Written by E. D. Parish
This article was initially written for the National Review Institute’s William F. Buckley Jr. Essay Contest. This target audience should be kept in mind while reading this piece.
I think it’s difficult for anyone alive today to suggest that the American government today is more bound to the Constitution than the America of 50 years ago—although this is certainly faint praise of our past government. In fact, taking the recent history of American political development as a whole, not only has our republic not returned back to its constitutional roots, the government has grown further unmoored from its founding document; worse than mere stasis, there has been continued degeneration in the protection of the people from the predations of government. Rather than carefully detailing the successes of the Federalist Society and the Originalist movement or the vast expansions of unchecked government power under the Covid regime and the War on Terror, I’m far more interested in why the Constitution, with each passing day, seems to bear less weight in the minds of our rulers—what has gone wrong in our polity such that William F. Buckley’s attempted move back to the Constitution was such a failure?
I submit that the cause of the failure of such a movement stems from the misunderstanding of the Constitution, and power in America more broadly, as well as subsequent improper tactics of resistance. The first mistake is that, in consecrating the Constitution, conservatives have lost sight of the actual effects of our founding document. The Constitution does not predetermine America’s path. If two engineers following the same set of documents built Chartres Cathedral and The Colosseum, we’d be forced to conclude that the documents held very little strength over the building’s actual construction. Similarly, if an alien read de Tocqueville and then traveled our country in the present day, his only conclusion could be that America today resembles America of the 1830s in the same way that the Holy Roman Empire resembled the Roman Republic—in name only.
Paradoxically, realizing that The Constitution does not actually define the nation is the first necessary step in restricting the federal government and making it more constitutional. The Constitution is not a magical document. If someone violates it, it will not grow teeth and stop him. (If it could, it would need a lot of teeth.) Contrary to popular fiction, a country cannot be ruled by mere procedure; decisions are made and interpretive frameworks are implemented by men, with all their foibles and parochialisms. Taking an example from John Hasnas’ The Myth of the Rule of Law, does Affirmative Action violate Title VII of the Civil Rights Act of 1964? It certainly violates the plain text of the law, and yet, as the Supreme Court established in 1892, “It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because [it is] not within its spirit nor within the intention of its makers.” So which is it? Or, more importantly, echoing Carl Schmitt, who decides?
It is this unwritten (lowercase c) constitution which actually defines the character of our nation. America is not a mere document, nor is it set in stone, and it could never be derived from a priori reasoning. America is a particular country shaped by a particular history of men and their decisions. This is an insight which has been gained by people ranging on the political spectrum from the critical legal scholars all the way to Joseph de Maistre, and the contemporary American conservative movement will be in much better standing once it digests this lesson as well. In a very real way, Jefferson got his wish when he said that a Constitution must expire after 19 years, even if the proponents of this sentiment don’t realize it.
What happens once we’re able to realize the essentially organic character of our nation? We’re now able, in the tradition of James Burnham’s book The Machiavellians, to analyze the real, rather than the merely formal, nature of American politics. We can set aside the stories told about where power lies and discover its real hiding place. We can unveil how, despite the homages to limited government, the checks and balances continuously fail to either check or balance. (Do government actors still pretend the government is limited? I remember hearing about this growing up, but I suppose maintaining this fantasy eventually became untenable?)
I will briefly outline the structure of power and some of its mechanisms. In the formal structure of our republic, there is bottom-up power and top-down power. Elections determine the constitution of our ruling class from below, the ruling class makes decisions from above, and the ruling class is expected to limit itself due to internal struggle and in accordance with the Constitution. If this arrangement of governance ever existed, I’m not sure. In any case, in the real world, both the bottom-up and top-down formal mechanisms of power are managed by parasitic organs. The former is guided—as outlined by a wide array of figures such as Walter Lippmann, Edward Bernays, Louis Althusser, and Theodor Adorno and Max Horkheimer—by a confluence of public and quasi-private entities such as journalism, entertainment, and education. What one can think, logically as well as socially permissibly, is far more strictly managed than any story about the “marketplace of ideas” would lead one to think. Top-down power is, on the other hand, managed by a collection of experts and bureaucrats. Which bills even reach the eyes of a “lawmaker” are largely vetted and edited by NGOs and “experts”; then, of course, once a law gets passed, certainly Mitch McConnel and Diane Feinstein aren’t handling the minutiae of a trillion dollar omnibus spending bill—legions of government employees prod and massage, soften and accentuate, until the only thing added by voters and legislators is legitimacy. This political pincer movement would certainly seem to account for the 70% gap between Congress’ approval rating and its incumbency rate. For all of the rhetoric about the end of democracy, let’s ask our aforementioned alien friend to compare Trump’s presidency to that of Obama’s or Bush’s. As Ludwig Wittgenstein writes in his Philosophical Investigations, “a wheel that can be turned though nothing else moves with it, is not part of the mechanism.”
