The Framers believed they had done what they could, through the Constitution, to fend off tyranny by the few and the many.
Still, the Anti-Federalists were not convinced, and ratification of the Constitution in several states was in jeopardy. Madison and others tried to alleviate the objections. In Federalist 39, Madison argued that the federal government had only “certain enumerated” powers and the states retained “residuary and inviolable sovereignty” over all else.2 In Federalist 45, he asserted that the proposed federal powers were “few and limited” and the power in the states remained “numerous and indefinite.”3 Nonetheless, Virginia’s George Mason, among many others, insisted that more was needed to contain federal authority and safeguard the states’ plenary power. In order to secure the Constitution’s ratification, the Federalists eventually agreed to introduce a set of amendments in the 1st Congress, which had been widely accepted in advance, further delineating and underscoring the limits of the federal government respecting its potential abuse against the individual and usurpation of the states. They became known as the Bill of Rights.
Much has changed in America, and for the worse. I am not speaking of the natural change, evolution, and progress that flows from spontaneous interactions among free people, which is mostly desirable, essential, and regular. In fact, it is the disposition of the civil society. It is the reason for advancements and developments in new products, services, technologies, science, medicine, etc., and the source of the nation’s economic vibrancy and prosperity. Contrarily, the underlying factors and values that make possible the civil society, which center on the liberty and rights of the individual, have been and are being devitalized and stifled by utopian masterminds who substitute their preferences, objectives, and decisions—including rewarding their political allies and supporters—for a free people.
The means by which these utopians amass their power is through the federal government. The federal government has become unmoored from its origins. As a result, America today is not strictly a constitutional republic, because the Constitution has been and continues to be easily altered by a judicial oligarchy that mostly enforces, if not expands, federal power. It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment. It is not strictly a federal republic, because the states that gave the central government life now live at its behest. America is becoming, and in significant ways has become, a post-constitutional, democratic utopia of sorts. It exists behind a Potemkin-like image of constitutional republicanism. Its essential elements and unique features are being ingurgitated by an insatiable federal government that seeks to usurp and displace the civil society.
Montesquieu warned of government’s threat to civil society unless it follows a moderate course. “May we be left as we are, said a gentleman of [a republican government]. Nature repairs everything” (3, 19, 6). Tocqueville believed that America had, effect, heeded Montesquieu’s counsel. “Nothing is more striking to a European traveler in the United States than the absence of what we term the government, or the administration.… The administrative power in the United States presents nothing either centralized or hierarchical in its constitution; this accounts for its passing unperceived.…” (I, 70–71) However, that was then. America has been transitioning from a society based on God-given inalienable rights protective of individual and community sovereignty to a centralized, administrative statism that has become a power unto itself. It appears nearly everywhere as a dominant fixture and intrusive force in daily life. If its interventions are with limits, the limits are increasingly difficult to define. The circle of liberty, which was once expansive, and within which the individual was largely unmolested in his manner and pursuits, is shrinking rapidly as less and less area is left for him to live without torment.
The architects of America’s unmaking are too numerous to list, let alone examine with particularity. However, the most prominent include Woodrow Wilson, who merits at least brief attention.
In 1908, as president of Princeton University and prior to ascending to the Oval Office in 1913, Wilson authored a treatise titled Constitutional Government in the United States. Yet, Wilson wrote not of the Constitution as is but as he wished it to be—that is, denuded of its carefully crafted limits on the central government.
Wilson asserted, “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle.”4 Clearly, Wilson dismissed not only the Declaration of Independence and the Founders’ announced purpose for American independence, but the Lockean exposition on natural law, the nature of man, the social compact establishing the civil society, and the essential ingredients of constitutional republicanism (shared broadly by most of the best thinkers of the European Enlightenment). In short, for Wilson, rights are awarded or denied the individual as determined by the government.
Underscoring this point, Wilson argued, “Government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered,—this principle of liberty, that there must be the freest right and opportunity of adjustment. Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the contentment of the citizen.”5 Notice Wilson’s use of the word privilege in lieu of inalienable rights when discussing the status of the individual in his utopia, underscoring the malleability of rights at the hands of masterminds.
For Wilson, government is to be treated as a living being; indeed, it is the most important of beings. Identifying man with the state and the state with man is typical of utopians. In the Republic, Plato wrote that “a just man won’t differ at all from a just city in respect to the form of justice; rather he’ll be like the city” (435b). Thus man ought not fear government but surrender to it, embrace it, and be at one with it. The Framers’ efforts to restrict federal power with checks and balances, etc., would, in Wilson’s view, deprive oxygen to the body of government just as assuredly as would restricting the various organs of man.
In furtherance of this analogy, Wilson wrote, “It is difficult to describe any single part of a great governmental system without describing the whole of it. Governments are living things and operate as organic wholes. Moreover, governments have their natural evolution and are one thing in one age, another in another. The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory. Leadership and control must be lodged somewhere; the whole art of statesmanship is the art of bringing the several parts of government into effective cooperation for the accomplishment of particular common objects, and party objects at that. Our study of each part of our federal system, if we are to discover our real government as it lives, must be made to disclose to us its operative coordination as a whole: its places of leadership, its method of action, how it operates, what checks it, what gives it energy and effect. Governments are what politicians make them, and it is easier to write of the President than of the presidency.”6
Wilson took direct aim at Montesquieu as the source of the Framers’ single-minded and supposedly misplaced reliance on divided government. “The makers of our federal Constitution followed the scheme as they found it expounded in Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and e
ach against the courts. Our statesmen of the earlier generations quoted no one so often as Montesquieu, and they quoted him always as a scientific standard in the field of politics. Politics is turned into mechanics under his touch.…”7
Wilson’s objective was to centralize and consolidate power in the federal government and redefine the relationship between it and the individual. His assignation of human characteristics to the federal government was an argument for maximalist federal power where the central government has unrestrained flexibility and freedom to operate, and where the rights of actual human beings are diminished and their pursuits restricted. The individual lives to serve the body politic and, in turn, the politicians who oversee it. Wilson wrote, “The trouble with the theory [of limited, divided government] is that government is not a machine, but a living thing.… It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day of specialization, but with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice.”8 Wilson’s reference to Darwinism highlights his notion of the federal government in a constant state of motion and evolution, where the Constitution and the government it establishes are no longer fixed or predictable. The individual and society generally are to serve the nutritional demands for eternal governmental growth, in the form of power, demanded by Wilson’s utopian dogma.
