America Is Not a Parchment Promise

Nate Fischer touched a nerve yesterday by pointing out the self-evident fact that the regime governing America today has “almost no relationship to the form of government established by the [C]onstitution.” “If you will not accept the reality that this is long gone—if you judge others based on fidelity to a set of “principles” that govern no one—then you are a fool,” Fischer wrote on X.

It’s notable that Fischer’s critics on the right opted for sputtering outrage over substantive disagreement with the merits of what he said. “And there it is,” wrote one. “They’re finally saying out loud what we’ve known they wanted from day one,” added another. What “it” is, who “they” are, or what “we’ve known they wanted” remains something of a mystery. But vague pronouncements and allusions to nefarious motives were the best that could be mustered in response to Fischer’s point; it’s nearly impossible for any rational person to argue, with a straight face, that the system that presides over the country today has much of anything in common with the one designed by the Founding Fathers.

Whatever the founders may have intended for our system of government, it has very little bearing on the function and purpose of American government today. (And the conservatives who were brought to hysterics by the recognition of this fact would, in all likelihood, be horrified by much of what the founding generation actually believed anyways.) The nation’s original constitutional architecture crumbled long ago. Today, much of what is often mistaken for the Constitution of 1787 is actually the constitution of the post-1960s civil rights regime, as Christopher Caldwell ably chronicled in his 2020 book The Age of Entitlement:

The changes of the 1960s, with civil rights at their core, were not just a major new element in the “Constitution. They were a rival constitution, with which the original one was frequently incompatible—and the incompatibility would worsen as the civil rights regime was built out. Much of what we have called “polarization” or “incivility” in recent years is something more grave—it is the disagreement over which of the two constitutions shall prevail: the de jure constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks this traditional kind of legitimacy but commands the near-unanimous endorsement of judicial elites and civic educators and the passionate allegiance of those who received it as a liberation.

What does still have bearing on American life, albeit in a severely diminished form, is the remnants of the way of life and set of political traditions that the founders attempted to secure — what is, in actuality, their most magnificent and enduring accomplishment. The political folkways of the American nation, inherited from its Anglo-Saxon origins and shaped in unique and distinctive ways by the experience of the New World, both preceded and proceeded from the Constitutional Convention. This, rather than any abstract set of “principles,” is the story of both the American founding and the documents to which it gave birth: Rather than initiating some revolutionary transformation, the Declaration of Independence merely “confirm[ed] an existing state of affairs,” wrote Mel Bradford. Rather than enshrining a set of radical ideals, the Constitution “built a structure of common government … upon a common legal inheritance, common origins, and an established unity of purpose.” The purpose of the American Revolution was to conserve rather than to overturn. “No new contract is drawn,” Bradford wrote of the Declaration. “Rather, one that exists is preserved by amputation.”

The conservative obsession with abstraction is a kind of false consciousness that conceals the Right’s true interests from itself. Conservatives become so preoccupied with what they imagine our founding “principles” to be that they fail to discern or understand the vanishing way of life that those principles were intended to secure. For years, the Right has treated “American ideals” as a sort of magical incantation; as if invoking them might shroud what’s left of the American republic in protective wrapping, serving as “parchment barriers against the encroaching spirit of power,” as James Madison wrote in Federalist No. 48. But if words on a page — as beautiful as they may be — were enough to protect the liberties bequeathed to us by our forefathers, then stories like that of Jack Phillips would not be as common as they currently are:

Jack Phillips has been in court for a decade. He lost over 40% of his business. Every time he wins a case, activists immediately drag him back into court. They can do this forever.

If you have to spend your life in court fighting for your rights, you don’t actually have rights https://t.co/jKuwRdlsaT pic.twitter.com/4ndvk6t3Li

— Nate Hochman (@njhochman) May 20, 2024

If the fight for America is the fight for a set of parchment promises, then the entire war can be understood as a series of legal debates, each won or lost via a series of legal rulings. But this is simply not how real life works. Phillips won his constitutionally guaranteed religious liberty in the Supreme Court — but only after years of fighting, at substantial personal and financial cost. Two months later, he was back in court again. (RELATED: The 10-Year Fight of a Courageous Baker: Jack Phillips and Masterpiece Cakeshop)

The truth is that the assault on America today is far more radical and existential than anything that could be described with reference to political theory. To suggest otherwise is to treat our cold civil war as an abstract classroom debate, rather than a very real war against a very real nation and people. The elites — not just in the halls of government but in corporate boardrooms, the cultural industry, Silicon Valley, Wall Street, and academia on down to the public education system — are not just un-American but anti-American, and militantly so. Their project is one of de-Americanization, not entirely dissimilar from the dekulakization program launched by the Soviet regime. The very explicit and overt goal is to wipe away anything recognizably American at all, and to replace what was once America with a completely new country and a completely new people.

It would be an insult to the authentic greatness of the authentic American nation to reduce it to a set of “ideas” or written words. It was here, in our country, that Western civilization realized its destiny, and the first 200 years of American history are an expression of a unique and distinctive restless spirit that shaped world history. “It is a character that could have only ever arisen here, in this nation of settlers,” I wrote last month. “The same heroic spirit that drove the pilgrims to the New World; explorers to the untamed wilderness of the Western frontier; and American astronauts to the moon. It is an innate restlessness, creativity, and dynamism that is unique to who we are — a country built by irrepressible men, whose dreams were too great for the low horizons of the Old World.” It is that fundamental character that is now under attack; and it is that fundamental character that must be defended.

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