The left’s long war on the Constitution

By Jon Guze

Raleigh, NC – The United States was founded on the principle that government exists to protect the natural rights of the governed, including, especially, the natural right to liberty. The Declaration of Independence says so explicitly. The Constitution — signed 233 years ago today — is clearly an attempt to give practical expression to that principle.

The Constitution is replete with provisions designed to limit governmental power and protect citizens’ rights. It is predicated on the presumption of liberty to such an extent that it is impossible to make coherent sense of the document as a whole without taking that presumption into consideration.

Unfortunately, by the beginning of the 20th century many self-styled American “progressives” had turned against the ideal of limited, constitutional government. What they wanted instead was a system of unlimited centralized control by wise and beneficent technocrats.

In speeches made during the election of 1912, both the Democratic candidate, Woodrow Wilson, and his Progressive Party opponent, Theodore Roosevelt, campaigned openly against America’s founding ideals and founding documents. Roosevelt dismissed the presumption of liberty as “a bit of outworn academic doctrine,” while Wilson complained that, “Some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4th, 1776.” Both insisted that, for the good of the country, American government must be freed from the restraints imposed by the Constitution.

Support for the progressive approach spread steadily. By 1920, the progressives had achieved one of their primary policy goals — the prohibition of alcohol — and in 1928 a decision by the most progressive Justice on the Supreme Court, Oliver Wendell Holmes, cleared the way for another — involuntary sterilization of people they considered unfit to breed.

 To achieve such results, progressives had to overcome numerous constitutional impediments, and because those impediments remained the law of the land, some of their attempts to regulate Americans’ lives were blocked by the courts. In spite of this, however, they never tried to overthrow the Constitution through a coup or revolution. Nor did they attempt to change it by means of the amendment process provided by the Constitution itself. Instead, they sought to manipulate it through a progressive theory of judicial interpretation.

 According to that theory, laws in general and the Constitution in particular should be regarded as “living” documents, the meaning of which could and should be manipulated to suit changing conditions and changing ideas of what is desirable. The theory also held that, rather than trying objectively to interpret and enforce the checks and balances specified by the Constitution, courts should simply presume the constitutionality of any legislation that was not clearly irrational. Given the extent to which the Constitution was predicated on the presumption of liberty, that was quite a stretch, and the Supreme Court resisted the progressive theory of law for a long time. Under intense pressure from President Franklin Delano Roosevelt, however, it ultimately capitulated in the 1930s, and progressive legal theory became official legal doctrine.

The result was a rough compromise between progressives and constitutionalists, which was certainly not ideal. With the constitutional impediments out of the way, the left was free to erect the regulatory state of its dreams, and it soon did. As James Copland explains in his new book Unelected, today that regulatory state employs hundreds of thousands of unelected bureaucrats and gives them the power to create, interpret, and enforce millions upon millions of rules and regulations. As a result, Americans are not only less free than they would otherwise be, they are also less prosperous and less happy. Nevertheless, we should count our blessings. The outcome could have been much worse.

Like the American progressives, many Europeans advocated a system in which wise and beneficent leaders exercised unlimited control over the people. But unlike the American progressives, those European totalitarians didn’t shy away from using violence to achieve that goal. They used lies and propaganda to frighten and polarize the public, and knowing that nothing would increase the public’s sense of fear and hostility more than the spectacle of blood in the streets, they organized violent demonstrations designed to provoke equally violent reactions from their ideological opponents and the police.

In country after country, these tactics worked. The Communists took control of Russia in 1917; the Fascists took control of Italy in 1925; the National Socialists took control of Germany in 1933; and similar radical movements took control of other countries around the world in the years that followed.

Once in power, the radicals plunged the world into an orgy of death and destruction on a scale previously unimaginable. They invaded and subjugated their neighbors, they persecuted and murdered millions of their own people, and they initiated a global war that caused the death of almost 100 million more people and left much of Europe and Asia in ruins.

It was a terrible ordeal, but it did bring at least some of the world’s people to their senses. While the persecution and murder continued behind the Iron Curtain, most people in the free world recognized that the emergence and spread of liberal institutions — modeled in many instances on the example set by the U.S. and our Constitution — was the principal reason for the unprecedented period of peace and prosperity they enjoyed before the first World War. Radical ideologies like fascism and communism were seen for what they are: tyrannical systems under which peace and prosperity — and freedom and equality — are all impossible.

Sadly, many members of America’s governing elite appear to have forgotten those lessons. A new generation of progressives has been trying to persuade their fellow citizens that America’s system of political economy was founded, not on the principles described in the Declaration of Independence and embodied in the Constitution, but on the principles of patriarchy and white supremacism. From its earliest beginnings to the present day, they claim, the system has operated remorselessly to advance the interests of white men and to harm everybody else.

