tell.

They told it in their platform, published at the convention of the States’ Rights Democratic Party held in August in Oklahoma City. Celebrating the United States Constitution as “the greatest charter of human liberty eve conceived by the mind of man,” the platform condemned what it called “the totalitarian, centralizing bureaucratic government” and “police nation” which “the platforms adopted by the Democratic and Republican Conventions” had “called for.” The delegates laid out the (red) meat of the document on its three central planks. First, “We stand for the segregation of the races and the racial integrity of each race” against “the elimination of segregation, the repeal of miscegenation statues, [and] control of private employment by Federal bureaucrats called for by the misnamed civil rights program.” Second, “We oppose and condemn the action of the Democratic Convention in sponsoring a civil rights program calling for the elimination of segregation, social equality by Federal fiat, regulations of private employment practices, voting, and local law enforcement.” Finally, Dixiecrats predicted, “the enforcement of such a program would be utterly destructive of the social, economic and political life of the Southern people, and of other localities in which there may be differences in race, creed or national origin in appreciable numbers.”

These claims proved to be overwrought. The eventual enactment and enforcement of laws outlawing legal segregation of races and of religious congregants in no way impeded the economic development of the American South, which was given a rather substantial boost by the proliferation of air-cooling machines in the same period. As for miscegenation, it was at least as prevalent under slavery itself, and it didn’t spell apocalypse once it was legalized, either.

It is hard to resist the observation that the Dixiecrats fought the wrong battle for the wrong reason. Centralized, bureaucratic government had indeed carried the day against the legitimate political rights of the states. But to use ‘states’ rights’ as an implausible cover story for the defense of racial domination—especially when Southerners had raised few if any objections to federal bureaucrats when they came bearing gifts in the form of infrastructure projects and public-health programs—did no service to the lost cause of federalism. It enabled advocates of bureaucratic centralization to claim that they were the true defenders of American principles, although they were no such thing.

In the year 2016, Mr. Trump’s campaign has had little if anything to do with the Dixiecrats. For starters, the Dixiecrats are dead—quite literally. The last of the important ones, Strom Thurmond, passed away more than a dozen years ago at the age of 101, after one of the longest careers in the United States Senate in the history of the Republic. Legal segregation is every bit as dead, and Trump shows not a speck of interest in reviving it. He seems rather more to be running against another dimension of Progressivism: the rule of the administrative state and its cadre of technocrats—the ‘aristocracy’ of our own day, itself in uneasy regulatory alliance with business-corporation oligarchs. One need not overlook Mr. Trump’s numerous peccadillos and eccentricities to see that this dimension of his campaign speaks to a real issue, in danger of being lost in his noise, and that of his opponents.

As for the American regime the Dixiecrats sought to alter, it has veered not toward the racial politics of segregationists but toward the racial politics of ‘diversity’—a catchword of the Left, not the Right. This too contradicts the Declaration of Independence, but in 1948 it was unheard.

Originally published in Constituting America, March 2016.
Republished with permission.

 

Americans remember Andrew Jackson’s victory over John Quincy Adams in 1828 as the General’s revenge for his narrow loss to Adams four years earlier, when no candidate received a majority in the Electoral College, the election devolved to Congress, and Henry Clay threw his support to the man most likely to endorse his “American System”—the network of public works or “internal improvements” Clay fought for throughout his career. In accepting the grateful president-elect’s offer of the office of Secretary of State, Clay opened himself and his ally to the charge of a “corrupt bargain”—a charge Jackson fervently believed true, and one he and his political allies kept alive for the next four years.

But the 1828 campaign also saw an interesting and important Constitutional dispute. No one doubted Jackson’s right to run for the presidency; he was fully eligible, legally speaking. More than that, his spectacular record as a military commander in several wars against Indian nations and in the War of 1812 evidently fitted him for the role of Commander in Chief. While the nickname “Old Hickory” is the one that has lasted, in his own lifetime he was equally known simply as “The Hero”: the hero of the Battle of New Orleans, redeemer of American pride at the end of a mostly ignominious war against our still-detested former imperial oppressors, the British, whom the adolescent Jackson had fought, suffering wounds and imprisonment, during the War of Independence. “Bloodied, but unbowed,” the phrase made by a British poet later in the nineteenth century, already described Jackson, how Americans felt about their country, and about him.

John Quincy Adams came from a line of decidedly unmilitary sorts—great men, too, but great civilians. His partisans in 1828 needed somehow to turn the Hero-General’s record against him, and in his years of soldiering Jackson had in fact left behind some ammunition for their use.

