On July 22 of this year, the Washington Times published, as the weekly installment of its “Civil War” section, a long article by a gentleman named Mackubin Thomas Owens, described as “professor of strategy and force planning” at the Naval War College in Newport, Rhode Island, under the headline, “Secession’s apologists gut Constitution, history.” The burden of the article was to argue that both the Confederate defenders of secession in 1861 and their intellectual descendants today (in what is sometimes dubbed the “neoconfederate movement”) were and are full of beans. Professor Owens, a disciple of Lincoln apologist Harry Jaffa, expressed the view—shared by Alexander Hamilton, John Marshall, Daniel Webster, and Abraham Lincoln, among others—that the U.S. Constitution, far from being a “compact among the states” as the Confederates claimed, is really an act of a single united people. It follows from that view, of course, that neither “states’ rights” in any significant sense nor secession, let alone such doctrines as “nullification,” are constitutionally valid; that the seceding states of 1861 were engaged in acts of treason and rebellion; and that those who support their doctrine today are not only in error but also probably of dubious loyalty themselves.
It was not the first time that the Times, whose editor likes to describe it as the “official voice of the conservative movement,” gave prominence to what is generally (but not very usefully) known as the “nationalist” theory of the Constitution. In 1998, the editorial page published a long letter from a reader articulating the same view of the Constitution, which was challenged in a subsequent letter, published some days later. In the case of the Owens article this year, however, no one seems to have bothered to question the accuracy of his interpretation.
Yet the truth is that Professor Owens—as well as Hamilton, Marshall, Webster, and Lincoln, not to mention Professor Jaffa—is the one who is full of beans. The “nationalist” (let us, for the sake of clarity, call it the “unitary”) interpretation is wrong; indeed, it is so obviously wrong that its partisans have to rely almost entirely on unsubstantiated assertions to make the case for it.
My purpose, however, is not to rehearse the argument for the compact theory or to refute the unitary interpretation. The simplest way to substantiate the compact theory is to point to both the content and the grammar of the Declaration of Independence, in which the “representatives of the United States” declare that “these united colonies” are “free and independent states” and assert that “they” (the “states”) possess “full power . . . to do all other acts and things which independent states may of right do.” The point is that the Declaration does not establish a unitary state but recognizes 13 states, which are consistently spoken of in the plural throughout the document (as they are in the Constitution). The other obvious point is that at no time did the American people as a whole vote on national independence, adoption of the Declaration, or ratification of the Constitution, nor indeed do they so vote today. They assented to independence, the Declaration, and the Constitution as and by the states, and even today there is no single elected federal officeholder who is chosen by the vote of all the American people apart from the states. This is clearly true of senators and congressmen, but it is also true of the president, who remains chosen by the votes of the Electoral College, which is appointed by the states. Moreover, it is three fourths of the states that are able to amend the Constitution, not a majority or super-majority of the American people as a whole. The primacy of the states is and always has been obvious, and there is little more to be said about it.
Nevertheless, as Professor Owens’ article and similar expressions make clear, the compact theory of the Constitution, regardless of its historical and legalistic correctness, is virtually defunct as an operative doctrine of constitutional interpretation; and with its consignment to oblivion, the rest of the Constitution has vanished as well. Although there seems to be some revival of interest in the Tenth Amendment, states’ rights—the heart of real federalism—died with the compact theory. States’ rights make no sense if the compact theory is false, the union was really formed by a single act of the whole people, and states are mere administrative units of the central government. Along with states’ rights vanishes much of the rest of the Bill of Rights, at least in its original and correct function as a restraint on the federal government, as well as any other restraint on big government. If the federal government is the direct representative of the “people” as a whole, then it can do pretty much whatever it wishes to do, and we are delivered into territory perilously close to Rousseau’s General Will. The use of the Commerce Clause and the “Incorporation Doctrine” to overturn state and local laws has largely completed the process. Today, the United States simply no longer has a constitution at all, apart from what the ruling class and its running dogs on the Supreme Court say is the constitution. Moreover, so defunct is the real Constitution that neither most academies, like the learned Professor Owens, nor most self-described conservatives, such as a good many of my former colleagues at the Washington Times, any longer know what the real Constitution was or even that there used to be a Constitution quite different from the one that now is purported to prevail.
There is, of course, sort of a constitution, and you may discover something about what it says by listening to the college students surveyed several years ago who believed that the statement “From each according to his ability, to each according to his need” came from it. This passage from the Communist Manifesto, which served as the official motto of the Soviet Union, is in fact a fairly accurate description of what the current constitution holds. How the new constitution came to be adopted has been the subject of several expositions in recent years by, among others, Garry Wills, James MacPherson, and Columbia University law professor George Fletcher.
Last year, in this space, I quoted Professor Fletcher’s view, published in the New Republic in 1997, that the original Constitution was abolished by the American Civil War and that Lincoln’s Gettysburg Address “signals the beginning of a new Constitution” in which “equality, absent from the original document, comes front and center. . . . the United States evolves from an elitist republic into a democracy ‘of the people, by the people, for the people.'” Professor Fletcher’s view is almost identical to that of Professor Jaffa and his disciples on the “right,” except that they claim that Lincoln merely restored the real Constitution. Professor MacPherson argues much the same as Professor Fletcher, that Lincoln was a “revolutionary statesman” who presided over the “Second American Revolution,” as does Garry Wills, who writes that “Lincoln was a revolutionary in another sense as well, the one Willmoore Kendall denounced him for—he not only put the Declaration in a new light as a matter of founding law, but put its central proposition, equality, in a newly favored position as a principle of the Constitution (which, as the Chicago Times noticed, never uses the word).”
