Which United States Constitution?
The choice between the Madisonian Constitution or the Wilsonian “living constitution” is stark and pressing indeed.
Fifty years ago my United States Naval Academy Class accepted its individual commissions. Each officer swore an oath of indefinite duration to support and defend the Constitution of the United States against all enemies, foreign and domestic; to bear true faith and allegiance to the same; and to well and faithfully discharge the duties of the office on which they entered. It is an interesting formulation, for it requires one’s allegiance to, and defense of, our founding document and by extension the principles it embodies.
For virtually all of us there was clarity about what was meant by the Constitution of the United States. Even in the unlikely event that a midshipman had arrived at the Academy unschooled in civics, one did not graduate without passing course H303, U.S. Government and Constitutional Development. Prospective officers understood the Constitution of the United States to be one of the organic laws of the United States, the Madisonian instrument designed by the Constitutional Convention, ratified in 1789, and adapted in the Bill of Rights and succeeding amendments, to protect the principles of the American founding stated in the first of the organic laws, the 1776 Declaration of Independence.
One cannot help but wonder which United States Constitution today’s generation of serving officers intends to support and defend when they swear and live their oaths of office. For, make no mistake, while the Madisonian Constitution, as amended, and the Declaration of Independence are still the written laws of the land, the United States is administered today by an entirely different constitutional regime, underpinned by a radically different set of principles. Each officer must face the moral and ethical questions of which to support and defend, and what that defense may entail.
The first principles of the American founding are concisely stated in the Declaration of Independence, the first official act of our Congress and the fountainhead of American law.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” (emphasis added)
The political philosophy of natural law and natural rights championed in the Declaration was enshrined by the Congress as our nation’s statement of first principles. In the U.S. Code Congress has placed it at the beginning, under the heading “The Organic Laws of the United States of America,” ahead of the Constitution. James Madison, the father of the Constitution, said that it was “the fundamental act of union,” the first lawful document by which we illuminate the constitutional principles of Americans.
But, what do the words mean? The founders stated that our rights were individual rights; that they were shared in common by all mankind; that they were conferred by God, not by a state; and that they were ours by right, not rationed by government as a means to its ends. They proclaimed these values incontrovertible, requiring no defense. They declared that the legitimate function of government was to secure the natural rights of individual citizens, and that the power of governments to secure those natural rights derived only from the consent of the people.
The Constitutional Convention labored to craft a document that could be passed out of convention and be ratified by the states. The result was a Constitution founded upon natural law, designed to defend the natural rights of citizens, and equipped with safeguards intended to preserve the union, minimize abuse of power, and assure justice for all. The principle features designed to protect the Republic and constitutional governance included:
- Separation of powers between the legislative (enact law), executive (enforce law), and judicial (interpret law) branches of government;
- Multiple provisions to protect minorities, as individuals, classes or as States, from the tyranny of a majority by features such as due process, a bicameral legislature, and an Electoral College;
- Formal processes for amending the Constitution;
- Formal processes for electing the president; and
- Reservation of powers not delegated to the United States by the Constitution, nor prohibited by it to the states, to the states or the people respectively.
The founders’ political philosophy of natural law stands in stark contrast to the contemporaneous philosophy of utilitarianism espoused by Jeremy Bentham. Bentham found the motivating principle for society in the shorthand phrase, “The greatest good for the greatest number.” This view, rejected by the founders, embraced the state as the arbiter of a “common good;” found right and wrong to be relative, defined in terms of the effect on the “common good;” believed that the “common good,” and hence government by the state that defined it, was preeminent over individuals. In utilitarianism, personal liberty exists only to the extent it is bestowed by governments, granted in the context and support of the state defined “common good.”
There is a profound, irreconcilable, difference between the first principles of American values stated in the Declaration of Independence and the beliefs of Bentham and his philosophical heirs such as John Stuart Mill, Georg Wilhelm Hegel, Karl Marx, Herbert Marcuse, and Erich Fromm. Those political philosophers provide the philosophical underpinning of contemporary utilitarian-based Progressive movements. For over a century, the proponents of Progressivism have unceasingly advanced a vision and values directly opposed to those the country was founded on. They have mounted sustained legislative, judicial, and executive programs that have incrementally subverted the United States Constitution. They have supplanted it with a regime of governance that compromises essential elements of Madisonian constitutional governance, effectively replacing it with an antithetical political philosophy. And like the proverbial frog cooked in the pan of water brought slowly to boiling, many are totally unaware of this changed constitutional environment.
The seminal political architect of changes that have been impressed into American constitutional governance over the past century was President Woodrow Wilson. Under the cover of the national emergency of World War I, Wilson initiated two radical transformations to Madisonian constitutional governance of limited powers.
- The first, his doctrine of a “living constitution” circumvents provisions of the constitution by constituting the Supreme Court functionally as a permanently sitting constitutional convention, usurping the power to make law reserved to the elected Congress and inventing new law and constitutional provisions by judicial action, contrary to the Madisonian Constitution’s separation of powers.
- Wilson’s “administrative state” is an even more profound transformation of constitutional governance. Eliminating the separation of powers entirely, it empowers unelected, unaccountable bureaucratic agencies to reign sovereign over the people, able to make rules with the force of law, enforce them, and adjudicate breeches of them, often absent the due process guaranteed by Madisonian governance.
