Essence of the Constitution

In his column today, George Will lauds a short new book by Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. Will provides a short course in the original understanding of the Constitution and the Progressives’ effort to remake it in the name of “democracy.” Please check out his column.

The column presents a useful reminder of the difference between modern liberals and modern conservatives. They go to the roots. The differences are wide and deep.

Drawing on what Publius referred to as discoveries and improvements in “the new science of politics,” the Founders created a frame of government designed to limit the powers of the government by the system of checks and balances with which we are all familiar, at least by reputation. The powers of the government were limited in the interest of liberty.

To limit the powers of government necessarily meant to limit the power of a democratic majority. The Founders meant to restrain the power of a democratic majority; they feared the tyranny of the majority. They viewed unconstrained majorities as the bane of liberty. Up through their time, history had shown all known democracies to be “incompatible with personal security or the rights of property.” They formulated the Constitution to protect the rights of citizens against the tyranny of the majority. Publius put it this way in Federalist 10:

The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular [i.e., democratic] governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.

The Founders had in mind the kind of man who presents himself as a tribune of the people — somebody who talks this way to impressionable young men and women graduating from college. Someone, i.e., like Barack Obama.

Given the limited scope of his column, Will does not intimate the success of the Progressives in overcoming the structural constraints on tyrannical action. The Progressive project has made great strides in removing the constitutional barriers protecting our rights to life, liberty and property against against the tyranny of the majority and the administrative state. We need to deepen our understanding of the task of restoration before us.

NOTE: I infer from reading Will’s column that Sandefur is a student of the students of Harry Jaffa at Claremont or Hillsdale. It turns out that he is a Hillsdale and Chapman Law School alum and now working at the the Pacific Legal Foundation. His book is published by Cato; he credits the book in part to the more than a decade he has spent working for the PLF.