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Articles

The Constitution: Restore or Replace?

It’s not my job to say whether the Constitution should remain and be restored after the fall. My goal is to consider various possibilities for flourishing in light of unavoidable change.

Published in Underthrow Series .

Deliberate, therefore, on this new national government with coolness; analize it with criticism; and reflect on it with candor: if you find that the influence of a powerful few, or the exercise of a standing army, will always be directed and exerted for your welfare alone, and not to the aggrandizement of themselves, and that it will secure to you and your posterity happiness at home, and national dignity and respect from abroad, adopt it; if it will not, reject it with indignation-better to be where you are for the present, than insecure forever afterwards.

—Cato I, Anti-Federalist


In the throes of collapse, people will want to turn to something familiar. Though mortals designed the U.S. Constitution, the document is imbued with a sense of the eternal. Some argue it’s outdated. Others argue there is much to be found in the penumbra and that what’s there can save the republic. It’s not my job to say whether the Constitution should remain and be restored after the fall. My job is to consider the best possibilities for flourishing in light of unavoidable change, which might or might not include the Constitution.


I believe that many of the most tragic episodes of state development in the late nineteenth and twentieth centuries originate in a particularly pernicious combination of […] elements. The first is the aspiration to the administrative ordering of nature and society, an aspiration that we have already seen at work in scientific forestry, but one raised to a far more comprehensive and ambitious level. “High modernism” seems an appropriate term for this aspiration. As a faith, it was shared by many across a wide spectrum of political ideologies. Its main carriers and exponents were the avant-garde among engineers, planners, technocrats, high-level administrators, architects, scientists, and visionaries.

—James C. Scott


High Minds—those who embrace what political scientist James C. Scott calls high modernism—have attacked it. We don’t need protection from unreasonable searches and seizures, they said from the right after 9/11. To keep us safe. We don’t need guns and militias anymore, they said from the left after the latest mass shooting. To keep us safe. In what remained, the Constitution became a document of political opportunism used to block one’s opposition.
Otherwise, the political class sought variously to circumvent or avoid it.

Packed courts and activist judges twisted the original meaning out of all proportions. The political class ignored whole amendments and continues to do so. Legislators raced to pass bills that would cause the Framers to scoff, tut, and turn in their graves. Who cares what a bunch of old powdered wigs thought? We have to evolve with the times, they said. Emergency after emergency awakened the urge to control, even though yesterday’s intervention beget today’s emergency, begetting tomorrow’s intervention.

Emergencies are pretexts for actions that have left the document in tatters and sowed the seeds of collapse. In this way, it was a mindset that undermined the Constitution. And an undermined Constitution—imperfect as it always was—makes for a vulnerable Republic.

History professor Margaret O’Mara captures the essence of the High Mind.

The battle against [insert crisis] already has made government—federal, state and local—far more visible to Americans than it normally has been. As we tune in to daily briefings from […] officials, listen for guidance from our governors, and seek help and hope from our national leaders, we are seeing the critical role that “big government” plays in our lives and our health. We also see the deadly consequences of four decades of disinvestment in public infrastructure and dismissal of public expertise. Not only will America need a massive dose of big government to get out of this crisis—as Washington’s swift passage of a giant economic bailout package reflects—but we will need big, and wise, government more than ever in its aftermath.

Big. Central. Wise.

This might as well be inscribed in gold lettering over the Blue Church.

Time and again, the High Minds have agitated for more. Crisis after crisis. Fear grips the mind and locks it down. The irony is that the intellectual elites, more than anyone, seem to wallow in this perennial failure of imagination—looking to the state to be mommy, daddy, and God. But “the state” is just people. Still, the Blue Church’s “public expertise” is offered as a rare form of intelligence or magical insight. Private or amateur expertise—whatever that might be—should be suppressed or ignored.

Such is not to argue that the government experts are always wrong; instead, it is to say that if public expertise is a hammer, everything looks like a nail. That hammer should smash, smash, smash its way to a solution. They’ll need bigger budgets. They’ll need more comprehensive plans. The Constitution?

