January 7, 2019: Confronting the Constitution Part 3: Has social change made the US Constitution obsolete?

In Nathan Tarcov’s contribution to Confronting the Constitution he argues that American society has changed dramatically in the last two centuries while its political framework barely budged. [1] With a charter toilsome to change the Founders did not, however, “freeze social facts or aspirations,” writes Tarcov, and bound us to no social theory. [2] This was different from ancient or modern sociopolitical founders, “who alike were creators or destroyers of classes.” [3] By design, “the founding tended to leave society free to develop outside the purview not only of constitution making but of government altogether.” [4] The Constitution was to remain largely as it was while society evolved—the abolition of slavery as an example. [5] This is not to say the structure had no social intent. “They gave careful thought to the kind of free society that is compatible with republican government…” [6] Their goal, “That society be made of free [individuals], and that individuals be fit for free society.” [7]

But today, “there is an uneasy sense,” claims Tarcov, “that our inherited political institutions and principles are inappropriate to our new society… Must we abandon our political inheritance…to fit our social practices and goals?” Before we can answer that, he considers what sort of society the Founders thought appropriate for republican institutions. These institutions and their interaction with society were central to the 1787 Convention, and this is where Tarcov dives into the competition of ideas between these statesmen, not politicians. [8]

One perennial problem of civilization has been the tension between the few and the many. The “haves,” which constitute the few, must not be allowed to dominate the “have nots,” which constitute the many. Nor should the “have nots” be allowed to confiscate legal property of the “haves,” with caveats. [9]

At the Convention, Charles Pinckney tried to make the case that America is of one social order with “greater equality than is to be found among people of any other country.” [10] Alexander Hamilton disagreed. “Whereas Pinckney hoped that America could avoid either a dangerously influential rich few or a dangerously poor many, Hamilton declared ‘In every community where industry is encouraged, there will be a division of it into the few and the many… Inequality would exist as long as liberty existed, and it would unavoidably result from that very liberty itself.’” [11] Material inequality characterized a free nation.

Yet the potential for extreme economic inequality was well known in the ancient example of Solon who, in his establishment of direct democracy, engaged in dramatic redistribution to keep the peace in Greece. But as Tarcov elucidates, “The point of republican equality is not an economic notion of just distribution…but a political notion of a social structure suitable to maintaining political equality and liberty.” [12] For the Founders, a level field was fundamental, prior to economic concerns, which would follow and be naturally unequal by talent. (Does political equality render the free speech argument of Citizens United counter to the Constitution by giving the rich more political clout?)

In debates over branches of government, how independent they should be, how long they should serve, and consequences of each on the few and the many, Gouverneur Morris acknowledged Hamilton’s perspective, with caution. “Wealth tends to corrupt the mind, nourish its love of power, and stimulate it to oppression [as] the spirit of the opulent,” he said. [13] Despite Pinckney’s hope that a vast territory would preserve a single class of industrious yeoman, Morris countered, “The schemes of the rich will be favored by the extent of the country… [The people] will be dupes of those who have more knowledge and intercourse. Thus it has been the world over. So it will be among us. Reason tells us we are but men: and we are not to expect any particular interference of Heaven in our favor.” [14] “Pride is,” Morris claimed “the great principle that actuates both the poor and the rich...which in the former resists, in the latter abuses authority.” [15] His social psychology was more political than economic, more concerned with power and freedom than wealth. Republican government was more likely to succeed if it “expressed and arbitrated, rather than repressed or neglected the fundamental [and inevitable] social division between the few and the many.” [16]

It doesn’t hurt to remind ourselves that the sticky issue here is one of balance. Too much inequality leads to social upheaval and/or the immorality of master/slave. Too much equality leads to tyrannical oppression of talent and its reward, commensurate with the least of us. Everyone has different talents and it was just such talents the Founders sought to unleash. Enabled by an arrangement that invited a society suitable to political equality and liberty, not equality of outcomes.

