The constitutional republic created by our founders no longer exists. Most everyone on the Right seems to agree with that—though we differ about how deep the rot is, and whether we are now living under a new regime that is essentially different in kind, not merely degree.
Most of us also agree that we want to restore the American founders’ principles and institutions. (I’m setting aside, for now, those on the Right who share our disgust with the woke oligarchy, but who have given up on—or never believed in—republican government, and would prefer something else, like a monarchy.) But how exactly we recover the founders’ constitutionalism is a question no one has been able to answer with any specificity. Any course of action has to be clear about where we are and the challenges we face. The following outline is intended to help us think about these questions.
Here are the key things that I think are new or different, in some cases fundamentally so. These claims will be unsettling or even upsetting to some readers; but I don’t think they can be dismissed out of hand. At the end, I offer some ideas about what has not changed, which might provide some grounds for optimism.
I.
Elections—and therefore consent and popular sovereignty—are no longer meaningful.
This is the big one, and in a way, everything flows from it. It is helpful to break it down into two discrete pieces.
First, even if conducted legitimately, elections no longer reflect the will of the people.
Set aside for the moment any concerns about outright fraud and ballot tampering. The steady growth of the administrative state since the 1960s means that bureaucracy has become increasingly indifferent to—even openly hostile to—the will of the people over the last half-century. A clear majority of Americans, including Democrats (at least until recently), has been demanding and voting for comprehensive immigration reform, including strict control of the border, for decades. The Republican establishment in Congress—which made its peace with the deep state some time ago—has made numerous promises to fix this problem, and broken them all, always finding a reason for “amnesty now, enforcement later.” The decision about who gets to be part of the political community was the basic principle of popular sovereignty in the founders’ social compact theory. To the degree that the elites have simply ignored the American people on this point, neither the United States as a nation nor its citizens can still be considered a sovereign people.
Of course, that is only one obvious example. In thousands of other ways, the federal bureaucracy ignores the deliberate wishes of the American people. The regulators, administrators, and policymakers in the alphabet soup of federal agencies set the rules and impose their collective will as they see fit. Regardless of who the people repeatedly elect to reform the system, those politicians and their agendas come and go; the permanent government persists.
Yet even this has not been enough for the leftist oligarchy. Trump’s election in 2016 scared the establishment into taking even more extreme measures to prevent “unacceptable” electoral outcomes. Which leads to the latest antidemocratic development.
Second, elections now represent “manufactured consent.”
Mollie Hemingway showed in her excellent book, Rigged, that the technically legal though unscrupulous maneuvers undertaken by the Left—including legacy and social media propaganda and censorship, last-minute changes to election laws, and private money poured into partisan “voter education” efforts—were more than enough to alter the outcome of the 2020 election.
This new reality became even clearer this month. The highly manipulative practice of ballot harvesting—which reached new lows of cynicism in the recent midterms—makes a mockery of elections as an expression of popular deliberation and rational will. As Daniel Greenfield has written, the Democrats didn’t beat back the red wave because the voters chose them; they won by choosing their voters. It is hard to see how elections under these circumstances are substantially different from the artificial voting rituals practiced by the “people’s republics,” i.e., communist regimes of the 20th century.
II.
The idea that the founders’ institutional arrangements still obtain is a nostalgic fiction today—especially the idea of checks and balances based on federalism and the separation of powers.
As a treatise on constitutional government, The Federalist is and will always be a classic work of political science, with many enduring insights. (See, for example, the important observation in Federalist 2 about a people having “the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.”) But in terms of supplying a guide to how our federal government works, The Federalist has become the owner’s manual to a car that no longer runs, or was stolen long ago. What Publius describes about the functions of the legislative, executive, and judicial branches—as well as the countervailing powers of the states—has almost no connection with current reality.
Congress doesn’t write, the executive does not enforce, and the judiciary does not interpret the laws. Power and wealth have become massively centralized in Washington, D.C. Federalism, judicial review, executive authority, the legislative process, appropriations—none of this remains operational in a way James Madison would recognize. And now, the country’s most powerful corporations are in active collusion with the federal security apparatus to enforce the regime’s authority. That’s practically the definition of fascism.
The apparent reality of our constitutional forms is merely a Potemkin village; more on this below.
III.
Political competence, in the traditional sense, is becoming irrelevant.
