Phony Moralities, Alternate Realities
The progressive case against the Constitution defies both history and common sense
Progressives have always had a fraught relationship with America’s foundational charter, the Constitution of the United States.
The problem goes back a long way. Our twenty-eighth president, Woodrow Wilson, and the Progressives of his era set the tone with a critique of constitutional government as practiced up to the close of the nineteenth century. Professing as they did a “scientific” concept of government, with effective political power in the hands of credentialed experts, Wilson & Co. had scant patience for the checks and balances built into the Constitution. A modern industrialized country, they believed, required a modern form of government.
Wilson’s ideas were first framed in an article published in 1887 when he was a professor of history at Bryn Mawr College, “The Study of Administration.” In it, he denounced “the error of trying to do too much by vote” and made out a case for “administrative elasticity and discretion”—immune from the virus, as he saw it, of constitutional checks and balances. Self-government, in Wilson’s view, should take the form of rule by credentialed elites, with popular consent to be sure, but free from undue interference by Congress or the courts.
This cult of expertise prospered mightily, and more than a century later the Wilsonian conception of democratic government has become holy writ on the the broad Left. And admittedly, America has traveled a long way down the road signposted by those turn-of-the-century Progressives. Over years and decades Congress was content to cede much of its lawmaking authority to administrative agencies of the executive branch, while until recently federal courts have treated agency-promulgated regulations with great deference, granting them the full force of law. But the Wilson system, if such it may be called, has never been fully embraced. The United States is a large, diverse country, not easily managed by a centralized bureaucracy, and the fifty states retain considerable political authority. Nor is government by credentialed elites particularly popular outside the Beltway. “Washington bureaucrat” has never been a term of affection, and events over the past several years have eroded the credibility of elite institutions and expertise both public and private.
Yet government on the Wilson model is extremely convenient for reform-minded progressive activists who in one way and another aspire to a “fundamental transformation” of America. Proposals that could never get through Congress might yet be adopted by electing a compliant president, one willing to mobilize the administrative state in the cause of “social justice” or “anti-racism” or “climate change” and so on. Also, of course, government by administrative fiat is an attractive option for any president, progressive or conservative, whose legislative agenda has flamed out.
But alas for these ambitions the Constitution is still there, its distribution of powers and its checks and balances complicating the orderly and convenient process of government by administrative fiat. This was not seen as a problem by today’s progressives as long as effective political power remained in their hands, and while the American people retained their faith in the honesty and competence of government. Times have changed, however. Once-reliable institutions like the federal courts can no longer be counted on to rubber-stamp each and every agency ukase. Even more ominously, the signs of a great political realignment, based to a significant extent on feelings that government is corrupt and, worse, inefficient, have sent shivers of apprehension through progressive ranks. That their own political priorities are out of with those of the American people makes the situation appear even more dire.
The current crisis of progressivism is in the nature of a wasting disease, with the progressive embrace of postmodern relativism as the culprit pathogen. The irrationality and magical thinking that characterize progressive politics is well illustrated by its embrace of the zany ideology of gender. Progressives have gone beyond the advocacy of alternate policies; today they advocate for alternate realities. No wonder, therefore, that progressives have come to revile the Constitution of the United States, which was drawn up by men who above all were realists, acutely conscious of the challenge they faced.
Characteristically, the contemporary progressive critique of the Constitution is not based on a Wilsonian appeal to the superior merit of credentialed expertise. Progressives, though they pay homage to the outward forms of expertise—diplomas, certifications, post-nominal initials—long ago abandoned the old Progressive faith in facts, logic and rational analysis. They now treat politics as a morality play presenting stark choices between between light and darkness, good and evil.
Because it bars the way to the Radiant Future of the progressive imagination, the Constitution has a large, villainous role in this morality play. Therefore it is—it must be—the evil work of evil men.
In the first place progressives argue that the Constitution is undemocratic, claiming correctly that in various ways it mitigates against majority rule. The assumption here—a dubious assumption—is that majority rule is morally superior to constitutional systems that make “anti-democratic” provision for the protection of minority rights. The complaint goes something like this: Why should the people of a populous state like California have their will thwarted by a sparsely populated state like Montana?
Added to this complaint of a democracy deficit is the assertion that the Constitution is morally corrupt by design, having been drawn up by a cabal of white men, many of them slave owners, for the specific purpose of protecting the institution of slavery.
When the Constitutional Convention convened on May 25, 1787, its mandate was to propose revisions to the Articles of Confederation, the governing charter that had been adopted during the American Revolution. Only gradually did the delegates come to the conclusion that the Articles should be scrapped altogether and replaced by a completely new constitution. The agreed-upon aim was to create a scheme of central government limited in scope but possessing all the powers necessary to carry out its designated responsibilities.
This aim was achieved after much debate through a series of compromises: a federal structure with power divided between the states and the national government, the national government itself divided into three distinct branches, a system of multiple checks and balances, ultimately a Bill of Rights that secured the rights of citizens, mostly by limiting the powers of the federal government in certain spheres.
True, the abolition of slavery was not discussed or proposed—for the obvious reason that had it been, the United States of America as we know it would never have come into being at all. Except in parts of New England, slavery was legal throughout the country and in four of the thirteen states—Virginia, the two Carolinas and Georgia—it was the basis of the whole agrarian economy.
Though there were many prominent Americans such as John Adams who opposed slavery on moral and political grounds, even they recognized that any attempt to abolish it would be futile—probably resulting in disunion. This prospect of a slaveholding confederacy coming into being in 1787 instead of 1860 is a compelling and rather disquieting counterfactual. But as things turned out the ratification of the Constitution by all thirteen states kept the country together—while setting the institution of slavery on the path to extinction. With the benefit of hindsight we can see that within the framework of the Constitution, slavery’s days were numbered.
For despite the claims of the 1619 Project & etc. the Constitution did not explicitly protect slavery. In its actual text there are just two references to slavery: the so-called Three-Fifths Clause (Article One, Section 2) and the prohibition on congressional action to abolish the slave trade before 1808 (Article One, Section 8). The protections thus afforded to slavery were marginal and temporary. The Three-Fifths Clause, which gave the slave states additional seats in the House of Representatives, was gradually eroded by demographic changes, and Congress acted promptly to prohibit the importation of slaves when the constitutional prohibition on such legislation expired.
There is, however, an even more compelling piece of evidence that the Constitution gave no protection to the South’s “peculiar institution”: the events of late 1860-early 1861. The secession crisis following the election of Abraham Lincoln saw eleven slave states split off from the Federal Union to form a new nation, the Confederate States of America, whose constitution gave explicit legal protection to slavery. The conclusion is obvious: that the Constitution of the United States did not and never had provided such protection to slavery, that the Southern leaders knew this, and that’s why they took their states out of the Union. Why else would secession have been deemed necessary?
But when I pose this question to progressives of my acquaintance—Shut up, they explain.