The U.S. Constitution Is Not Broken and It Should Be Defended

By M. D. Aeschliman

Sunday, September 04, 2022

 

It pains me to disagree with Samuel Moyn, from whose fine books on human rights I have learned so much. Yet I believe that the recent New York Times essay by him and R. D. Doerfler, “The Constitution Is Broken and Should Not Be Reclaimed” (New York Times, August 19, 2022), is fundamentally wrong and mischievous.

 

The recent reevaluation and criticism of the slave-owning American Founders — especially Jefferson, Madison, Patrick Henry, and even George Washington — is long overdue. Annette Gordon-Reed’s two books on Jefferson and his black slave and concubine Sally Hemings and their children comprise excellent historical revision. The related, overdue upgrading of Alexander Hamilton’s reputation in Lin-Manuel Miranda’s popular musical is a welcome surprise. These are valuable examples of the perennial civilizing process of personal and national self-knowledge that comes from reflecting on American history.

 

But despite a few useful suggestions (e.g., politically breaking up the big states), Moyn and Doerfler in their essay really reject the deepest and most important ranges and reaches of history and the painfully won wisdom available through it. The preamble to the Declaration of Independence, beginning by insisting that all men (implicitly and, in the long run, all persons) are “created equal and endowed by their Creator with certain inalienable rights,” is arguably the acme and distillation in short form of the noblest traditions of Western and world politics and ethics. As Harry V. Jaffa pointed out, the Declaration itself was enshrined by Congress in 1878 as the first “organic law” in the U.S. Code, to prevent racist-segregationist backsliding (see Richard Cox, Four Pillars of Constitutionalism: The Organic Laws of the United States, 1998) and to restrict emergent intellectual, utilitarian, and even democratic fads such as Darwinian racism, which had been foreshadowed by Jefferson himself.

 

In writing the Massachusetts constitution of 1780, John Adams promoted “a government of laws, not men,” and the deliberations of Hamilton and Madison in The Federalist Papers provide perhaps the finest existing introduction to political thought in the literature of the world. Through the crucible of the Civil War and the leadership of Lincoln, our greatest statesman (and “the American Shakespeare” as a writer), the U.S. Constitution itself, with the purging and improving of it (13th, 14th, and 15th Amendments), really promoted over a large jurisdiction, for the first in history, an incipient “government of laws” — and higher, universal, moral law — as opposed to the egotism, chauvinism, and self-interest of individuals and groups, whether elites or majorities. Our finest leaders have always seen this — from Adams, Hamilton, and Lincoln to Franklin D. Roosevelt, Eisenhower, Martin Luther King, Reinhold Niebuhr, Earl Warren, Jimmy Carter, Pope John Paul II, Ronald Reagan, and Daniel Patrick Moynihan.

 

It is especially regrettable to weaken and confuse Americans’ loyalty to the constitutional tradition, as Moyn and Doerfler seek to do, in the face of the contemporary challenge of Trumpery. The Constitution is no utopian document — it contains no illusions about human nature: It implicitly acknowledges the unjust, sinful, and tragic character of much (most?) human history. The political scientist Martin Diamond quotes from Federalist 51 what he calls “the most remarkable and revealing single sentence” in the whole series of essays: “This policy of supplying, by opposite and rival interests, the defect of better motives . . . might be traced through the whole system of human affairs, private as well as public.” In hewing a path between anarchy and tyranny, between utopianism and cynicism, the Constitution has educated a nation over the long term in ways that prevent, or make difficult, both individual despotism and tyrannical majoritarianism.

 

Not to see how these constraints have helped save the American polity from the frequent lies of Donald Trump in his four years in office and from his incitement to insurrection on January 6, 2021, is to miss a fundamental point and lesson about recent and contemporary American history: A Goebbels-type “big lie” about the election outcome was ineffectual and a coup d’état was prevented. Honorable legislators and citizens in states such as Arizona and Georgia did their jobs in the light of a fundamental trust in the rightness of the country’s founding documents, institutions, procedures, and the rule of law that they instantiate.

 

Yet liberals such as Moyn and Doerfler fundamentally ignore the massive evidence of human egotism, cupidity, vice, folly, and weakness that the study of history displays and the daily news constantly documents. The nation founded and regulated by the Declaration of Independence, the U.S. Constitution and its amendments, and American political institutions is politically the great success story of modern history. Ask the immigrants clamoring to get in (of whom my own father, a poor European orphan, was one exactly one hundred years ago at Ellis Island). Our awareness of the nation’s many deficiencies ought only to heighten our devotion to the political and ethical achievements and standards by reference to which we discern and critique those deficiencies and strive to correct them.

 

Perhaps because I have lived so much of my personal and professional life — over fifty years — going back and forth between four European countries and the United States, I feel a keen sense of different cultural varieties and legacies and the perspectives of non-American history. For most of human history, and for much of the world today, life has been an intermittent nightmare of injustice, poverty, and misfortune. The American theologian and moralist Reinhold Niebuhr (1892–1971) is perhaps the greatest modern intellectual figure to meditate on these facts and their implications, yet his very sobriety has been unwelcome. The “soft utopianism” of John Dewey (1859–1952) and his disciples has saturated our culture and educational system with false estimates and false hopes, a fact deplored by the historian Richard Hofstadter in his Pulitzer Prize–winning book Anti-Intellectualism in American Life (1963). Dewey’s former student, friend, and ally Sidney Hook (1902–1989) initially criticized Niebuhr’s sense of the world in favor of Dewey’s naturalism, but the horrors of 20th-century Western and world history finally led him to a great appreciation of Niebuhr’s accuracy, sobriety, and eloquence about human nature and history, and the very nontheological philosophical naturalist Hook came to call the world since 1914 “the Second Fall of Man.” Of the same period the distinguished Anglo-Jewish philosopher Sir Isaiah Berlin (1909–1997) wrote toward the end of his life: “I have lived through most of the twentieth century without, I must add, suffering personal hardship. I remember it only as the most terrible century in Western history.”

 

John Adams spoke of “a government of laws, not men,” because no individual or group of persons is good enough to be trusted with limitless freedom or power. The best American Founders saw this, and their documents and institutions reflect this disillusioned wisdom, a prerequisite for proximate improvements and some degree of human flourishing. The realization of the pervasiveness of human egotism, “the tracing of the defectiveness of human motives,” to paraphrase Publius in Federalist 51, did not lead to despair or anarchy (or Jacobin “totalitarian democracy,” in J. L. Talmon’s haunting phrase), but to those constitutional conceptions and institutional arrangements perhaps most memorably articulated and defended by Abraham Lincoln. To underestimate and undervalue their success over a period of nearly 250 years is a regrettable example of present-mindedness, historical and geographical parochialism, and learned liberal foolishness.