What is perhaps most important about the revolution that abolished the old, real Constitution and established the new one is that the revolution has been so complete that its defenders and apologists do not even feel the need to explain how a Constitution purportedly founded on the consent of the governed could be abolished simply by acts of force in the course of the Civil War and a new one, encapsulated in the Gettysburg Address, enthroned without any pretense of amendment or ratification. So irrelevant is the real Constitution to such scholars as Mr. Wills that he can glibly acknowledge that “equality” is the main principle of the new constitution even though the word was entirely absent from the original one. The apologists for the new constitution know that the destruction of the old and real Constitution has been so complete that they do not even need to pretend that the transition to the new one took place in a manner consistent with the procedures prescribed by the old one. The old Constitution was the product of Southern slaveowners and allowed for their political predominance, and because it did not mention “equality” and was, in fact, anti-egalitarian in many of its premises and provisions, it has therefore been discredited by the animating doctrine at the heart of the new constitution.
There is little doubt that the “New Constitutionalists” are essentially correct. Although both James J. Kilpatrick and the late M.E. Bradford correctly argued that the old Constitution survived the Reconstruction amendments and the Supreme Court’s interpretations of them, the Civil War nevertheless mortally wounded the Old Republic and the Constitution that defined it, and Lincoln, whatever his role and whatever his intentions, has become the human symbol of this revolution, just as Lenin and Castro are symbols of other revolutions. The Old Republic and the real Constitution lingered on until the Roosevelt Supreme Court and its successors killed them off for good.
But the new constitution did not displace the old one simply because Lincoln and his armies smashed the old Constitution and its defenders. The new constitution flourished because it served the purposes and interests of the emerging social forces of the nation, mainly what the Marxist scholar Barrington Moore, Jr., called “the last capitalist revolution,” the leaders of which quickly evolved into the plutocratic ruling class of the late 19th and early 20th centuries. The political changes and their military enforcement were merely the icing on the underlying cake of social and economic transformation and the new elite that gained power from it.
What was involved in the death of the old Constitution, in other words, was a bit more than a change of mind on the part of a lot of Americans or a plot carried out by a handful of ambitious and unscrupulous men. If the decline and fall of constitutional government in the United States had been only that, it might still be possible to change men’s minds back, persuade them of the virtues of the old Constitution, and restore it. But the victory of the social, economic, and political revolutions that swept it away suggests that one of the main reasons for the failure of the old Constitution was that a declining number of social interests found it a useful instrument of government. In virtually every confrontation in early American history between the compact theory and the unitary theory, the compact theory lost: The Federalists prevailed over the Anti-Federalists; John Marshall’s views triumphed over those of his critics; Andrew Jackson triumphed over John C. Calhoun in the nullification controversy; and, of course, the Union prevailed over the Confederacy. And one reason for these victories is that lots of people stood to gain a great deal from a unitary government that could unify the country, suppress centrifugal pressures, establish a national market for profitmaking, and prevent the nation from disintegrating. Only the Southern states retained a strong vested interest in a decentralized republic and the doctrine of states’ rights that helped guarantee it; and by the early 20th century, even these states were willing to compromise on their rights when they stood to gain from doing so. By the time of the civil-rights movement and its revolutionary demand for the fulfillment of Lincoln’s egalitarian rhetoric, the South’s resistance to the unitary state had become so compromised by its own hunger for farm subsidies, defense contracts, highway funds, and other federally financed internal improvements that its insistence on states’ rights principles as the reason for its opposition to racial integration could no longer be taken seriously.
The old Constitution, in other words, died because hardly anyone in the United States really wanted it to survive, and those who did were often not very serious about it and eventually became powerless to keep it alive. Today, it no longer matters how cleverly we refute the unitary interpretation or articulate the compact theory, because the document to which they pertain is effectively defunct, and its death is obvious not only in the triumph of the civil-rights movement but also in the victory of every constitutional fantasy concocted by the Supreme Court.
Paleoconservatives today, who are virtually defined by their adherence to the Old Republic established by the original and real Constitution, therefore need to make a decision. Their appeals to the old Constitution have now become not only politically and juridically irrelevant but have acquired the stale and arid odor of antiquarianism. Their cause is no longer well served by regurgitation of archaic constitutional niceties and invocations to constitutionalist idols. The decision paleoconservatives need to make is whether to abandon all appeals to constitutionalism and make use of alternative modes of argumentation for what those appeals have traditionally tried to defend, or whether, acknowledging the death of the old Constitution, they should begin working for a new constitutional structure that seeks to replicate as many of the positive attributes of the old Constitution as possible, including its guarantees of federalism and local autonomy. Which ever course they choose will be no less radical and revolutionary than the path that led to the destruction of the old Constitution.
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