This is a little long for a blog post. It wasn't originally intended to be one. It was written almost six months ago and over that time was submitted, in various revisions, to four conservative/Catholic online publications. None of them wanted it (actually, none of them even acknowledged it with a rejection, which I guess is the state of online publication these days). So I'm posting it here, where at least a few people will see it. It was written before the reversal of Roe v. Wade, which has brought out more explicit and fervent rejection of the constitution on the left. I saw a link to a story at The Atlantic, a magazine I was once willing to pay to read, called The Constitution Isn't Working. I only saw the headline, but that seems enough.
A REPUBLIC, IF WE WANT IT
"A republic, if you can keep it." I suppose everyone knows that famous remark, said to have been made by Benjamin Franklin to a woman who asked whether the Constitutional Convention had created a republic or a monarchy. (The details of the story vary, but that seems to be a common version). The remark gets a lot of exercise, generally as a scolding of political opponents charged with being the menace against which Franklin warned. But there are good grounds for wondering now if the more pertinent question is not whether we can keep Franklin’s republic, but whether we want to.
I don’t know what potential failures Franklin had in mind, but for some time now one very clear possibility has been the reduction of the constitution to an empty set of words that mean whatever the Supreme Court says they mean. That possibility has long been foreseen by at least one side of the long-running argument between those who believe that the constitution should be interpreted straightforwardly as written, and those who believe that changing times warrant very loose interpretation.
Conservatives have naturally, almost by definition, been in the former camp, liberals or progressives in the latter. Many years ago when I was in high school I had a conservative civics teacher who truly valued free discussion and organized a formal debate on this question. As a teenager with leftward inclinations, I instinctively took the progressive side: conditions in the second half of the 20th century required creative new (or new, at least) interpretations of laws written two hundred years earlier, and so forth. “Spoken like a true liberal!” I recall my teacher saying triumphantly, and I was mildly pleased. But even as I made my argument I was troubled by the challenge posed by my opponents: what would or could be the limits of this flexibility? How and by whom might they be set?
It often seems that progressives do not in fact recognize any real limits on the license to interpret, and in effect redefine, the constitution's written words. They tend to see concern for the mere letter of that document as a small-minded obstacle to the implementation of their beautiful vision. They seem to believe that the intent of the constitution is simply the promotion of the good, and that therefore what is good (i.e. what is at the moment desirable to them) is necessarily constitutional, and what is not good is unconstitutional. Lately the progressive vanguard hardly even bothers with that argument, denouncing the constitution itself as being at best obsolete, at worst an actively harmful instrument of oppression, etc., etc.
Recently (and I suppose inevitably) a similar impatience has appeared on the right, in two forms. On the populist right, many Trump enthusiasts feel frustrated by institutions and politicians that seem forever retreating under progressive pressure. The idea that Donald Trump is in any serious sense "literally a fascist" is pretty ridiculous, but he does seem to have the temperament of an autocrat (not every autocrat is a fascist). And his most zealous followers don't seem to mind. They just want him to deliver a blow to a ruling class which no longer bothers to hide its contempt for them. That “he fights” is more important to them than his fidelity to the principles of the republic. It isn’t so much that they disregard, much less reject, the constitution as that they don’t think in those terms.
And on the more sophisticated right are those described, by themselves and others, as post-liberal: academics and pundits, many of them Catholic, who believe that the classical liberal foundation of the American system is intrinsically and fatally flawed, its metaphysical agnosticism making it unable to resist moral and cultural pathogens that are killing liberalism itself and becoming repressive in its name. I’m sympathetic to this position, and in fact said similar things more than twenty-five years ago in the pages of the little-known and short-lived Catholic magazine Caelum et Terra. I referred there to the Supreme Court as “nine popes without a God,” and I did not intend it as a compliment. But I am cynical and pessimistic by nature and figure that any replacement of the liberal order is likely to be worse, at least in its first century or two. I would rather see the liberal constitutional order revivified than abandoned, though cool reason gives me little hope that it will be.
Through the rhetorical mists we can discern on both sides a drift toward two types, maybe archetypes, of non-democratic government: the benevolent monarchy, and the council of the wise. As to the first: in every presidential election we hear people talk as if the president were a national father figure whose wisdom and power can, should, and will make everything all right, if only we will do as he says. Obama's more fervent supporters went wildly in this direction, and so have Trump's. Both tend to make striking—and to my eyes embarrassing—emotional displays of their devotion to the leader and willingness to serve him.
And as to the second: people now commonly talk of the Supreme Court as if it were a council of tribal elders endowed with a fundamentally unrestricted power to decide, on the basis of its own wisdom, what is best for the whole tribe. Progressives especially, but not only, tend to speak of the Court as if its job is to consider present circumstances, needs, and wishes, and to issue commands based on their judgment of those rather than on the constitution, closing the question with "we have spoken": in short, to make law, not to apply it.
And maybe we are indeed drifting toward one of these types, or a combination of them, adding our own technocratic touch in the form of advice and consent from “experts” whose acquisition of expertise clearly does not provide them with good judgment. And maybe that's because they are natural, and self-government is not. For years now I have had an unwelcome but persistent suspicion that self-government is an unnatural thing, something of a fluke when achieved, difficult to preserve, and probably short-lived. If that's true, then the U.S. has done very well to have lasted as long as it has. And it's no surprise that the machinery is now deteriorating, possibly beyond repair.
My use of the word "machinery" is significant. Our constitution and our system are rationalistic and somewhat mechanistic, with many moving parts driven by forces which are often in opposition, but harnessed and balanced to do the work of governance. Two gears do not turn together freely in a spirit of mutual support: one forces the other to turn, and without the resistance of the second the first would spin freely and uselessly. There is wear and tear on the parts, and like all machines this one will eventually fail without proper maintenance. I don’t think anyone would seriously claim that ours is now well-maintained.
Possibly the most significant aspect of this neglect is the indifference and ignorance of the putative citizenry, many or most of whom can hardly now be called "citizen" in any sense of the word richer than "resident." (That this is not altogether an accident is another and important topic, too large for this little essay.)
Maybe this is just a matter of the peoples of the modern democratic republics settling back into the normal human modes of organization. Maybe these modes are, so to speak, organic, developing naturally out of the nature of the human, in a way that our republican machinery, based on abstract principles, does not. Both the Catholic and Orthodox churches have always had some sort of part-monarchical, part-conciliar organization, and have lasted quite a bit longer than any republic.
I return to the question: do the American people of the twenty-first century A.D. want to keep their republic? And if they do not want it, what do they want in its place? Do they yearn in their hearts for one of those more ancient, perhaps more human, modes of governance? Is this the turn of events that Walker Percy describes in the opening pages of Love In the Ruins as a stalled roller-coaster starting to move again, with “...the clank of the old historical machinery, the sudden jerking ahead of the roller-coaster cars as the chain catches hold and carries us back into history with its ordinary catastrophes….”?
Do these tendencies, so puzzlingly atavistic to those who believe in the inevitability of rational progress and in “history” as a deity on whose right hand they sit, suggest that our system is in some degree contrary to human nature? The Israelites asked for a king, and the prophet Samuel explained in the most definite and vivid terms why this would be a bad idea: see 1 Samuel 8:10-18. The warning was dire. But they insisted, and got their way. And Samuel was right, and it turned out badly for them.