Do We Still Hold These Truths?

While often overlooked, and likely taken for granted, the Constitution is central to American life. Not simply an organizational structure having to do with narrow legal or governmental matters, it is the arrangement that formally constitutes the American people. It orders our politics, defines our nation, and protects our citizens as a free people.

The challenge for the American Founders in framing the Constitution was to secure the rights and liberties promised in the Declaration of Independence, preserving a republican form of government that reflected the consent of the governed yet avoided despotism and tyranny. The solution was to create a strong, energetic government of limited authority, its powers enumerated in a written constitution, separated into different functions and responsibilities, and further divided between the national and the state governments in a system of federalism. The resulting Constitution, concluded Thomas Jefferson, “is unquestionably the wisest ever yet presented to men.”

The design, forms, and institutions of the Founders’ solution—what is called the constitutionalism of the American regime—define the necessary conditions of the rule of law and limited government, and hence liberty. That constitutionalism, made up of the various structural concepts embodied in the Constitution of the United States, is one of our most important first principles—not because these concepts are old, or unique, or exclusively ours for that matter, but because they form the architecture of liberty.

But in many ways, both minor and fundamental, the Constitution does not operate as it was intended and as it did operate for much of our history. There is a vast disjunction between the Founders’ Constitution and the “living” Constitution that is today virtually a dead letter.

In many circles, especially among our intellectual, cultural, and political elites, the principles of America’s Founding have been largely abandoned because they are seen as either outdated or defective, the product of wealthy, undemocratic slaveowners bent on erecting barriers to change and progress. The American Founders are more to be departed from than looked up to as a guide for today.

In 1987, for example, Supreme Court justice Thurgood Marshall rejected an invitation to honor the two hundredth anniversary of the Constitution. “I cannot accept this invitation,” he said, “for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention.” Not only is the Constitution merely “a product of its times,” Marshall said, but it also “was defective from the start.”

How—and why—did such attitudes take hold? The answer is to be found in profound changes over the course of the twentieth century in how we think of ourselves, our past, and the underlying principles of our nation.

A general agreement on core principles—equal rights grounded in a permanent human nature, constitutionalism and the rule of law, republican self-government—formed the underlying consensus of the American political tradition, underscored by the experience of American political life. This principled consensus—transcending important differences of practical application and party competition—generally held from the time of the Founding to the end of the nineteenth century, through the decline of the Federalists to the rise of the Democratic-Republicans, from the Jacksonians to the development of the slavery controversy and the outbreak of the Civil War.

America’s principles, severely tested by the deadliest war in the United States’ history, were ultimately vindicated, constitutional government was upheld, and the American consensus was restored on the grounds defined by the American Founding. The question of slavery was settled partially with the Emancipation Proclamation in 1863, and then finally with the Thirteenth and Fourteenth Amendments, abolishing slavery and extending citizenship and the protection of fundamental civil rights to the newly freed slaves. The Fifteenth Amendment secured voting rights to the former slaves and their descendants.

But in the years after the Civil War—as the nation began to reunite and rebuild, the economy expanded under the industrial revolution, urban society grew, and the United States developed into a modern world power—many thought that America was becoming a new nation, and that virtually every aspect of American life needed rethinking and reform. The intellectual and programmatic response to this overwhelming sense of change was called progressivism, and the period between 1890 and 1920 is generally called the Progressive Era.

A number of leading political thinkers came to believe that the Founders’ political science could not adequately address the emerging character of society. Concluding that the old constitutional system had failed (indeed, its insistence on principles of natural equality and constitutional government could be blamed for bringing the Civil War upon the nation), they argued that America needed a new way of thinking appropriate for the modern age. And so it was that they looked for new foundational ideas and other models of governance outside of the United States, in what were perceived to be more modern nations like England, France, and especially Germany. Based on the new concepts they learned there, these thinkers sought to build a new consensus and a new politics in the United States. What resulted was a broad intellectual, social, and political movement that for the first time self-consciously aimed at fundamentally transforming the principles and practices of American constitutionalism.

The American concept of liberty stems from certain foundational ideas about man and nature, equal rights, and the consent of the governed.

The new progressive thinking was profoundly shaped by two revolutionary, anti-foundational concepts.

First, the progressive view rejected outright the very idea, at the heart of the Founders’ way of thinking, of political thought and practice being guided by permanent principles. Deeply skeptical about any philosophical ideas that claimed to be true beyond their particular situation, the progressives held that there were no fixed truths—certainly no objective or unchanging standards of right to guide politics. All truth claims are contingent, merely personal “values” relative to other equally valid claims. It made no sense to say anything was a “self-evident” truth. This was a faulty assumption, they argued, and assuredly the wrong starting point for establishing a political system, especially one meant to be responsive to changing circumstances.

