A decade’s long refrain from principled conservatives and civic nationalists has been that the problems of America could be cured by returning to the constitutional principles as defined by the Founders. The principled conservatives have, of late, be much more enthusiastic for the alleged principles of the Declaration, while the civic nationalists stick with the Constitution as written. The trouble is, the cause of the present troubles, the source of what ails current year America is the Constitution itself. Constitutions can be written and unwritten, positive and negative. American has a mostly written constitution, while the UK has an unwritten one. By unwritten, it is understood to mean there is no single controlling document. Instead, there are customs and precedents that have been in place for so long that most citizens think these are, in fact, laws yet they are not. There are laws originating from these customs and precedents, but ultimately, tradition is what frames the political order.
Then there are negative and positive constitutions. A positive constitution is one that details the duties of government. These duties could be to the citizens or they could be the duties of the defined entities within the state. The negative constitution, in contrast, lists the powers of the state, the division of power within the state and the limits of the power of the state over the citizens. The American constitution, as originally conceived, is a negative constitution. It sets limits on the government.
That’s the theory, but in reality, constitutions are a blend of the written and unwritten, as well as a mix of positive and negative law. In the American system, traditions and customs have arisen that seem like laws. Legislatures have passed laws obligating the government to perform certain duties for the citizens. Of course, there is the that divide between those who see the constitutional order resting on the Gettysburg Address and those who see it still in the Bill of Rights. Ours is a blended system.
There’s something else about constitutions that goes unnoticed. That is they define of the roles of the power centers of society within politics. For example, the Founders understood that real power in America was local. In each of the former colonies, there were local elites who welded real power. Because they were sane men, they knew real power always rested in the upper reaches of the natural hierarchy of man. In the new constitutional order, those power interests needed a defined role.
The Senate, which was the body representing the local elites, was given an important role in the new political order. Since there was no such thing as a national elite, and no one wanted such thing, there was no role for a national elite. Instead, the Senate was the body that would represent the states, which were controlled by the local elites. Through the state legislatures, senators would be chosen to represent state interests in the new federal government. The Senate is the rich people’s house.
There is the first problem with the Constitution. In the 18th century, a national elite came in one form and that was a king and the aristocracy. The king had national interests, as he technically owned the society over which he ruled. He also had the power to exercise his rights, either directly or through the network of aristocrats, who were often his kin. This was not something Founders had or wanted. They had just fought a long war with the king to establish their local rule over their domains.
Therefore the idea of a national or global elite was anathema to the Founders, so there was never a role defined for this type power center. Further, subsequent changes to the Constitution have stripped the states of their power in government. The Senate is another democratic body. As a result, local elites have no voice in national government. Compounding it, there is no definition and therefore no limit on the national elites. National and now global interests operate outside the constitutional framework.
That’s the other defect in the constitution. An unwritten political order requires those with power to exert their power. In order to maintain power, elites of all types must actively assert their privilege, often with calls to tradition and custom. In a written system, the bias is toward defending prerogatives and privileges. The law becomes the ultimate source of authority, because it is the lines separating the various power interests within the political order. Everyone has to be a lawyer.
Because the American written constitution never defined a role for national and global elites, they are free to exert their power as much as nature will allow. Because they only confront resistance from those constitutionally limited institutions, playing defense within the law, they have been free to expand to the point where they now transcend the political order. It is why appeals to the law to restrain the aggressive behavior of woke capital is pointless. The law is constrained from acting.
It is why, as absurd as it may sound at first blush, a third house of Congress could be created to resolve this asymmetry. The moneyed interest bribing Congressman and Senators would be prohibited from that practice, but be provided a chamber of their own with power to counter the House, Senate and Executive. The new house, perhaps, would be given the power of the purse, since they pay the taxes, while the House would be given power that reflects the interests of the modern citizen.
This would be resisted by the elite, so it would never happen, at least not without a revolution. This is why efforts to curb the flow of money into politics have failed. The people giving the money have no reason to support such a change. It’s why abolishing corporate taxes would be most resisted by the corporations themselves. It is through the tax code that corporate interests can most influence Congress. Without a reason to lobby Washington, they can’t be there to exert their power over politics.
The expansion of democratic elements into the American constitutional system has added another set of problems, the illusion of choice and the illusion of power. Voters think the parties offer real options, when the options are controlled entirely by the undefined elite. They also think the power of their vote has real value. This blinds the citizen to the reality of his political order. Democracy magnifies the defects of the written constitutional order, resulting in the current instability.
This is why calls to return to the old order or even the order of the second founding is a primitive response to the problem of design. Even if it were possible to roll back to such a system, the power relationships would not change. In fact, a smaller government, as originally intended, would be weaker and less able to fend off the predations of the power elite elite. Put another way, if the roots of the problem are the defects within the Constitutional order, fidelity to that order is the problem, not the solution.
Of course, if the plan is to revolt in order to put the old political order back on the throne, then that leaves open the option of revolting and creating a new political order that reflects the realities of the current age. The original Constitution was about codifying the victory of the Founders, who revolted against the old order. A revolution against the old order of today, a successful revolution, will inevitably result in codifying the victory of the victorious revolutionaries. The new principles will reflect their sensibilities.