How can anyone worry about the Constitution when [insert crisis]?

As we stare down our decline, we might have to imagine replacing the Constitution to start completely over. Still, those drowning in a storm will look around for what remains in the wreckage and cling to it. So I imagine what is needed might be rather like what philosopher Otto Neurath described:

We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away a new one must at once be put there, and for this the rest of the ship is used as support. In this way, by using the old beams and driftwood the ship can be shaped entirely anew, but only by gradual reconstruction.

Neurath’s metaphor could become inapt if, as mentioned, we’re merely clinging to wreckage.

Constitution expert Matt Erickson thinks rights reserved to the states can be restored without collapse or reboot:

He might well be right.

You will, of course, find a lot more speculative thinking in this publication, including, I hope, continued work on the Constitution of Consent—not merely because that effort is designed to attract freedom lovers around the world but because I am not sanguine about the prospect of undoing lawyerly legerdemain on these shores. (I imagine enclaves for the remnant.)

Maybe the Constitution will become completely irrelevant in the wake of the collapse. If so, plenty is ahead that satisfies a prescription for simply starting over. However, it could be that the Constitution is a mechanism through which we can evolve our institutions rather than a failed experiment to be discarded as what had once been America descends into chaos, warlordism, or authoritarian dictatorship.

I can’t help but think there are vital elements of the Constitution, even if it is only a stepping stone to a healthier regime that abandons it in its current form. For many, it still has the effect of being a secular scripture, a connection to our origins, and a source of unity as a people. It is also timeless and amendable, which can be a path to our renaissance.

It will all depend on what Eros and Thanatos Feminine have in mind for the future.

When we think of the Constitution, it’s mostly a static thing that exists as an artifact from the past. In our highly polarized times, it’s hard to imagine changing it. Yet, it has been changed seventeen times since the Bill of Rights was written. Surely, in the face of cataclysm, we can at least enforce what is vital to our reorganization, even if we make no Amendments. Some sort of scaffolding will be necessary—one imbued with a few of the timeless gifts of the enlightenment.

Like pluralism.

Recall that philosopher Robert Nozick believed we can find value in things that exhibit organic unity, which, put quite simply, is the balance of unity and diversity. One might say that this conception of value maps nicely atop our idea of the Law of Flow. After all, flow systems have both diverse elements and unifiedness. So, for example, the world is biodiverse in its flora and fauna, but all living things share an underlying code. Most life on earth participates in the oxygen cycle of respiration and photosynthesis, even though we share that cycle with Venus flytraps, Siberian tigers, and psychedelic cuttlefish.

Americans, too, are united in our self-concept as Americans. E pluribus unum. Likewise, a binding set of basic laws gives rise to many different lifestyles, religions, and conceptions of the good. Ex uno plures. That’s valuable when we can maintain our diversity yet remain unified in peace. For nearly 250 years, the constitutional order has helped Americans be more organically unified. Though there had been some lurches away from the ideals expressed in those founding documents—the ill-treatment of Native peoples and slaves up through to Jim Crow laws—pluralism and unity found some balance.

It’s tempting for the powerful to ignore the Constitution, especially in times of crisis. That they can reveal its weakness, perhaps. Activist courts, hellbent legislators, pliant voters, and presidents with Great Man complexes have all turned against the rule of law.

But in future installments, we will discuss ways to restore the lost Constitution, realizing this might be a lost cause. Though imperfect, the Constitution is a familiar social operating system with the benefit of evolving—perhaps even forking. Because it has become customary and somehow remains part of our collective consciousness, I want to leave open the possibility that it can be restored and improved—even as we tinker with other designs.

Perhaps someday, the Constitution will outlive its usefulness. Perhaps it will be replaced by some other, superior social operating system. Maybe it will crash with the economy, or maybe it can evolve. Maybe we can restore it. If so, it will require a series of upgrades, about which more later.

Max Borders is a senior advisor to the Advocates. He writes at Underthrow.


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