The second anti-foundational concept is called “historicism.” According to this view, not only are ideas relative to each other but all ideas and their meaning (and status) are relative to their moment in time. As such, ideas are relative to the era in which they are constructed, and must constantly be adapted to various historical developments. This means that ideas of the past are relevant only to the past. What might have been suitable for one century inevitably becomes outdated in another, making the past inferior to the present and the present but a step on the way to the future. The problem with the American Founders, the new thinkers argued, is that they did not understand and account for this lack of permanence and the constant flux and change in all things. Consider this from John Dewey, the progressive father of modern education theory:

Liberalism is committed to the idea of historic relativity. It knows that the content of the individual and freedom change with time; that this is as true of social change as it is of individual development from infancy to maturity. The positive counterpart of opposition to doctrinal absolutism is experimentalism. The connection between historic relativity and experimental method is intrinsic. Time signifies change. The significance of individuality with respect to social policies alters with change of the conditions in which individuals live. The earlier liberalism [of the Founders] in being absolute was also unhistoric.

Experimenting with and learning new ideas inevitably leads to change, moving toward ever increasing improvement and perfectibility of man and society. This movement is captured in the wonderfully indefinite concept of “Progress.” The American Founders themselves believed in progress, of course, but they understood progress to be change in light of unchanging standards. Improvement implies the ability to progress toward what is better, in light of what is good or bad. But for the progressive thinkers, everything was subject to Progress with a capital P—not just science and technology or even man’s understanding of natural rights, but the very foundational principles and the standards of society changed as well. Change becomes an end in itself.) Liberty was no longer a condition consistent with human nature and an exercise of God-given natural rights but an evolving concept to be achieved and socially constructed.

As one might imagine, these two concepts—that there are no fixed truths and that all ideas change and evolve with time—led to a serious reassessment of American political thought and practice. These new thinkers did not understand themselves to be rejecting the American Founding outright, but correcting the Founders’ mistaken assumptions and updating their flawed handiwork to reflect the newly discovered concepts of relativism and historicism. If there are no permanent truths, then politics could not—and should not—be guided by claims of fixed principles or self-evident truths. If all ideas change and evolve, then the American political order, both in principle and form, would have to be updated continually in order to allow and bring about historical progress.

According to the Founders’ view, the purpose of government is to secure fundamental natural rights within a rule of law framework of constitutional government. The ends of government were limited to certain core functions assigned to it in the Constitution. The new end of government, by contrast, was to bring about “Progress.” And since progress had not yet been achieved (really, can never be fully achieved, given that there is always more progress to be made in the future), there needed to be a new form of government that was not restricted to securing a few rights or exercising certain limited powers but broadened to achieve the more ambitious objective of bringing about more and more progress and social change.

In this view, government must always evolve and expand, and be ever more actively involved in day to day American life. Given the unlimited goal, government by definition must itself be unlimited. How could there be any limit? “It is denied that any limit can be set to governmental activity,” wrote Charles Merriam.

The exigencies of modern industrial and urban life have forced the state to intervene at so many points where an immediate individual interest is difficult to show, that the old doctrine has been given up for the theory that the state acts for the general welfare. It is not admitted that there are no limits to the action of the state, but on the other hand it is fully conceded that there are no natural rights which bar the way. The question is now one of expediency rather than of principle.

There was no longer any principle—whether natural rights or constitutional government derived from those rights—that limited the action of the state. The extent of government activity was only a matter of convenience; what is beyond the scope of government today would be fair game tomorrow.

Given this new understanding of government, it is no surprise that the progressives viewed the Constitution as an eighteenth-century plan unsuited for the modern day. Its basic mechanisms of the separation of powers and federalism were considered obsolete and inefficient, slowing political change and, by encouraging the levels of government and the branches within government to check each other, making it harder to get things done. It was seen as a reactionary document designed to stifle progress. As a result, the old limited constitutional system had to be transformed into a dynamic, evolving state that would be a genuine instrument of democratic change.

