An Important Distinction

The Spring 2012 issue of The Claremont Review of Books features an essay by John Marini in which he explains this distinction between a constitution and a government.  Marini’s thesis is that “constitutionalism as a theoretical doctrine is no longer meaningful in our politics.”  Like most of the essays featured in the CRB, this one was thought provoking.  The essay is quite extensive in its scope and depth.  We will look at one aspect that caught this writer’s attention:

Our Constitution is not our government.

This is a concept that will be new to many who read this.  Marini explains:

A constitution is meaningful only if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation.  If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government.  When the principles that establish the legitimacy of a constitution are understood to be changeable, are forgotten or denied, the constitution can no longer impose limits on the power of government.  In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals.

Progressives seek to blur this distinction between constitution and government and in so doing change the constitution to fit their agenda.

Constitutionalism differs from Progressivism in that the former is based upon the foundation of natural rights and reason, while the latter is based on Historicism.¹

The American Progressive movement starting in the early 20th century recognized the inherent opposition of Constitutionalism to Historicism and has, as its “fundamental purpose the destruction of the political and moral authority of the U.S. Constitution.”

Marini uses FDR as his primary example of this philosophy, for the simple reason that he was the most successful Progressive politician of the 20th century.  Wilson, and his allies could not comprehend why an all out assault on the Constitution did not sit well with most Americans.  Wilson’s sense of superiority is palpable in his words:

No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle.  The rights of man are easy to discourse of … but they are infinitely hard to translate into practice.  Such theories are never “law” … Only that is “law” which can be executed and the abstract rights of man are singularly difficult to execute.^ 

The concept of something so downright archaic as a fundamental principle is anathema to Progressives then and now.  However, as James W. Ceaser explains in another essay in this same issue of the CRB, the Progressives were capable of learning from their mistakes.

This open attack on the Constitution failed to win the support of the American people.  Grasping this error, the liberal heirs of the Progressives changed tactics, replacing frankness with stealth.  Instead of opposing the living constitution to the actual Constitution, they decided to bring the living constitution, like a Trojan horse, inside the Constitution.

Which brings us back to the distinction between Constitutionalism and Government. Because the Progressives know that the Constitution limits government, they seek to destroy it “by stealth,” as Ceasar says. In order to accomplish this, they need to blur the distinction between the Constitution and government.

Thomas Paine explains the distinction:

… a constitution is a thing antecedent to government, and a government is only the creature of a constitution.  The constitution of a country is not the act of its government, but of the people constituting a government.

Furthermore, Paine understood a common misapprehension of his time and ours, and said that he had to deny what had, “been thought a considerable advance towards the principles of freedom … that government is a compact between those who govern and those who are governed.”

In Paine’s view, and Marini’s, the people entered into a social contract amongst themselves – not with a government.

The fact therefore, must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government; and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Marini expands,

The social compact, therefore, must be understood in terms of a distinction between nature and convention.  A constitution, unlike government, derives its authority from the laws of nature, or reason, which requires the protection of the natural rights of individuals as the chief purpose of government.  It rests upon a political theory that established principles designed to serve that purpose.  Consequently, it is possible to determine the powers and limitations of government precisely because its authority is derived from a more fundamental compact.

This fundamental compact is captured in the founding documents.  The Constitution instituted the government and limits its power.  It is not the government, but superior to it. Marini paraphrases the Declaration of Independence to underscore the distinction: “It is the people who assign government its role, which is the protection of their individual rights: when it fails to do so, it must be altered or abolished.”

¹For a definition of Historicism we will quote a book review done at WWTFT of R.J. Pestrito’s book on Wilson.

Historicism is an almost religious (in Wilson’s case it was) belief in the predetermined end of history, which is the perfection of modern democracy and conversely the denial of permanent trans-historical truth.  Therefore, the Founders and their precepts, while suitable for the time in which they lived, were simply unqualified, and in fact showed great hubris in suggesting that the system they developed was suitable for use in perpetuity.  According to Wilson, their distrust of government was based solely on their understanding of the time and circumstances in which they lived.  Modern governance should not be shackled by the constraints specified by the Constitution, in particular the separation of powers, and the whole concept of checks and balances.  In Wilson’s view this was unnecessary, because in his enlightened times, the modern state was an organic entity and just like an organism, would not have its parts operate in contention with one another; neither should the apparatus of state do so.  Furthermore, these systems had become merely impediments that prevented the efficient administration of government.  Wilson’s dislike of what he perceived as the Founders’ if not child-like, simply historical, incapability of transcending their time is reflected in his writings.