The Constitution Isn’t The Problem

The founding document can still help us in the fight to save America

The Constitution once stood as sacrosanct among conservatives. No one questioned or debated it; it was treated with the reverence usually reserved for the Bible. 

Now the founding document stands at the center of a passionate debate among conservative intellectuals. The New Right criticizes Constitution-worship as woefully outdated and demands an alternative paradigm to save our country. The old guard of the conservative movement treats this criticism as absolute heresy and rejects all arguments againsts reflexive Constitution worship.

I’m more sympathetic to the New Right point of view, but both perspectives are mistaken. While conservatives are fools to think a strict observance of the Constitution will save us, the critics don’t offer a solid alternative. The Constitution shouldn’t handcuff us from doing what must be done to make America great again, but the document is still a valuable asset and symbol in our fight. There are just a few changes that need to be carried out to give us the power to do what’s necessary under a constitutional order.

The pushback against Constitution worship originated with the alt right. It came from an understandable place. Conservative Inc. at the time was mired in absolute delusion. There was the hypocrisy of Constitution worshippers cheering on the Iraq War, the Patriot Act, and several other unconstitutional ideas. There was also the cowardice of many conservatives who refused to support anything substantial out of apparent fidelity to the founding document. They would cynically cite the Constitution to say we can’t do anything about immigration, social media censorship, or companies firing employees for wrongthink. While this prized document would not get in the way of a neoconservative foreign policy, it would deter right-wing efforts to combat domestic woes. This line of thinking seemed ridiculous to any right-winger with a brain.

That’s why the alt-right adopted an anti-Constitution stance. It seemed to be more of a suicide pact than any serious defense of the historic American nation. The alt-right’s demise didn’t bury this stance concerning the Constitution. The New Right adopted the same attitude sans the alt-right’s “controversial” baggage. Now it’s pretty mainstream to demand an authoritarian order—so long as it’s not “racist.” The New Right and “post-liberals” (another term used for these types) see the Constitution as insufficient to deal with our current problems. They argue we need to dispense with it and adopt a new system. That new system is usually left vague, but the two alternatives that are best articulated are Caesarism and common good constitutionalism. Both have their issues.

Caesarism imagines that a strongman will take power and rule as he sees fit. This solution, advocated by such commentators as Michael Anton and Charles Haywood, imagines that an authoritarian, right-wing ruler would solve our problems. The previous legal system would be scrapped in favor of one to restore order to a chaotic nation. This “Red Caesar” will have little precedence in American history; he will owe more to Francisco Franco than any previous American leader. Haywood argues this Caesar won’t be ideological. He will just care about stability.

There are clear issues here. One, there is no crisis on the horizon to bring about a Caesar. The only way people and/or elites would accept an authoritarian ruler is if there was an economic meltdown (worse than 2008), a serious defeat in war (much more so than Afghanistan), a nuclear attack, or something else that completely upended the social order. These things could happen, but they are not likely in the near future. We lack a crisis to legitimize right-wing authoritarianism.

There was a recent crisis that brought about a degree of authoritarian rule—but the Right absolutely hated it. COVID hysteria persuaded the public and elites to institute rigid bureaucratic rule across the West. Instead of a Red Caesar, we got authoritarian libtardism that shut down businesses, forced masks on everyone, imposed censorship, and demanded everyone get the jab—plus special carve outs for black protests. The Right strongly opposed all of this.

The COVID episode illustrates another problem with Red Caesarism. The Left has a far greater ability to impose authoritarian government than the Right. Just look at how the system reacted to BLM riots. The military refused to be called out to deal with the Floyd rioters. The military instead endorsed them, as did the intelligence community, media, and pretty much every other institution. At a moment when the Left turned violent, the elements that could have crushed this uprising sided with it. Don’t look to any American general turning into a Franco. These officers would resist that effort. If America did face a serious crisis, these institutions would try to install a Blue Caesar.

It’s also not as appealing of a pitch as its advocates imagine. Our core constituency believes their rights and liberties are being taken away from them. They’re angry that the government doesn’t respect the intent of the Constitution. They don’t really want to give their rights and liberties, no matter how BASED the reason is. It’s not smart politics to promise a dictatorship, especially when there isn’t a real crisis for it to solve. Wokeness is not a sufficient cause. Additionally, it appears unclear on what basis a permanent legal system would be structured under a Red Caesar. Franco’s system died with him. There needs to be an ideological underpinning to stand as a serious counter to liberal democracy. 

“Common good constitutionalism” seeks to offer such an ideological underpinning. This formula, proposed by integralist law professor Adrian Vermeule, says a proper order should aim to secure the common good rather than liberty. The common good favored by Vermeule would be based on Catholic Social Teaching. Many right-wingers believe this system will place their values at the core of our law. I’ve had people tell me, in all seriousness, that judges would base their decisions on Summa Theologica rather than the Constitution under this system. 

Liberals have already implemented their own version of common good constitutionalism; their common good is just different from that of right-wingers. Their legal sensibilities dictate that the law should uphold equality rather than liberty. This is why liberal jurisprudence supports affirmative action, open borders, “disparate impact” corrections, and a host of other ills. This is the “common good” as seen by many of our institutions, and they’re the ones who determine what is right and just. Our elites rely far more on Martin Luther King for what’s the common good than Thomas Aquinas. Adrian Vermeule shares many of their goals. He backs open borders, hate speech laws, gun control, and mandatory COVID vaccines. This sounds far worse than the plain, old Constitution. 

It’s true that liberals disregard the Constitution and rule as they please. They have the advantage of doing that when they can appeal to the moral zeitgeist to “do what’s necessary.” It gets even easier when they have the media and other powerful institutions to back their tyrannical moves. The Right doesn’t have this privilege. Right-wingers even lack a clear alternative to replace the Constitution besides a vague Caesarism (that lacks a crisis to resolve) and an even vaguer common goodism.

It’s better to just stick with the Constitution as a revered symbol. This doesn't mean we need to straitjacket ourselves from doing what’s necessary or be autistic about original intent. We clearly live in a different time period from the Founders. This new situation calls for ideas that the Founders would’ve been wary of in their time, such as a strong executive who advances policy rather than Congress. (If that’s what we mean by Red Caesar, then that’s a wise and achievable goal.) 

But that doesn’t require us to discard the Constitution. The document remains a powerful symbol in our society. For our base, it carries a lot of weight. It’s part of their heritage and animates their “folk libertarianism” (a very different beast from the cringe libertarianism of the Cato Institute). “Don’t Tread On Me” and other slogans express this mindset. For better or for worse, the historic American people are not a group interested in the authoritarian conservatism of continental Europe’s past. They simply want to live free. 

That’s something right-wingers can appeal to. The Civil Rights Regime takes away our people’s freedom of association and speech. Immigration and multiculturalism tread on our traditions and quality of life. The entire liberal project in the US is subsidized by and oriented towards taking people’s money and redirecting it to special interests. And the Left wants to tear apart the Constitution and our entire heritage. It’s pretty easy to get middle America to support a strong president who restricts immigration and eliminates DEI on his own. You can even tell them, truthfully, it’s done to uphold the Constitution; that would make them more eager to support it. As long as the Right looks to be on the side of freedom against the Left, our constituency will back it.

The Constitution isn’t an enemy, nor is it a deadweight. It’s only made that way by moronic dorks like Erick Erickson. One should discard Con Inc. hacks rather than the Constitution. The Right can only abandon it if it has a strong alternative. It does not have one. It’s better to stick with the old text. It doesn’t mandate racial quotas or open borders. The same can’t be said of “common good constitutionalism.”