John Locke Update / Research Newsletter

Darn That Pesky Old Constitution!

posted on in Law & Regulation
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I’m so old, I can remember when the left was committed to upholding the Bill of Rights. In 1977, for example, the ACLU successfully defended the American Nazi Party’s right to march through the Village of Skokie—a predominantly Jewish suburb of Chicago that was home to many Holocaust survivors. While the ACLU endured a fair amount of criticism from the general public, my recollection is that most people on the left applauded its commitment to free speech.

Nowadays, on the other hand, people on the left are more likely to call for bans on “hate speech,” for “safe spaces,” or for climate change skeptics to be prosecuted under state and federal anti-racketeering laws. And when Donald Trump supporters are roughed up and intimidated, or neo-Nazis are subjected to knife attacks, the left seems more inclined to blame the victims than the perpetrators.

What’s more, it isn’t just the First Amendment that has fallen out of favor. Following the mass-murder of gay night-club patrons in Orlando earlier this month the left was quick to reject the Second and the Fifth Amendments as well.

In an article in Rolling Stone Magazine, Drexel Law professor David S. Cohen said:

Sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed. 

Few Democratic politicians would be brave enough to come out in support of that proposal, but a lot of them are loudly demanding that the Second Amendment be suspended for anyone the government decides to add to one of its secret lists of suspected terrorists—a decision that it makes in secret on the basis of secret criteria.

There’s a small problem with that demand, however, as West Virginia Senator Joe Machin recently admitted on MSNBC:

The problem we have, and really the firewall we have right now is due process. It’s all due process….

If a person is on the terrorist watch list like … the shooter in Orlando … there was no way to keep him on the nix list or keep him off the gun buy list. There was no way to do that. So can’t we say that if a person [is] under suspicion, there should be a five-year period of time that we have to see if good behavior, if this person continues the same traits, maybe we could come to that type of an agreement. But due process is what’s killing us right now.

In a previous newsletter, I treated the left’s current attitude towards free speech as an aberration, and it’s certainly true—as I said—that, “For generations, the political left in America could be depended upon to uphold the right to free expression no matter what.” However, if one takes a longer view it seems clear that it was the left’s support for constitutionally protected rights in the second half of the 20th century that was the aberration, and that its recent rejection of such limitations on governmental power is actually a return to its progressive roots.

In the election of 1912, Theodore Roosevelt was the Progressive Party’s candidate. In a speech delivered in San Francisco, he ridiculed the belief (which he disingenuously attributed to his Democratic opponent, Woodrow Wilson) that, “The history of liberty is a history of the limitation of governmental power, not the increase of it.” According to Roosevelt:

This is a bit of outworn academic doctrine which was kept in the schoolroom and the professorial study for a generation after it had been abandoned by all who had experience of actual life. It is simply the laissez-faire doctrine of the English political economists three-quarters of a century ago. It can be applied with profit, if anywhere at all, only in a primitive community under primitive conditions, in a community such as the United States at the end of the eighteenth century…. To apply it now in the United States at the beginning of the twentieth century, with its highly organized industries, with its railways, telegraphs, and telephones, means literally and absolutely to refuse to make a single effort to better any one of our social or industrial conditions.

Far from endorsing the view attributed to him by Roosevelt, Wilson (who went on to win the election) made much the same point in a speech delivered during the same campaign and later published under the title “What Is Progress.” Wilson complained that, “Some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4th, 1776,” and he rejected the founders’ Constitution in no uncertain terms:

The Constitution of the United States had been made under the dominion of the Newtonian Theory. You have only to read the papers of The Federalist to see that fact written on every page…. 

Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of “checks and balances.”

The trouble with the theory is that government is not a machine, but a living thing….

Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.

All that progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

Early 20th century progressives regarded the Constitution and the Bill of Rights as obsolete relics of a bygone era. Early 21st century progressives, it seems, still do.

Jon Guze is the Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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