Now that we’ve sketched out a picture of where power lies, we can take a moment to discuss how it expands; I’ll point to two tactics, drawing on the work of Carl Schmitt and, one of my favorite writers of all time, Bertrand de Jouvenal. The first is to… to solve problems? That doesn’t sound so sinister, but then again, if acquiring power sounded sinister, it would be much harder to accomplish. The central authority identifies grievances of the populace and uses these as justification for taking more control on for itself, usually by dismantling intermediary institutions in the process. There are countless examples: consider the expansion of public education, social security and welfare, the loosening of state’s rights, and even the Civil Rights Act—each of these policies can be evaluated on their own merits as prudent or imprudent, but the fact that they expanded the powers of the federal government is undeniable. Rarely, if ever, is there a strictly democratic movement which benefits the masses without also enriching or empowering a subset of the elite class; one need only ask why the position of Martin Luther King won out over the more popular stances of Muhammed Ali and Malcolm X.
Another tactic for the expansion of state power is initiating a state of exception. Again, there are countless examples in recent memory: the 2007-2008 financial crisis, The War on Terror, the Covid lockdowns, the Canadian trucker protests, etc. In each of these cases, the state initiated a state of exception and (temporarily) expanded its power and later relinquished some, but never all, of its newfound power—what kid would want to give away a brand new toy? Taking advantage of man’s adaptive nature, each of these moves served to push the upper boundary of what the public views as an acceptable amount of power for the government to take. In the immortal words of Rahm Emanuel, “Never let a good crisis go to waste.”
With a cursory understanding of where power lies and some of the tools at its disposal, we can see how, via a journey of a thousand steps, the government has evolved into the massive leviathan we know today yet is unrecognizable throughout history, undreamt of by even the most bloodthirsty Napoleon. How then, do we begin to dismantle this behemoth and progress towards the goal of government limited within the confines of the Constitution? William F. Buckley Jr. is famous for his quote about a conservative being one “who stands athwart history, yelling Stop.” Unfortunately, in reference to the powers of the federal government, many conservatives thought Buckley meant “slow down” and scant few dared to interpret him as saying “turn around.” The tenth amendment was abandoned many decades ago, but its faint glimmer remains in the rearview mirror.
No doubt restraining government power will be a herculean task. A glass will break when dropped, but it will not put itself back together in the state of nature; resisting the centralization of power is like resisting the force of entropy. One crucial problem is that one of the primary ways in which the government assumes power is by creating dependencies. Many are familiar with the phrase, “Give a man a fish, and you feed him for a day; teach a man to fish, and you feed him for a lifetime,” but few are familiar with the government motto, “Give a fisherman a fish, and he’ll cease to fish for himself.” It’s truly difficult to imagine the levels of personal and local self-sufficiency of Americans only a century ago. As David Beito rigorously outlines, mutual aid has been lost in favor of the welfare state, and reclaiming the former will only come through much hardship.
If you wish to resist the centralization of power, you must act contrary to its nature by embodying the principle of Subsidiarity, that is, much like the idea of Federalism, the notion that tasks should be performed by the smallest effective unit of authority. This means deferring to the family, the community, the town, the county, the state, and finally the federal government—in that order. It means reestablishing bonds of loyalty within local communities so that the individual is empowered to reject the help from/dependency on higher levels of authority. It means negating and subverting liberal notions of identity and reasserting man’s social nature via the instantiation of intermediary institutions and fraternal organizations. It means wholeheartedly supporting efforts to strengthen cities and states against the predations of the federal government and backing all morally just projects which decentralize power and further the principle of Federalism. A central power will never willingly restrict itself—it will only be resisted by the efforts of an opposite force—and thus it is incumbent on the citizens to build foundations to constrain its expansion. If it is to be done at all, it will be done, not by words on a page, but through the actions of men.