Opinion comes in choral form nowadays; our past poverty—in which we might have expected to have only one publication at a time demanding the abolition of the Constitution—has been eradicated. In October 2020, within a day of each other, The Week and The New Republic ran pieces entitled respectively “The Constitution Is Strangling America” and “The Constitution Is the Crisis.”

In the latter, the author credits the “Founders and Framers” with no “special capacity” nor “extraordinary foresight” nor “collective wisdom,” but only with “force of will” and “audacity,” and urges daring Democrats to follow them in making “a kind of society new to the world.” Mr. Nwanevu continues:

“Do we have any less a right to do so? It is beyond debate that we are [the Framers’] moral superiors; after over two centuries of democratic experience here and of observing the democracies that have bloomed across the globe, we know infinitely more about the institutions that they built and democratic governance than they did.”

Here and elsewhere in his article, Mr. Nwanevu makes clear that he repudiates, not only the Constitution, but the very premises of liberalism, according to which such a glib claim of moral superiority would be untenable.

Liberalism and its sibling, capitalism, recognize a range of competing interests, preferences, and values, and, finding no universally acceptable scheme of prioritizing them, allow each to be effectively asserted in the public sphere; in other words, both assume, first, that there is no principle commanding general assent by which to assert moral superiority, and, second, that it is possible to construct relatively neutral procedures by which to mediate the inevitable disagreements between rival conceptions of value. Our values are put to the test at the polls and in the market, but the results are qualified: perhaps because the victors of such political or economic wrangling are, under liberalism, only procedurally justified, we doubt that the losers deserve to lose, and so take some care to offer them legal protection or an economic safety net. 

The Constitution is broadly consonant with these goals of liberalism. The Establishment Clause suggests the document’s lack of commitment to any one moral scheme, and the electoral college, senate representation, and the whole of the Bill of Rights, serve to protect the interests of political minorities. What is known as “originalism” is a method of constitutional interpretation which strives for ideological neutrality by adhering to the letter of the text; it posits that the Constitution is a contract, like any other, representing a “meeting of the minds” of its executors—i.e. it had, and has, a determinate meaning—and that this agreement should only be amended by the procedure specified in its pages, not by creative reinterpretation. This attempt at a neutral or non-ideological interpretation is, interestingly, championed by conservatives and roundly rejected by those of the left, including Mr. Nwanevu, according to whom neutrality is a “charade”: 

“The Supreme Court fundamentally is and has always been a highly politicized policymaking and policy-destroying institution…the supposedly neutral doctrines guiding conservative jurists, in particular, have been crafted to legitimate rulings desired and pressed for by corporations and reactionary interest groups.”

Nwanevu would drop the pretense of neutrality, and embed in a new Constitution “a framework of fundamental rights” unimpeded by the “counter-majoritarian features” of our present laws. The fate of those outside of the majority would not be regarded in drafting this new document: 

“[I]n general, what conservatives would do as a matter of political organization and strategy if the GOP were nonviable as a national party is not a structural concern.”

Mr. Nwanevu thus rejects the essential premises of liberalism—its uncertainty with regard to questions of value and consequent reliance on allegedly neutral procedures to answer them, and its counter-majoritarian (that is, pro-minority) features—so his call for the abolition of one of liberalism’s greatest products, the U.S. Constitution, follows as a matter of course.

The quarrel between the certainty of fundamental rights with liberal uncertainty is nothing new: we find it in the considerations that led G.K. Chesterton to accuse Edmund Burke of atheism. In What’s Wrong with the World, published in 1910, Chesterton writes:

“Burke [stood] for the atheistic attitude and mode of argument, as Robespierre stood for the theistic. The Revolution appealed to the idea of an abstract and eternal justice, beyond all local custom or convenience. If there are commands of God, then there must be rights of man. Here Burke made his brilliant diversion; he did not attack the Robespierre doctrine with the old mediaeval doctrine of jus divinum (which, like the Robespierre doctrine, was theistic), he attacked it with the modern argument of scientific relativity…‘I know nothing of the rights of men,’ he said, ‘but I know something of the rights of Englishmen.’ There you have the essential atheist.”

Many leading thinkers on the left have adopted a theistic mode of argument, in Chesterton’s terms, fundamentally antagonistic to liberalism—Mr. Nwanevu is not alone in this—and, perhaps in response, some conservatives are doing the same (e.g. Adrian Vermeule’s recommendation that originalism be replaced with “a candid willingness to ‘legislate morality’” and an approach seemingly influenced by Thomism). The question then becomes, if we are to abandon our “atheistic” procedures, including the Constitution, by which to mediate between these competing theisms, how will each justify itself in the public sphere? Which theism will rule, and will there be any check to the application of fundamental rights? Moreover, since the continuing power of terms like diversity, tolerance, and inclusion—which are not the characteristic virtues of the morally certain—indicates that the American people are yet committed to liberalism, do they have a clear picture of the extent to which this framework is being challenged by our elites?

Chesterton’s distinction is in a sense misleading, since every political form, every organization of power, is, as David Martin and others argue, predicated upon myth. If any liberals are willing to defend their faith, they cannot remain indifferent either to the state-funded indoctrination of their children with more explicitly theistic modes of thought, or to the toppling and desecration of statutes and monuments. Catechesis, liturgy, and symbol are not optional. The “counter-majoritarian features” which Nwanevu finds so inconvenient reflect and enforce an essential premise of liberalism. This pro-minority premise generates the goodwill under cover of which the newly intolerant left operates. Mr. Nwanevu cannot be faulted for his logic or consistency, but he’s no liberal.

Also in this series:

Part I

Part II

Part III