Madison offered a third vision distinct from Pinckney’s social homogeneity, or Morris and Hamilton’s laissez-faire acceptance between rich and poor. Madison’s was a regulation by default. Regulation by the structure of the system itself as an expansive republic, in direct violation of the ancient’s goal to keep republics small, thus producing citizens like-minded enough to be stable. An expansive republic multiplies interests, thus diluting their power. Farmers have different interests from fishermen. But there’s a bonus. Rich and poor fishermen have interests different from rich and poor farmers. Interests have an opportunity to unite the few and the many within each interest in competition with other interests. With numerous interests dictated by local environment over an expansive country, Madison expected to weaken any particular one in its potential to constitute a tyranny of the majority. “Not to prevent majority rule,” Tarcov writes, “but [at least the opportunity] to form majority coalitions on principles of justice and the general good.” Assuming a general good exists.

As Francis Fukuyama characterizes America’s current status, “[Our] preoccupation with identity has clashed with the need for civic discourse. The focus on lived experience by identity groups prioritizes the emotional world of the inner self over rational examination of issues in the outside world, and privileges sincerely held opinions over a process of reasoned deliberation…” [17] We now live in an age when identity groups have chosen to be treated not “the same [as] dominant groups” but to “assert a separate identity…[demanding] respect for them as different from mainstream society.” [18] Insisting “not only that laws and institutions treat them as equal…but also that broader society recognize and celebrate intrinsic differences that sets them apart.” [19] This bearing born from the Left, Fukuyama alerts, has now been implemented by the Right, worldwide. Where demagogues pander to groups aggrieved by threats to their identity real or imagined.

As 50 years of Leftist relativism has taught the Right “alternative facts,” fake news, and Rudy Gulliani’s postmodernist impersonation with his “truth isn’t truth,” so too has Left-wing segregation under the politically correct guise of modern “multiculturalism” and “diversity” invigorated the populist Right’s appeal to the “white working class on ethnocultural grounds.” [20] A revival of bigots on the Right, by bigots on the Left.

Is there a common good in this new social theory? Is it “compatible with republican government?” Tarcov makes an unstated assumption that Americans would want such a government in perpetuity. Could it be social change has made the US Constitution obsolete, the people desirous of another form? Perhaps the totalitarianism of perfect equality dreamed of by the Left, so long as each group is regarded in a manner particular to their victim status. Or should it be Right-wing authoritarianism? To “take back America” by force, given that the undereducated many have proven themselves incapable of reasonably disputing intellectual convolutions of those educated few. After decades without civics education in self-governance we Americans don’t know the difference between republican government and any other. How hard can it be to embrace something else? [21] Tarcov doesn’t say. Currently in America, 51% of young people favor the economic-political blend of socialism. [22]

It may be the Founder’s vision has been incrementally corrupted by the interests they aspired to enable, just as they feared. As Ralph Lerner notes elsewhere in the text, they wanted a system that could endure “a thousand daily circumstances [that] drew citizen’s thoughts and energies earthward and inward. Where the enticements of immediate material reward threatened to drain public life of the indispensable involvement of the many and the indispensable contribution of the best.” [23] But, knowing human nature, they feared “A nation of private calculators with short memories would forget the long-term consequences of not tending to the public business.” [24] Thus failing to remind “people of the evils self-governance helps them avoid.” [25]

Until next time, March 4, 2019.