The particulars of accomplishing the broad objectives of reform—the details of regulation and many rule-making functions previously left to legislatures—were given over to a permanent class of government bureaucrats trained in the new science of progressive ideas. This ruling class of bureaucrats would reside in the recesses of endless agencies like the FCC (Federal Communications Commission), the SEC (Securities and Exchange Commission), the CPSC (Consumer Product Safety Commission), or OSHA (Occupational Safety and Health Administration). Their decisions, mostly unseen and beyond public scrutiny, were to be based on scientific facts rather than political opinions. The theory was that, as “objective” and “neutral” experts, these administrators would act above petty partisanship and faction to responsibly serve the long-term objectives of the nation’s social programs.

The result is that many of the actual decisions of lawmaking and public policy—decisions previously the constitutional responsibility of elected legislators—are delegated to unaccountable bureaucrats in administrative agencies. While these agencies call their laws “rules,” there is no doubt that they have the full force and effect of law as if they were passed by Congress. Today, when Congress writes legislation, it uses very broad language that essentially turns legislative power over to agencies, which are also given the authority of executing and adjudicating violations of their regulations in particular cases. In sum, while seemingly advocating more democracy, in practice progressive liberalism wants the opposite: more centralized government authority exercised by government bureaucrats.

In this new conception of the state, government is unlimited, subject only to the perceived wants of the popular will, under the forward-looking guidance of progressive leadership. Its form is administrative and bureaucratic, run more and more by government experts and bureaucrats not subject to popular consent. The objective of this new theory is to turn government into a dynamic, evolving rational state, constantly changing and growing to achieve more Progress.

America seems to be moving ever further away from its original principles and constitutional design. While progressive ideas have not completely won the day, and in many important ways those ideas have had to adapt to the realities still defined by the American political tradition, the dominance of these arguments—in our schools, in the public square, and in our politics—has significantly weakened the very foundations of American constitutionalism, making it all the more difficult not only to defend but more importantly to recover the ideas and institutions of America’s Founders.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men..."

Frederick Douglass, July 5, 1852:

As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharoah and his hosts were drowned in the Red sea, the British Government persisted in the exactions complained of.
The madness of this course, we believe, is admitted now, even by England; but , we fear the lesson is wholly lost on our present rulers.
Oppression makes a wise man mad. Your fathers were wise men, and if they did not go mad, they became restive under this treatment. They felt themselves the victims of grievous wrongs, wholly incurable in their colonial capacity. With brave men there is always a remedy for oppression. Just here, the idea of a total separation of the colonies from the crown was born! It was a startling idea, much more so, than we, at this distance of time, regard it. The timid and the prudent (as has been intimated) of that day, were, of course, shocked and alarmed by it.
Such people lived then, had lived before, and will, probably, ever have a place on this planet; and their course, in respect to any great change, (no matter how great the good to be attained, or the wrong to be redressed by it,) may be calculated with as much precision as can be the course of the stars. They hate all changes, but silver, gold and copper change! Of this sort of change they are always strongly in favor.
These people were called tories in the days of your fathers; and the appellation, probably, conveyed the same idea that is meant by a more modern, though a somewhat less euphonious term, which we often find in our papers, applied to some of our old politicians.
Their opposition to the then dangerous thought was earnest and powerful; but, amid all their terror and affrighted vociferations against it, the alarming and revolutionary idea moved on, and the country with it.
On the 2d of July, 1776, the old Continental Congress, to the dismay of the lovers of ease, and the worshippers of property, clothed that dreadful idea with all the authority of national sanction. They did so in the form of a resolution; and as we seldom hit upon resolutions, drawn up in our day, whose transparency is at all equal to this, it may refresh your minds and help my story if I read it.
Resolved, That these united colonies are, and of right, ought to be free and Independent States; that they are absolved from all allegiance to the British Crown; and that all political connection between them and the State of Great Britain is, and ought to be, dissolved. Citizens, your fathers Made good that resolution. They succeeded; and today you reap the fruits of their success. The freedom gained is yours; and you, therefore, may properly celebrate this anniversary.
The 4th of July is the first great fact in your nation's history-the very ring-bolt in the chain of your yet undeveloped destiny.
Pride and patriotism, not less than gratitude, prompt you to celebrate and to hold it in perpetual remembrance. I have said that the Declaration of Independence is the RINGBOLT to the chain of your nation's destiny; so, indeed, I regard it. The principles contained in that instrument are saving principles. Stand by those principles, be true to them on all occasions, in. all places, against all foes, and at whatever cost.
From the round top of your ship of state, dark and threatening clouds may be seen. Heavy billows, like mountains in the distance, disclose to the leeward huge forms of flinty rocks! That bolt drawn, that chain, broken, and all is lost. Cling to this day-cling to it, and to its principles, with the grasp of a storm-tossed mariner to a spar at midnight.

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