One Country - Two Constitutions?

by

        M. Richard Maxson

       At the end of the 19^th century, with the rise of the industry, the elite began to theorize in the political and social ideas of the time. They debated the allure of Socialism, which has its origins in the 1789 French Revolution, then with the publishing of the Communist Manifesto by Karl Marx & Friedrich Engels in 1848 expressing what they termed "scientific socialism." There was even more debate of the pros and cons and comparisons to our Constitution. In the last third of the 19th century, when social democratic parties arose in Europe, drawing mainly from Marxism there were those in this country who wanted “change.”

       Before his election to the presidency in 1912 Woodrow

Wilson was a believer in these leftist views of government. As a young scholar he had contemplated a series of constitutional amendments to reform America's national government into a kind of parliamentary system. This went completely against the what Americans had fought so hard to endure in our civil war. He quickly realized that is planned to amend the constitution was going nowhere.

     He then went in a slightly different direction to “change America”. He created the idea of a “living constitution”. This “new” constitution, with it’s roots in the leftist political and social science of the late 19th century was born. Wilson believe the old constitution was just that old. It was difficult to amend. The liberal constitution would be easily amendable to experimentation and adjustment. While keeping the outward forms of the old constitution the idea of living constitution would change utterly the spirit in which the original constitution was understood. This goal of a “new” constitution has been at the very forefront of progressive politics for over 100 years.

      What is the difference in the Progressives approach to our country? There are normal politics and there are regime politics. Normal politics takes place within a political and constitutional order and concerns the means not the ends. Regime politics is about who rules and for what ends or principles. It questions the nature of the political system itself. Who gets the rights? Who gets to vote? What do we honor or revere as a people? With regime politics, all traditions are out the window. Nothing matters except from now... onward.

      This was the beginning of America slowly evolving into two peoples. The patriotic conservative vision of America is based on the original constitution. This is the Constitution grounded in natural rights of the Declaration of Independence. It has been transmitted to us with amendments and is still considered the original constitution. Those who favor this are know as “originalists.”

      The other vision is based on what Progressives and liberals for 100 years have now called the living constitution. They believe that the original constitution is dead, or at least on life support, and in order to remain relevant to our natural life, the original constitution must be infused with new meanings and new ends and therefore with new duties, rights, and powers. An example - new administrative agencies must be created to circumvent the structural limitations that the original constitution imposed on government. Rather than the people deciding through constitutional amendments, these new agencies would swiftly make the changes those in power deem necessary without debate.

      There's also a vast divergence between liberal and conservative understandings of the first amendment. Liberals are interested in transforming free speech into what they call equal speech ensuring that no one gets more than their fair share. The Democratic party's platform calls for amending the first amendment. There's also a big difference between the liberal constitutions freedom from religion and the conservative constitutions freedom of religion. In a living constitution there is no second amendment.

      Until the 1960s most liberals and progressives believed it was inevitable that their living constitution would replace the conservative constitution through a kind of slow motion evolution. But during the sixties defenders of the old constitution began to fight back and began to call for return to America's first principles. The conservative campaign against the inevitability of the living constitution gained steam and when it became clear to the left by the 1970s and 1980s that the conservatives and their constitution were not going away, the war was on.

      Confronted by the growing popularity of the conservative constitution and American originalist patriotism, the left radicalized. As a result the gap between the left the living constitution and the conservative original constitution became a gulf. We became two countries. Each constitutionally different. With this, America may be leaving the world of normal politics and entering the dangerous world of regime politics, a politics in which our political loyalties diverge more and more into separate camps, much as they did before the Civil War.

      How do we get back to thinking like one country? How can America's political civil war be resolved. According to Charles Kesler, professor of government and political philosophy, “One can think of only five possibilities. The first if some jarring event intervenes, a major war or huge natural calamity, it may reset our politics. A second possibility is that we can change our minds. Persuasion are some combination of persuasion and moderation may allow us to end or at least endure our great political division.”

      Since 1968 the normal has been a divided government. For the last 50 years no president has persuaded the American electorate to embrace his party as the national representative, of their vision of the constitution as the norm, worthy of long-term patriotic allegiance.

      “The third solution to our national problem would be a vastly reinvigorated federalism. A return to our roots. Unfortunately, since in the previous century we have abandoned so much of traditional federalism, it is hard to see a federalism could be revived at this late juncture,” Kesler lamented.

       “The forth possibility is secession, a danger to any Federal System and something about which James Madison wrote at great length and the federalist papers. With any Federal System there's a possibility that some states will try to leave it. Secession would be extremely difficult for many reasons. Not the least is that it could lead to the fifth and possible worst possibility, civil war.”

      The American constitutional future seems to be approaching some kind of crisis. A crisis of two constitutions. Let us hope that we and our countrymen will find a way to reason together and compromise, allowing us to avoid the worst of these dire scenarios. Our citizens, our founders, and our history, our country as we have known it, depends on it.