The Conservative Case For A New Constitution
Optimism That Conservatives Can Take Steps To Avoid A National Divorce
In a March 2021 port-mortem of the 2020 Presidential Election, Glenn Ellmers wrote a scathing and depressing assessment of the health and prospects of American politics and society. His opening paragraph sets the tone:
Let’s be blunt. The United States has become two nations occupying the same country. When pressed, or in private, many would now agree. Fewer are willing to take the next step and accept that most people living in the United States today—certainly more than half—are not Americans in any meaningful sense of the term
According to Ellmers Americans are those committed to the principles of The Declaration of Independence and the Constitution (at least the prevailing version in force from 1878 until 1868). He summarizes these principles:
The rule of the majority in America would be limited in principle to doing what could only rightly be done by all the people. That is, the majority acting in and through the Constitution, could not infringe the rights of the minority. The government derived its authority from consent of all the American people, who created the Union to protect their natural rights to life, liberty, and the pursuit of happiness.
He cautions that
The great difficulty is that this idea only works if everyone agrees—that is, if everyone “gets it” and acknowledges that we are all fellow citizens (friends, ultimately) and that any temporary majority in power must represent the rights and interests of all.
This is the vital heart of what made American self-government work as long as it did. And it is the repudiation of this idea that animates the progressive, or woke, or “antiracist” agenda that now corrupts our republic, assaults our morality, and suffocates our liberty.
Ellmers writes that the Progressive-Woke ideology is animated by tearing down these principles because these principles were instituted by white men and slave owners in the 19th century. Therefore, these American principles don’t deserve respect, and their role in subjugating Blacks, Native Americans, Hispanics, and females deserve notoriety and criticism — hence the 1619 Project and other trenchant critques of America’s founding.
Therefore, the triumph of Democrats in the 2020 Presidential Election is a worrying sign that this dangerous, un-American ideology has divided our nation. Not so much a partisan division that we’ve seen throughout our history, but something more substantive, weakening the glue that holds Americans together and giving them a common sense of nationality.
At this point he throws up his hands and laments that
The U.S. Constitution no longer works. But that fact raises more questions than answers. Can some parts of the system—especially at the local and state level—be preserved and strengthened? How would that work? How do we distinguish the parts that are salvageable from the parts that are hopeless? How did all this happen, anyway? The answers to these questions are not obvious. Having a coherent plan—thinking through what American citizenship used to mean, what made it noble and made the country worthy of patriotic love, and how to rebuild its best elements—requires input from people, and institutions, who have given these matters a lot of thought.
It is worth reading the entire essay to absorb his deep pessimism and resignation that Americans face long odds in making changes. Recall that this was written in the aftermath of the January 6th invasion of the Capitol when the mood and confidence of Conservatives was at its nadir.
I don’t share Ellmer’s pessimism.
I don’t want to dwell too much on my difference with Glenn Ellmers because this post is about our agreement that the U.S. Constitution no longer works. However, he overestimates the ideological convictions of Trump’s supporters and their fidelity to prescriptions of John Locke, The Federalist Papers, enumerated Federal powers and limited government. Trump and his supporters enjoy Federal Guarantees enabling 30-yr. fixed mortgages, Social Security, Medicare, and Green Energy Subsidies for solar panels and windmills. They’ve already left the Claremont Institute’s reservation containing the few, remaining believers in fidelity to the principles of the 1787 Constitution.
What Is Left For Conservatives To Conserve?
Glenn Ellmers despairs that
Practically speaking, there is almost nothing left to conserve. What is actually required now is a recovery, or even a refounding, of America as it was long and originally understood but which now exists only in the hearts and minds of a minority of citizens.
However, Ellmers forgets how divided the Founders and Framers of the Constitution were about many matters. Just a few of the main cleavages were agrarian vs. Mercantile, small states versus large states, slavery versus free labor, believers in strong versus weak national government. However, they had a common heritage and experience with English common law, the Magna Carta’s principle that the King had to seek consent from his subjects to raise taxes, and that even lowly peasants had the right to privacy against arbitrary searches of their homes. This common heritage was the initial glue that held the nation together, not a studied affinity for the political theories of Montesquieu, Locke, Montaigne, Plato, and Cicero touted by Leo Strauss and Henry Jaffa.
Is America more divided now than it was in 1860 prior to the Civil War or than in 1968 during the anti-Vietnam War protests and racial protests? We’ve been through worse times than now.
