What should receive more discussion is the notion of “Liquidating” the meaning of the provisions of the Constitution.
Constitutions are naturally conserving documents. Their purpose is to say what a society cannot change, or at least cannot change readily. In constitutive moments, polities lash themselves like Odysseus to the mast, not the pilot’s seat.
This is lost on those political commentators, ascendant during the NFL’s anthem controversy, who seek to press the language of the Constitution’s Preamble into the service of Progressivism. We are talking about Progressivism with a capital “P”— the strain that believes in unrelenting progress as the inherent good of man and the inevitable trajectory of events. The phrase in question is an old rhetorical favorite: the Preamble’s quest for “a more perfect union.”
Chris Cillizza of CNN thus admonished President Trump that patriotism was not about the flag but rather about “loving the country enough to fight for it to be a more perfect and equal union.” George Clooney, who is a better actor than a poet and a better poet than a constitutional theorist, was moved to verse: “I pray for a more perfect union. And when I pray, I kneel.” Barack Obama and Jeff Sessions, too, have recently understood the Preamble to refer to progress.
It is moving poetry. It is also fraught. On the Progressive account, progress is what Willmoore Kendall said of the contemporary liberal quest for truth: asymptotic, always nearing but never attaining its goal and thus justifying a permanent pursuit. It is oriented forward, not toward restoring timeless values but toward forging new ones.
This serves the marshaling of power toward those values, and especially through a particular vision of the Constitution. In a 1985 speech at Georgetown University, Justice William Brennan managed to claim that the Constitution removed some issues from popular consideration—a notion that, whatever its flaws, is at least rooted in the idea of timeless conservation—while also claiming that the whole document should be interpreted according to its Progressive spirit. “The Constitution,” said Brennan, “was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.”
Actually, one could have awoken on December 8, 1787 (the day after Delaware’s ratification put the Constitution over the top) in Wilmington or Philadelphia or rural Virginia without noticing a difference in one’s daily life. The reason is that the Constitution was precisely not intended to form a new, more perfect, society; rather it was targeted at a discrete political problem, the weakness of the “union.”
The phrase “more perfect union” thus refers to the impotence of the Articles of Confederation regime and the Framers’ intent to reform it. Andrew Jackson, responding to South Carolina’s 1832 ordinance of nullification, so understood it. President Jackson thought the essence of a “more perfect union” lay in the supremacy clause. As he wrote (and the emphasis is his):
The most important among these objects—that which is placed first in rank, on which all the others rest—is “to form a more perfect union.” Now, is it possible that, even if there were no express provision giving supremacy to the Constitution and laws of the United States over those of the states,—can it be conceived, that an instrument made for the purpose of “forming a more perfect union” than that of the Confederation, could be so constructed by the assembled wisdom of our country, as to substitute for that Confederation a form of government dependent for its existence on the local interest, the party spirit, of a state, or the prevailing faction of a state?
Contra Brennan, the Constitution organizes governing, and only part of governing, at that—the national level, and even there only for specific purposes. It does not seek to attain abstract goals and, save for its simple yet moving Preamble, is strikingly barren of philosophical language. To read the main body of the Constitution is to find no support—none, neither a jot nor a tittle—for either change or stasis as inherent goods.
Instead, with respect to “form[ing] a more perfect union,” the Constitution would fix a problem—a serious one, to be sure, and one of sufficient scale that its resolution required political innovation, even if not as much innovation as is commonly supposed.
Indeed, constitutions intended to operate as Brennan, Clooney, and their likes would prefer—as instruments of social rather than governmental transformation, especially, perhaps inevitably, of the unrelenting variety—are notoriously unstable (when not outright tyrannical). They begin not by building but by destroying. See for example the French Constitution of 1791: “The National Assembly, wishing to establish the French constitution upon the principles which it has just recognized and declared, abolishes irrevocably the institutions that have injured liberty and the equality of rights.”
The U.S. Constitution, by contrast, retained the underlying political and, more important, social arrangements of the community, especially those that most immediately touched daily life. The political arrangements were modified relatively modestly within the scheme of political reform. The project was remarkably compatible with Edmund Burke’s criteria for reforming the British Constitution. The reforms worthy of support, said Burke, would make changes only in exigent circumstances; would follow the example of his ancestors; and would make new institutions in the style of the old. He wrote: “I would not exclude alteration neither, but even when I changed, it should be to preserve.” Even on Abraham Lincoln’s account, among those constitutional thinkers who place more weight on the document’s text, the Constitution aimed to affirm, at least over time, the enduring principles of the Declaration.
Progress has its place, certainly. But when progress becomes dogma, conservation becomes sacrilege. The achievements of ancestors are painted as the burden rather than the bequest of their descendants. The humility that values the reason of ages over the reason of individuals—Burke’s “moral rather than . . . complexional timidity”—is painted as weakness.
That is not to say the words “more perfect union” lack value. There are moments when the nation ought to be spurred to progress. But it should be—as in 1787—when progress is warranted, that is, when a discrete problem calls for it. Athletes and activists are entitled to declare that now is such a time. But the lesson of the Preamble is not that progress—make that Progress—is a never-ending journey, pursued asymptotically for its own rewards. The lesson is that identifiable problems can be fixed, and ought to be.