[1] Nathan Tarcov, “The Social Theory of the Founders,” in Allan Bloom Ed., Confronting the Constitution, AEI Press, 1990. Tarcov’s remark is not to say America’s politics, and fidelity to the Constitution has remained the same. We now have Gerrymandering, primaries, Senators elected by the people, and an Electoral College no longer the last safeguard against despots given that the Parties take precedence over the country and its Constitution, to name but a few changes.
[2] ibid, pg. 167
[3] ibid, pg. 167
[4] ibid, pg. 167
[5] Recall from a previous post here how Michael Polanyi argues for an open society based on a fixed tradition that nonetheless makes room for and invites change in the interest of justice. Likewise he notes a similar tradition of practice in science inviting the completion of knowledge in the interest of truth. Note also the effort required to change the Constitution as spelled out in that document through the process of Amendment with satisfactory majorities in the House, Senate, and the States themselves. By no means can the Constitution, by its own decree, be adjusted willy-nilly by the latest fool to occupy the White House through an executive order. That Trump could utter such inanity reinforces what we already know.
[6] Confronting the Constitution, pg. 167
[7] Ralph Lerner, “Jefferson’s Pulse of Republican Reformation,” pg. 164, in Allan Bloom Ed., Confronting the Constitution, AEI Press, 1990.
[8] Brett Williams, September 3, 2018: Confronting the Constitution. Part 2: Government of, by, and for unstable humans
[9] We should add not only “legal property” but morally acquired, as free from seizure by authorities. An old idea included as far back as the Magna Carta, which gave to the people rights to confiscate the King’s property if wrongfully acquired. American Big Pharma is a shining example in their immoral dumping of harmful and/or ineffective drugs into patients for profit. In some cases these drugs are known to be harmful or potentially lethal and in some cases these drugs are shielded by the FDA, whose charter it is to protect public health, not pad Pharma profits. See Redacted: Is the FDA withholding drug trial data to protect corporate secrets of pharmaceutical companies?, Scientific American, February, 2018, pg. 38-43. Are those profits free from seizure by government fine or public lawsuits? For direct violations in healthcare when FDA does (or did) its job, Google: Haldol and Dementia. You’ll find Haldol, according to NIH the most hazardous antipsychotic among all antipsychotics when used on elderly dementia patients, with tortuous and/or lethal consequences. While Haldol has been shown to have some efficacy on patients with schizophrenia, no benefits have been shown when used on the completely different category of dementia patients. Yet still it’s prescribed despite FDA’s 2008 black box warning against it. As Bernie Sanders noted, hundreds of millions in lost legal cases by Big Pharma is the “cost of doing business” for drugs that earn in the billions. Such is corruption of the Founder’s system, when business buys the representatives that write laws for the business few, not the many.
[10] Confronting the Constitution, pg. 171. Pinkney did however see equality “in the first place legal and political, and only secondarily economic…as every freeman has a right to the same protection and security.”
[11] ibid. pg. 172
[12] ibid. pg. 171, italics added
[13] ibid. pg. 175
[14] ibid. pg. 176
[15] ibid. pg. 176
[16] ibid. pg. 173
[17] Francis Fukuyama, Against Identity Politics: The New Tribalism and the Crisis of Democracy, Foreign Affairs, September/October 2018, pg. 101
[18] Confronting the Constitution, pg. 97
[19] ibid. pg. 98. This is in wonderful agreement with postmodernist self-contradictions infecting the Left. “We demand equality. But treat us differently.”
[20] Eric Kaufmann, Immigration and the Future of the West, Foreign Affairs, September/October, 2018, pg. 224-231
[21] Questioning republican governance, Americans are currently engaged in a low level rebellion, not without cause. As we’ve seen before, the Founder’s enthusiasm for prosperity was not only for taxes to pay defense and law enforcement ensuring liberty and rights, but to gain popular consent for republicanism. Today, after Afghanistan (losing to the Taliban) and the much bigger boondoggle in Iraq to destabilize not only the Middle East but Europe with a total of $5T spent in the Mid-East, and tens of thousands dead, how does government look now? See, Gordon Lubold, U.S. Spent $5.6 Trillion on Wars in Middle East and Asia, Nov. 8, 2017. Add to this the already reeling effects from the China Shock, when Wall Street took down the Western world’s economy only to reward themselves $21B in bonuses with none of them in jail and no laws to restrain elusive CDOs and derivatives that put us there. How does globalism, and capitalism itself, long embraced by representatives—who wrote the laws for banks and corporations that bought them—look to those who lost their jobs, homes, and families? These people can’t afford congressmen. The Founder’s system has been corrupted, in both these examples in ways they feared: foreign entanglements, and the rich few.
[22] Kathleen Elkins, Most young Americans prefer socialism to capitalism , CNBC, Aug 14 2018
[23] Ralph Lerner, “Jefferson’s Pulse of Republican Reformation,” pg. 165, in Allan Bloom Ed., Confronting the Constitution, AEI Press, 1990.
[24] ibid. pg. 165
[25] ibid. pg. 165
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