Why the Constitution Won't Save You

On the conquest of America’s unwritten constitution

Last week the U.S. Supreme Court considered arguments in a landmark case on the legality of our managerial regime’s metastasizing censorship-industrial complex. At issue is whether the federal government may coerce and/or collude with social media companies in order to systematically suppress the communications of its citizens, or whether this is a violation of their constitutional right to free speech. By now the evidence of the Biden administration’s sweeping censorship efforts is overwhelming. Many legal observers were therefore surprised when, during the hearing, it quickly became apparent that a majority of the court’s justices seem to be convinced by a counter-argument that actually it’s the government who’s the real victim in this case – because what “free speech” really means is that the government has a right to tell Facebook that you need to stfu.

The court’s newest and most innovative justice, Ketanji Brown Jackson, stole the headlines with comments about how she was “really worried” about “the First Amendment hamstringing the government in significant ways in the most important time periods” (i.e. elections involving Donald Trump). But even some of the court’s more allegedly “conservative” justices like Brett Kavanaugh and Amy Coney Barrett appeared openly sympathetic to the idea that it’s more important to preserve the national security state’s uninhibited power to bully platforms into silencing information they consider “harmful” than it is to preserve fundamental individual rights.

In short, although a ruling on the issue won’t be released until this summer, as of now the Supreme Court seems poised to effectively enshrine the legality of mass state censorship and deliver what could be a mortal blow to America’s tradition of free speech. The China convergence certainly seems to be proceeding apace.¹

Many conservative and classical-liberal American political commentators seem genuinely shocked by this development. They assumed this should be a pretty open and shut case, with the federal government’s behavior – being a clear violation of what is spelled out in black and white by the First Amendment of the Constitution – sure to be righteously smacked down by the conservative-leaning court and our inalienable rights reaffirmed. But this assumption was deeply naïve. Moreover, in fact their broader, rather quintessentially American faith in the Constitution’s ability to establish and protect foundational liberties was probably also always badly misplaced.

Perhaps this unfortunate moment can therefore at least offer an opportunity to induce some much-needed realism about the Constitution, the actuality of what it is, and the inherent limit to the aid it can offer to resistance to tyranny.

In the naïve schoolhouse view the Constitution remains a sacred, quasi-magical text spelling out our rights and protecting them by limiting the powers of government. The words on its pages have been elevated to semi-transcendent status, as if they were a form of scripture endowed with their own sovereign authority. This authority sets the rules of what is permissible, and the robed wise men of our courts interpret, sola scriptura, these national tenets to determine if new laws and practices conform to or have overstepped the authority granted to them by the Constitution. In this sense the Constitution forms the foundation for the rule of law.

Adherents still holding to this view may further believe that the words of the Constitution’s text also established the foundational character of the American nation, becoming the enduring wellspring of our unique national culture and way of life. Finally, they are likely to assume that it is precisely the fact that the American Founders took the step of codifying well-reasoned, difficult-to-change ground rules in writing that is what has made the United States an exceptional nation inherently more resistant to tyranny than those which failed to develop clear written constitutions.

Sadly, in recent years some of us have had to come to accept (not without discomfort) that everything about this view is wrong. It is a comforting myth, but a myth nonetheless.

Most obviously, the Constitution does not, of course, have any sovereign authority of its own. It doesn’t make its own decisions as could, say, a living monarch. And although officials may swear oaths to uphold and defend the Constitution, it – not being alive – of course cannot hold them accountable or enforce anything, including the rights and limitations it delineates. Only other people can do that; only individuals can rule. This is a rather simple point, but many Americans seem to want to actively ignore its reality, preferring to see power as something that flows from and is constrained by the Constitution, rather than as something which can determine its meaning and application. The Constitution in-and-of itself has no more power than any other piece of paper.

What is even more important to understand, if perhaps less obvious, is that the Constitution isn’t actually our constitution. In fact it has never been America’s true constitution. That’s because the Constitution (the written document) is only a representation of something real – or rather, in this case, something which used to be real. Its words were an attempt to encapsulate the Founders’ expression of the young Anglo-American nation’s implicit, unwritten “constitution” (as most of Western history’s great philosophers would have understood that word): the unconscious, historically accumulated essence of the nation’s organic and fundamental collective character: its public spirit, way of life, and common understanding of authority and the moral laws of right and wrong. In this the Founders succeeded wonderfully in their day. But the document they produced was and is a map, a symbolic representation of a cultural and spiritual territory; it is not the territory itself.  

No one understood this distinction better than the political philosopher Joseph de Maistre. Writing in 1809, he scoffed at the idea that any document written by mortal hands could ever design and establish genuinely new foundational laws.² The spirit of any such laws – if they actually existed and had any real authority – was invariably already written on the hearts of those men who attempted to crudely reduce them to mere lines on a piece of paper.

“A constitution is a divine work, and… precisely what is most fundamental and most essentially constitutional in the laws of a nation cannot be written,” he observed. The true constitution of a strong and functional nation was, he said, always “that admirable, unique, and infallible public spirit, beyond all praise, which directs everything, which protects everything. – What is written is nothing.”

“Only when the society is already constituted, without it being possible to saw how, it is possible to declare or to explain in writing certain particular articles” of a particular society’s true, unwritten constitution, he argued. But attempting to capture these principles in writing is largely pointless. In fact, he believed that such “writing is invariably a sign of weakness, ignorance, or danger,” in that “every written law is only a necessary evil” that “is of no authority at all unless it has received a previous and unwritten sanction,” and in “so far as an institution is perfect, it writes less.” (Here he echoes that famous motto of Tacitus, pessimae reipublicae plurimae leges: “the more numerous the laws, the more corrupt the state.”)