My observation is that Americans do share core principles that preserve liberty in our nation. The main principle that Conservatives should advocate and promote is the right to be free from someone imposing their vision of a correct and approved life upon others — aka the pursuit of happiness. We should be free to pursue lifestyles suited for our values and circumstances, and then be rewarded the fruits of our labors if our choices produce better results than others. No one should force you to send your child to a public school teaching the 1619 Project in its history curriculum and hosting Transgender entertainment for 7-year olds. You should be free to educate your own children at home or in a private school reading the Great Works of Western Literature. Providing parents the fiscal means to escape indoctrination in such public schools would be a good Conservative policy to promote.
This freedom embodies competition through diversity. Like markets in all things, the technologies, beliefs, and moral codes that produce superior results will dominate and be replicated by others. When people use Government to suppress the outcomes of competition and redistribute these gains, then they intentionally violate this principle of diversity and competition. If children taught to read with phonics, and who read Shakespeare, Milton, Frederick Douglass, and Mark Twain get better jobs than children taught to read using the “whole-word” method, and who read Maya Angelou, Ibram Kendi, and Ta-Nehisi Coates, then Americans should aspire to imitate what works instead of tearing down those who adopted superior strategies for success.
We should also eschew the idea that there is one best way to teach any child that should be mandated by an authority that claims to operate according to neutral principles of scientific methods. This uniform application of teaching methods naturally proliferates the more that you centralize power. It makes things much easier for the bureaucrats. We should also question the assumption that material success is the appropriate metric of happiness and success. Too often political philosphers and politicians arrogate power by asserting that possess the knowledge and should be granted the powers to maximize this metric.
The best political protection for these principles is Federalism — a diversity of political power to prevent a monopolization of force. In short, if you don’t like the politics being served in California or New York, then federalist principles allow migration to Texas and Florida that are more conducive to your way of life. To the extent that we centralize power and control then we create more conflict and reduce competition and innovation. Federalism is the best way to release the steam causing pressure inside the national political pot.
I believe that this is the most important Conservative principle that has the widest and deepest level of support among Americans. There are other Conservative principles, but no other one has this kind of bi-partisan support.
How The Re-Constitution Restores Conservative Principles
I believe that the our 1787 Constitution had a major flaw at the core of its design. Article I, Section 8 enumerated specific powers that could be exercised by the Federal Government, and left the rest for the States. The Framers believed that this would prevent the centralization of power they most feared.
Unfortunately, starting with McCulloch v. Maryland, The Supreme Court opened a wide crack in the enumerated powers doctrine to allow the Federal Government to establish a National Bank, despite the fact that the 1787 Constitutional Convention debated including a provision to allow it, and refused to include it in the Constitution! The doctrine of enumerated powers limiting the Federal Government received its formal death certificate by 1937 when Franklin Roosevelt enacted the New Deal that was enabled by the ratification of the 16th Amendment in 1913 to permit unlimited, direct taxation of individual income.
In contrast, the Re-Constitution divides powers of taxation between the Federal and State governments to preserve federalism. If the federal government can raise taxes to sufficiently high levels and starve the States of revenue to bolster their autonomy and finance their own programs, then federalism is a dead letter. Recognizing this fact, the Re-Constitution limits the Federal government to a 12.5% maximum income tax rate while giving it exclusive domain over corporate income taxes, sales taxes, value-added taxes (VAT), estate taxes, and a few other taxes that should allow the Federal Government to raise sufficient revenues to pay for core Federal responsibilities. States are reserved exclusive domain over property taxes and wealth taxes. States have the ability to tax a larger percentage of personal income than they do today, but competition from other States would provide a brake on excessive income tax rates.
At 31,062 words, the Re-Constitution covers a lot more ground than taxes, but the critical link between the division of authority for taxes and the vitality of federalism was not sufficiently recognized and protected by the Framers. It was a fatal law that led to the steady erosion of enumerated powers that was a central feature of the 1787 Constitution. Let tax revenues rather than words in the Constitution be the restraint on centralizing federal power, and allowing States to flourish in competition with other States.
Conclusion
I believe that I’ve mapped out a path for Glenn Ellmers and his colleagues at the Claremont Institute to follow in order to reinvigorate some of the political institutions that have weakened during the ascent of Progressivism and the Welfare State over the past 90 years.
To amend or re-write the Constitution requires bi-partisan support. You cannot ram down your philosophy upon the majority of the country and expect to have peaceful transfers of power. However, if Glenn Ellmers gives serious thought about how to make Constitutional government work again in the United States, then he might find that this Re-Constitution is a good first step.
David Barulich