Adams’s partisans began by citing the Constitution. As with many of its important features, the Constitution’s laws for civilian-military relations leave room for interpretation and controversy. Having experienced the difficulties associated with citizen militia—those sunshine soldiers and summer patriots Thomas Paine decried—the Framers had come around to seeing the necessity as well as the danger of a standing army. They permitted one, controlled by biannual appropriations, which would keep ambitious officers on a short leash—or rather purse-string. Further, Article I, section 8 gives Congress “Power to… make rules for the Government and Regulation of the land and sea forces.” This ensures that military men will be tried in military courts under military law, but also that military law will be written by Congress, not by the military. It was John Adams, John Quincy’s father, who wrote America’s first military code, years before the Constitution, and it endured largely unaltered until the First World War.

Similarly, the Constitution places civilian control of the military in its actual operations firmly in civilian hands—those of the President. Article II, Section 2 states, “The President shall be Commander in Chief of the Army and Navy of the United States,” and of the militia, too. Controversy continues to this day over the question of whether it is the President or the Congress who may initiate a war, but this is a question over which the civilian branch has that authority, not one of military independence.

By 1828, Jackson had served his country not only as a military officer but as a member of the House of Representatives and as a United States Senator. Although his admirers and detractors united in calling him “General” Jackson, he was long decommissioned. What possible problem could there be in a Jackson presidency, then?

The difficulty lay not in his eligibility but in his temperament, as shown by his record. Andrew Jackson was a warrior spirit. Like all such spirits, he chafed under the governance of unmilitary souls. After the Battle of New Orleans he has suspended the writ of habeas corpus in the city as a precaution against civil disorder. A few years later, infuriated by the Treaty of Ghent’s restoration of Indian lands taken in the War of 1812, he challenged the authority of President James Madison and Secretary of War William H. Crawford, inducing them to renegotiate with the Choctaws, Chickasaws, and Cherokees, re-taking their lands, and effectively driving many of them into Florida, where they renamed themselves “Seminoles.”

That wasn’t enough for Jackson. He wanted Florida and, for that matter, Cuba too, for his country, having no more love for Indians and Spaniards (then Florida’s nominal rulers) than he had for the British. Stretching the limits of his instructions, he proceeded to take Florida, along the way trying and hanging a couple of Brits who had encouraged the Seminoles to fight. As with so many such expeditions before and since, the record shows an ambitious military officer doing rather more than he was told to do, with possible winks and nods from his civilian superiors. The Madison Administration grumbled but did not prosecute. And it did retain Florida for the United States.

A decade later, Adams’s partisans hoped they had an issue. Jackson’s longtime rival Henry Clay had once intoned, “Rome had her Caesar, England her Cromwell, France her Napoleon…. Let us be wiser than those nations.” He was quoted more than once in the campaign; against the charge of corruption, supporters of Adams and Clay charged insubordination and the danger of an elected military leadership.

The argument didn’t work in the election campaign because Jackson’s strongest defender in Madison’s cabinet had been none other than Secretary of State John Quincy Adams, who had argued that if Spain could not control the Seminoles (and they couldn’t), the American military commander on the spot had not only the right but the obligation to fight. As for the Indians themselves, Adams had cited the law of nations, as enunciated by such well-known authorities as Hugo Grotius and Emer de Vattel, which stipulated that a civilized nation had every right to punish nations or other groups that do not themselves respect the rules of just war. This teaching had been echoed by the Declaration of Independence, which defined “savagery” among some of the Indian tribes as the indiscriminate slaughter of women and children in war. Whatever the merits of Adams’s argument, the fact remained that he had made it, and published it at the time. The ammunition Jackson had left for his political opponents was overwhelmed by the ammunition left behind by their own candidate.

Electioneering notwithstanding, the complaints about Jackson in 1828 illustrate an important political principle, one that remains current in the United States today and in every political regime around the world, to one extent or another. The dilemma is easily stated: If you are for the people, for ‘the many,’ and against the aristocrats, the oligarchs, ‘the few,’ how shall you proceed? Although the many, being many, outnumber the few, the few, being few. are often better organized and better positioned for self-defense than the many. That being the case, do the many not need a champion? Do they not need one who will stand up for them, defeat the few in alliance with the many? But having done so, will ‘the one’ keep his promises? Or will he tyrannize over the many after defeating the few—the only group strong enough to resist the one and his subordinates?

Americans in 1828 remembered Napoleon, the real winner of the French Revolution. Some twenty years dead, Napoleon lived on in the minds of republicans everywhere. And during Jackson’s presidency his aggrieved opponents caricatured him as “King Andrew the First” (as a famous cartoon of the day portrayed him). They also called themselves “Whigs,” after the opponents of British monarchs, and after the American Founders themselves, who had appropriated the same good old name. At the end of Jackson’s second term, the French political writer and parliamentarian Alexis de Tocqueville visited the United States and worried that increased democratization of civil society could lead to despotism, as democrats (effectively if not intentionally) gave more and more of their sovereignty to their political heroes, duly elected to the central government in Washington. As a staunch Unionist and defender of states’ rights under the Constitution, Jackson himself maintained a balance between democratic society and republican institutions, but a century later, as a result of subsequent presidential elections, Americans would begin to lose their good fortune.