Ignore the current spat between Donald Trump and Ron DeSantis. A bitter nomination fight would only benefit the opposition. What’s important to note is that any attempt by a Republican president to control his own (nominal) employees in the executive branch would require talents that neither Trump nor DeSantis has demonstrated. In fact, if confronting today’s administrative state, it isn’t clear how even a Lincoln or a Churchill would have exercised effective statesmanship. We are in a post-constitutional, even a post-political, environment.
For all his flaws, Donald Trump at least recognized that defending the sovereignty of the people (the most fundamental and meaningful definition of Americanism) meant striking at the legitimacy of the administrative state, especially its assumptions of rational expert knowledge. Trump correctly perceived that mockery and derision were effective, if indelicate, tools for challenging this hubris.
But Trump erred grievously in thinking he could accomplish everything he wanted on his own. The art of the deal doesn’t work when the other side holds almost all the cards. Trump underestimated this situation. And he was simply foolish and vain in thinking he could overcome it on the strength of his abilities alone and ignoring his duty to fill every available appointment with people loyal to—and willing to fight for—his agenda.
A DeSantis presidency, meanwhile, would have to recognize that while executive experience as a governor was once the ideal training ground for the Oval Office, this is much less true today. To whatever degree overweening bureaucracy has infiltrated the states, the governor of Florida does not have to deal with a national security machine that sets its own foreign policy, abuses classification rules, and engages in shameless leaking to a compliant national press; a Justice Department that weaponizes the resources and capacities of FBI to undermine an elected president; and a veritable nation of unfireable (for now) subordinates long habituated to regarding themselves as the true representatives of the public will.
Yet DeSantis has shown better instincts than Trump in backing up his words with actions, especially in his willingness to punish powerful opponents, like Disney, when they needed it.
It remains to be seen how either man could translate his virtues, and overcome his shortcomings, to exercise the power of the presidency creatively, with cunning, subtlety, and ruthless determination, in ways that pursue the goals of constitutionalism even while understanding that the old forms no longer apply.
Moreover, any president seeking to restore constitutional government would need large majorities in both houses of Congress committed to reform far more seriously than the current Republican leadership seems to be. This partnership would not involve traditional legislative log-rolling, but would require an alliance in a quasi-political street fight, probably leading to a constitutional crisis, to bring the bureaucracy to heel. It is a big ask to expect congressional leaders who would even understand how this would occur, let alone have the will actually to do it. Massive challenges await at every turn.
IV.
The moral habits of self-government have been crippled.
Since the federal behemoth hasn’t been responsive to popular will in several generations and has steadily undermined the moral basis of healthy families and personal responsibility, it’s hardly surprising that the American people have gradually lost the habits and virtues necessary for self-government. There is no short-term solution for this.
Under certain conditions, it is theoretically possible for someone whose legs have been paralyzed for decades to learn to walk again. But it’s a long and painful process, requiring intense determination and patience. It is an open question, at least, whether we have the kind of time necessary for such a long-term commitment to civic rehabilitation.
V.
By carrying on with retail politics and accepting the current situation as normal, people on the Right are now legitimizing and strengthening their enemies.
This may be the hardest pill to swallow.
Our current woke oligarchy becomes more fanatical every month, yet instead of getting weaker or provoking a popular backlash, it seems to grow ever stronger. In part, this is because the elites have maintained a semblance of institutional normalcy. No matter how extreme its policies—COVID lockdowns, chemical or surgical castration of children, open borders—the ruling class carries on with a kind of constitutional kabuki theater. Citizens (or rather “people”) vote, Congress meets and passes “laws,” the president pontificates and signs documents. It is largely just a performance; it certainly doesn’t resemble government functioning as the founders intended. But it looks close enough to the real thing to persuade many people that the situation, if not perfect, is at least tolerable. There is just enough veneer of Our Democracy™ to keep most citizens from acting on their dissatisfactions and justified fears.
But the longer this goes on, and the more phoniness people are willing to tolerate, the more the whole rotten edifice becomes accepted as legitimate. At some point, the people will have consented, by their acquiescence, to anything the regime decides to do. Soon, one suspects, our left-wing masters won’t find it necessary to keep up the charade.