Hence he scorned the “profound imbecility” of “those poor folk who imagine that lawgivers are men, that laws are a piece of paper, and that nations can be comprised of ink.”

To summarize, Maistre declared four propositions:

1. That the roots of political constitutions exist before any written law;

2. That a constitutional law is, and can only be, the development or sanction of a pre-existing and unwritten right;

3. That what is most essential, most intrinsically constitutional, and truly fundamental, is never written, nor even can be, without endangering the state;

4. That the weakness and fragility of a constitution are precisely in direct proportion to the multiplicity of written constitutional articles.

These days I suspect he was right, and that his insight can help explain a lot about the degeneration of society and governance that has since occurred in the United States (and various other Western nations as well).

When the Founders drafted the Constitution, they were giving expression to an essential constitution of the American nation that already existed in unwritten form, and which continued to endure for a long while. But in time, even as the written Constitution continued to reign in official law, the spirit that governed the American people changed as they changed, and the corresponding unwritten constitution withered away and was replaced by a new intrinsic constitution. In fact it’s probably accurate to say this happened multiple times, or in multiple stages. Yet in any case the unwritten constitution animating the American state today bears almost no resemblance at all to that preserved in the historical relic of the Constitution.

What is America’s implicit constitution today? Naturally it’s never been fully captured in writing, though some authors thinking along similar lines, such as Christopher Caldwell, have variously attempted to nail it down here and there. If pressed to summarize, I might say it is one that values safety and security over freedom; top-down control over self-governance; empty egalitarian posturing over excellence; material comfort over virtue; entitlement over responsibility; bureaucracy over accountability; narcissistic emotivism over duty; fantasy over reality; global ambitions over national loyalty; dreams of progress over eternal and transcendent truths – in short, the same spirit that animates our out-of-control managerial regime. It’s the spirit which saw that regime not hesitate to impose COVID lockdowns, or trash the rule of law and attempt to jail political opponents (and for half the country to view this as acceptable or even admirable); it’s what has produced Supreme Court justices who fret free speech would undermine the security state.

Much of what we’re seeing today in our seemingly revolutionary times is the outline of this new unwritten constitution becoming increasingly visible in law and government as the chasm of difference between it and the original American constitution – and Constitution – that it conquered becomes too wide to conceal any longer. More and more often now, the new regime fails to keep up appearances by successfully wrapping itself in the confining ritual pretenses of the Constitution. Its mutated form is simply growing too hulking and twisted to fit.

It may be true that a remnant of the old constitution – the old American nation – remains alive in the hearts of some portion of the American people. But if so it is now battered and bloody, struggling for breath as the new constitution seeks to finish it off once and for all. Perhaps this is the best way to describe the true cause and nature of the existential political and cultural clash that has riven the American body-politic and continues to grow fiercer by the day: it is indeed, as Joe Biden has put it, a final “battle for the soul of America.”

This is the real reason why the Constitution, and all varieties of constitutional legalism, can’t and won’t save us now: in today’s struggle it no longer has any power over men because it no longer corresponds to the unfortunate new inner reality of America’s unwritten constitution. The old “infallible public spirit, beyond all praise, which directs everything, which protects everything,” which the document once embodied, is no longer there give it substance.

John Adams once famously warned that “Our Constitution was made only for a moral and religious people,” and that, should that national moral character disappear, the resulting political passions “would break the strongest cords of our Constitution as a whale goes through a net.” Adams was of course referring primarily to the Christian religion and its system of moral order, and Maistre would have very much agreed – in his view the origin of a strong, stable, and legitimate constitution could rest only in God and what we might call the popular fear of God: a sincere (even if subconscious) belief that to transgress the constitution (written or unwritten) was in a way to transgress divine law, an act liable to be punished accordingly. Ultimate authority then effectively rested above any man or document. Without this source of higher authority the constitution would crumble and only the whims of petty tyrants would remain.

It sure seems that this is what we’re witnessing today. Whether or not we attribute the key role to Christian belief or to some broader but less easily defined national moral character, it seems clear to me that the Constitution is no longer alive with any such frightful sacred authority; it has been thoroughly profaned, and therefore opened to abuse. Nor is there today even a shared national understanding of its meaning and unwritten spirit. Whereas once few people would have dared try to blatantly twist its words to mean something that all would know implicitly they could not mean, our rulers no longer hesitate to do so – and often succeed. They succeed because that implicit constitution has been replaced.

I know that for Americans, who put so much faith in our Constitutional tradition, this is probably a particularly difficult and demoralizing reality to accept. But accept it we must. Otherwise we won’t be able to grasp the nature and extent of the challenge facing us. No amount of quibbling about the details and original meaning of the Constitution will rescue us from our present situation; nor could the nation’s highest court, even if it weren’t full of quislings. Even if the Supreme Court were to strongly reaffirm the principle of free speech, it would provide at most only a temporary reprieve – a ruling which the regime and its institutions would in all likelihood simply proceed to ignore, knowing they could get away with it.

No court has the power to define America’s true, unwritten constitution. If we want to change that constitution, and so restore any substance to the Constitution, then what will be called for is nothing less than a sustained and determined national cultural, intellectual, religious, and political counter-revolution sufficient to re-mold the very animating spirit of the state. It would, in other words, have to be just as sweeping as the long revolution which dismantled and subordinated our original constitution in the first place.

1. Did you know?: the People’s Republic of China also has a very nice written constitution, as it happens, elaborating all kind of generous rights for the people, including free speech. Somehow it never seems to function as written.

2. In Joseph de Maistre, “Essay on the Generative Principle of Political Constitutions and other Human Institutions.”