As for America’s founding documents and the principles they embody, to the new progressives they aren’t merely obsolete, but like every other aspect of American civilization, they are evil. Joe R. Feagin’s Racist America, which was originally published in 2001 and is now in its fourth edition, was an early example of this radical critique of America and its institutions. The New York Times’ 1619 Project, published last fall, is a more recent one. 

The implication of this view of America and its history is clear: extirpating the evil at the heart of our system of political economy will take much more than a new legal theory or an even larger and more powerful regulatory state. At the very least, all of America’s institutions will have to be subjected to a long and painful process of radical transformation. At worst, the entire system will be demolished and replaced with something new.

The extent to which the people promoting this profoundly anti-America point of view believe their own rhetoric is not completely clear. We live in an age in which people often say things not because they believe them, but because they want to be seen as virtuous, because they want to be respected by their peers, or because they want to avoid trouble. Given that the leading proponents of this destructive radicalism are members of America’s ruling elite and enjoy all the privileges that go with that status, it seems unlikely many of them really want to tear it all down and start over.

The same cannot be said of the millions of ordinary people exposed to their hyperbolic rhetoric. The mainstream media has been relentlessly promoting such anti-American rhetoric for years; it has been frequently endorsed by politicians and by the people in charge of major corporations and philanthropies; and perhaps most important of all, it has been spreading virally through all the various forms of social media. As a result, it has been internalized by huge numbers of people all over the world.

The extraordinary extent of this global internalization became clear when millions of people poured into the streets in cities all over the world to protest the death of George Floyd in Minneapolis on May 25. No doubt many factors influenced the number and size of those protests, but one important factor was clearly the left’s incessantly repeated claim that racially biased police officers had been killing large numbers of innocent, unarmed black men without justification and without punishment. This claim was a gross exaggeration at best (see here, here, and here), and the fact that so many Americans — and so many people all over the world — accepted it without demur shows how deeply the progressive worldview had been internalized.

On the bright side, the vast majority of the Floyd protests were peaceful, and had they stayed that way they might have led to much-needed police reforms, such as reworking the doctrine of qualified immunity, banning public employee unions, and reducing our currently absurd levels of overcriminalization. Sadly, the violent protests that had already become an occasional feature of urban life have become much more common since Floyd’s death, which will make those and other criminal justice reforms much harder to achieve in the years to come. Worse still, that setback to criminal justice reform is the least of our worries as far as these violent protests are concerned.

Even before the killing of George Floyd, violent protests following police killings had significantly harmed large numbers of African Americans. A recent Harvard study found that higher crime rates in five cities where such violent protests occurred resulted in “almost 900 excess homicides and almost 34,000 excess felonies.” Moreover, while the authors didn’t provide details about the victims, given the demographic makeup of the cities themselves and differential crime rates in general, we can be quite sure those victims were disproportionately African American.

Nor is the direct suffering of those victims and their families the whole story. Those excess crimes coming on top of the riots that preceded them have undoubtedly harmed all of the residents of those cities, including particularly the African American residents of those cities, by depressing property values and discouraging investment and job creation.

While such violent protests had been mercifully rare, since Floyd’s death they have been occurring at an average rate of six to seven per day. (A recent study found that there were almost 600 violent protests in the U.S. between May 26 and Aug. 22, and that total doesn’t include the new round of violent protests that occurred after Jacob Blake was shot in Kenosha, Wisconsin, on Aug. 23.) Like the previous protests, the violent protests since May 26 will also lead to excess murders and excess felonies, and in much higher numbers than in the handful of cities in the Harvard study. They will also lead to much greater economic losses. And we may be sure, the burden of these ill effects will be borne primarily by African Americans.

It’s impossible to know what goes on in the minds of the people who have been committing these recent acts of violence. Some, no doubt, have simply been taking advantage of an opportunity to help themselves to free merchandise through good old-fashioned looting. Others may simply enjoy breaking things and setting things on fire. Nevertheless, it seems clear many violent protestors and many of their self-identified leaders are motivated by the anti-American views the progressive elite has been relentlessly promoting since the turn of the 21st century. They hate Western Civilization and all its works — including, particularly, the United States and our Constitution — and they want to replace them with something else.

Despite what they claim, these people don’t really care about black lives. If they did, they wouldn’t commit acts of violence that will inevitably cost thousands of black people their lives and make the lives of hundreds of thousands of additional black people worse. Instead, they’re using hyperbolic claims about police misconduct and systemic racism to polarize people and make them angry, and they’re committing violent acts in the hope of provoking a violent reaction that will lead to escalating conflict and, ultimately, to revolution.

If they succeed, what will follow won’t be the postcapitalist utopia they have in mind. It will be an authoritarian nightmare, and the modern progressives who have been stoking the flames of revolution will be to blame. The fact that they continue to promote so much anger, hatred, and violence despite the obvious risks is both unfathomable and unforgivable.

Jon Guze is director of Legal Studies for the John Locke Foundation.