Wilson’s transformations were founded on the Hegelian concept of a state that is sovereign over the people. The Hegelian state functions to define the interests of the community and delimits individual liberty to conform to this revealed state interest. Wilson and his successors have substituted the state as the source and arbiter of citizen’s rights, eliminating the Madisonian construct of the state as the servant of the people, governing with their consent in defense of their inalienable rights bestowed from the Creator’s fountainhead.
Wilson’s Progressive successors have consolidated and extended the transformation of constitutional governance that he initiated. Under cover of another national emergency, the Great Depression, President Franklin Roosevelt radically extended the definition of interstate commerce in Article 1, Section 8 of the constitution. Initially rebuffed by the Supreme Court in his attempt to usurp powers reserved to the states, Roosevelt threatened legislation to pack the Supreme Court with supporters. Thus threatened, the court acceded to Roosevelt’s vast expansion of the extraconstitutional regulatory state. This further overturned constitutional protections such as the separation of powers, the presumption of innocence, and standing for judicial review.
Today, the Progressive effort to subvert and functionally replace the Madisonian Constitution and the rights that underpin it continues apace, with current events replete with examples.
- Faced with a thin majority of Supreme Court Justices who profess a nominally Madisonian view of the Constitution and jurisprudence, and who are the sole bulwark against elective tyranny, today’s Progressives once again propose to pack the Supreme Court to further consolidate their power.
- Several state legislatures have attacked the Constitution by enacting statutes to enable direct election of the president via the National Popular Vote Interstate Compact. This perversion intends to circumvent several constitutional provisions. These include those for the election of the president; for amendment of the Constitution; and for interstate compacts. At its core it would disenfranchise many voters by requiring state electors to cast votes based on the voting in other states, rather than in their own.
- Progressives have attacked freedom of speech both directly and indirectly under cover of anti-extremism and fantastic allegations of insurrection with political indoctrination, cancel culture, speech codes, and deplatforming.
- Prominent Progressives have attacked freedom of religion, perverting the Constitution’s intended protection of religious expression. They express open hostility to religion, designed to suppress religious expression and to attack qualification for public office on the basis of professed religious belief. They have initiated numerous government actions to coerce individuals and religious organizations to take actions contrary to their faith.
So which United States Constitution does the current generation of serving officers support and defend? The formally adopted Madisonian Constitution and its Lockean vision of liberty underpinned in natural law, inalienable rights, and legitimacy based upon the consent of the governed; or the Wilsonian constitutional regime and its Benthamite/Hegelian underpinning in a statist defined “common good” of contingent rights and liberties?
Will they embrace and fight for the defining values and rights conferred by natural law as enshrined in our founding documents, or abdicate the legacy our forefathers fought and died for and accede to the elective statist tyranny, moral relativism, and legal positivism (judge-made law) of the descendants of Bentham?
Make no mistake; the choice between these visions is the critical issue of our American age. Each officer, whether in our individual actions as citizens in civic affairs—or in organizational leadership to our communities, businesses, or government agencies—faces profound moral and ethical decisions in this regard. We will define our place in history, and bequeath our greatest gift or curse to our posterity, in the choice we make between them. A significant portion of our body politic unabashedly attacks the vision and values America was founded on, embracing a diametrically opposed vision and set of values, while others simply sleepwalk through it all, content to go along to get along.
From the earliest days of the American experiment, preeminent American leaders have understood how fragile it is. Franklin, asked about the form of the new government after the Constitutional Convention replied, “A Republic, if you can keep it.” Washington warned in his farewell address about the risk of losing shared common vision and values to factionalism. Lincoln, above all, understood and emphasized that preserving America and its common founding vision and values required covenantal rededication by each succeeding generation.
The United States of America has been engaged in a struggle over the choice between our formally adopted Madisonian Constitution and the competing, incrementally advanced Wilsonian constitutional regime for over a century. Taking inspiration from Patrick Henry’s speech before the Virginia Convention at St. John’s Church in Richmond on March 23, 1775, we argue that those who believe in America’s founding values but deny this reality have eyes, but see not; have ears but hear not. Hearkening back to a time of youth perhaps, they cry for a return to civility and restraint in public discourse, crying “Peace, peace!”—but there can be no peace between these alternatives.
We are potentially at a tipping point in the history of our Constitution and constitutional governance. Those who crusade for Wilsonian governance and its rejection of America’s founding values are today ascendant in government institutions and much of public culture. They already display the inclination to suppress opposition by such means as are available to them, including political indoctrination and broad proscription/punishment of “political speech” in the Armed Forces. Those who take an oath to support and defend the Constitution of the United States of America face choices in the execution of that responsibility.
What does it mean to support the Constitution? Is their obligation passive or active? Does military service alone fulfill the obligation to support and defend the Constitution? Is there an obligation to speak up publicly, either inside or outside the military organization to support the Constitution? Is such speech a “political” or “extremist” activity or is it a core element of carrying out their oath of office? All are fair questions, yet all must be preceded by officers first consciously answering for themselves, “Which Constitution of the United States am I defending?” The choice between the Madisonian Constitution that remains the law of the land or the Wilsonian “living constitution” that subverts its intent, denies its underpinning values, and is increasingly the basis of current governance is stark and pressing indeed.
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