Wilson would substitute Locke’s civil society and Montesquieu’s limits on government with a form of Thomas Hobbes’s social compact. In describing his “great Leviathan,” Hobbes argued, “Every man should say to every man I authorize and give up my right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in a like manner.” “That Mortal God to which we owe, under the Immortal God, our peace and defence.” And in this Sovereign “consisteth the essence of the commonwealth, which is one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence” (Leviathan, 109). For Wilson, the federal government, and particularly the president, takes on the qualities of Hobbes’s Sovereign. Indeed, Wilson proclaimed, “the President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution,—it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and Congress has not.”9 There are few demagogues and tyrants who would disagree with such a prescription.
Wilson argued further, as he had to, that the federal courts are not bound to the Constitution. “The weightiest import of the matter is seen only when it is remembered that the courts are the instruments of the nation’s growth, and that the way in which they serve that use will have much to do with the integrity of every national process. If they determine what powers are to be exercised under the Constitution, they by the same token determine also the adequacy of the Constitution in respect of the needs and interests of the nation; our conscience in matters of law and our opportunity in matters of politics are in their hands.”10 Moreover, the only legitimate opinions the federal courts can render are those that endorse and promote the expansion of federal power. “[T]hat if they had interpreted the Constitution in its strict letter, as some proposed, and not in its spirit, like the charter of a business corporation and not like the charter of a living government, the vehicle of a nation’s life, it would have proved a straight-jacket, a means not of liberty and development, but of mere restriction and embarrassment.”11
What, then, should guide federal judges if not the Constitution? Apparently their uniquely innate wisdom. Wilson wrote, “What we should ask of our judges is that they prove themselves such men as can discriminate between the opinion of the moment and the opinion of the age, between the opinion which springs, a legitimate essence, from the enlightened judgment of men of thought and good conscience, and the opinion of desire, self-interest, of impulse and impatience.”12
Therefore, the purpose of the judiciary is to sanction, if not clear the path for, the extraconstitutional actions of the federal Leviathan, especially the president. Wilson argued for a judicial oligarchy that would, in essence, sanction the rewriting of the Constitution in accordance with his utopian belief in what Plato characterized in the Republic as an Ideal City. In fact, so difficult are the Constitution’s amendment processes that the courts are encouraged to circumvent them and to be praised when they do. “The character of the process of constitutional adaptation depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the option and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation,—the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaptation has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity.…”13
Even Tocqueville misjudged the federal judiciary’s capacity for steamrolling its way through the Constitution and society. He wrote, “It is true, the Constitution had laid down the precise limits of the Federal supremacy; but whenever this supremacy is contested by one of the states, a Federal tribunal decides the question. Nevertheless, the dangers with which the independence of the states is threatened by this mode of proceeding are less serious than they appear to be.… [I]n America the real power is vested in the states far more than the Federal government.” Tocqueville believed that “[t]he Federal judges are conscious of the relative weakness of the power in whose name they act; and they are more inclined to abandon the right of jurisdiction in cases where the law gives it to them than to assert a privilege to which they have no legal claim” (I, 143).
Furthermore, Wilson’s utopianism necessarily grants Congress extensive and expanded power to legislate without regard to, or over the top of, the states. The entire federalist approach, so crucial during the founding and to the Framers of the Constitution, and without which there would have been no United States, must be demolished. “What, reading our Constitution, in its true spirit, neither sticking in its letter nor yet forcing it arbitrarily to mean what we wish it to mean, shall be the answer of our generation, pressed upon by gigantic economic problems the solution of which may involve not only the prosperity but also the very integrity of the nation, to the old question of the distribution of powers between Congress and the States?”14 Notice Wilson’s arrogance when he claims he is not insisting that the Constitution reflect “what we wish it to mean”—that is, what he wishes it to mean—but that he is simply revealing “its true spirit.”
Of course, Wilson read the Ninth and Tenth amendments out of the Constitution, as they are the most explicit statement of individual and state sovereignty in the Constitution. His view has been adopted by most federal courts in modern times, using the Civil War an
d popular opinion as sham rationales for licensing unfettered federal authority. “The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers.”15 Furthermore, “we are impatient of state legislatures because they seem to us less representative of the thoughtful opinion of the country than Congress is. We know that our legislatures do not think alike, but we are not sure that our people do not think alike.…”16
Wilson contended that this is all necessary and proper. Indeed, it is the inevitable tide of history and mankind’s fate. “Undoubtedly the powers of the federal government have grown, have even grown enormously, since the creation of the government, and they have grown for the most part without amendment of the Constitution. But they have grown in almost every instance by a process which must be regarded as perfectly normal and legitimate. The Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life. As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigencies and the new aspects of life itself. Changes of fact and alterations of opinion bring in their train actual extensions of community interest, actual additions to the catalogue of things which must be included under the general terms of the law.…”17 Again, Hobbes would approve. As Hobbes wrote, “So that it appeareth plainly, to my understanding, both from reason and Scripture, that the sovereign power (whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocratical commonwealths) is as great as possibly men can be imagined to make it.…” (135)