That’s why I disagree with those who say we should simply go tit-for-tat with the Democrats. Julie Kelly and Scott McKay, among others, believe that Republicans need to adopt the Democrats’ ballot harvesting techniques in order to beat them at their own game. In the same vein, Ned Ryun argues, “If conservatives and Republicans want to win again, we had better adopt the only-ballots-matter approach at least in the short term or die. . . . This is now the modern-day political battlefield in America, the rules of the game. One can either howl at the moon about it or beat the Left at it.
Look, I get it. Nevertheless, this strikes me as a bad idea—practically, theoretically, and morally.
- Practically, we can never hope to match the maniacal zeal of the Left, which invests millenarian expectations in politics, and is thus always driven to do whatever it takes to win. Acknowledging this does not mean giving up and letting them win. But it does mean recognizing that in a race to the bottom, the Left will always get there first. And having fought tooth and nail to see who can go lower, what do we do when we reach the bottom?
- Theoretically, this means we will be participating in altering the essential meaning and purpose of elections. Representative, deliberative democracy will become the technocratic accumulation of votes—a clickbait contest that rewards whichever side can best wage computerized demographic warfare.
- Morally, we will then lose any claim that we are trying to recover genuine self-government. If the argument is that we need to descend to the Democrats’ level in order to gain power, one might ask, “Why not just cut to the chase and skip the empty, meaningless process?” If power really becomes the only object, and neither side really believes in consent, then the entire pretense will fade away soon enough anyway.
Accepting, even “in the short term,” the regime’s authority to perpetually rewrite the rules of the game is the true surrender. They will always win if we repeatedly acquiesce to their legitimacy, chasing after what they define as normal on their terms. Worse, there won’t be a republic in the long term worth having.
I know that what I am painting here is a pretty bleak picture. But while it reveals a rough road in the short term, I don’t think it necessarily dictates long-term despair, in part because there are certain truths about political life that the Left cannot change.
Now let us move on to the question of what remains the same about our politics. What things are eternal and beyond the reach of the Left?
Human nature. If the Left were correct in its postmodern conceit that human nature supplies no grounds for justice, and power without principle is all there is, then we might as well give up now since we will never beat the tyrannical fanatics on their turf. But is the Left correct in its nihilistic rejection of objective morality and natural right?
One compelling bit of evidence that they are wrong is the clear contradiction between two dogmatic but arbitrary ideas central to woke ideology. On the one hand, individual identity, and therefore moral status, is held to be remorselessly fixed. We are divided into victims and oppressors, with all whites being irretrievably implicated in systemic racism. At the same time, however, we are told that humans are radically autonomous in their freedom to pursue whatever feels good: nature imposes no limits whatsoever on our desire to remake ourselves. Thus, with a few pills and strategic snips, boys can be made into girls.
No matter how often this fantasy is exposed as a cruel fraud, new charlatans emerge to peddle novel forms of this recipe for misery. To the victims of communism killed by torture and starvation, we can now add the scarred minds and mutilated bodies of today’s “gender dysphoria” patients.
You can throw nature out with a pitchfork, said the Roman poet, but she will always return. This fact is liberating and inspiring. Standing on the side of human nature is exactly where we want to be.
The principles of just government. Natural rights, equality, and consent are the trinity of the founder’s theory of constitutionalism. All three reflect an understanding of political justice grounded in nature and human nature. It is possible to have a good regime without these concepts. But in a world shaped by classical philosophy, Christianity, and modern science, it is hard to see how any decent political community could be sustained over time without them.
Whatever depredations our ruling class may inflict on their deplorable enemies in the short term, nothing they do can alter the enduring nobility of the founders’ achievements or our ability to find inspiration and instruction in those achievements.
Moral freedom. There seems to be no clear path, at least right now, to overcoming the woke oligarchy. But we might take some comfort in the second great error of the Left: history is not on their side because history doesn’t take sides. Deterministic “progress” is a myth because our destiny is not fixed. The eternal danger of tyranny—which confronts us now in a grave way—is coeval with the eternal possibility of freedom. Man, as Aristotle said, is the rational animal; because our nature does not change, the freedom of the human mind may be the greatest cause of optimism. The human soul could yet reveal radical and unexpected possibilities.
If honor and virtue can still triumph, it will only be when we appreciate how needful they are. That means we have to be honest with ourselves. The first half of this essay paints a dire picture. Only by confronting and accepting the most uncomfortable truths about our lost republican heritage will we summon the necessary courage and strength to fight for its recovery.