In his article “Is the Constitution Broken beyond Repair?” David Gordon draws attention to a phenomenon that is often overlooked: the great rejoicing among some constitutional lawyers over the fact that “to establish the new Constitution, Lincoln overthrew the first one. He replaced the old, immoral Constitution with a new one based on equality.”
This perspective is one reason why some of Lincoln’s admirers still celebrate the burning of the South by the Union Army. For them, the devastation and destruction of the South symbolize a brave new world of equality and social justice forged by a righteous army through fire and steel.
Most people, if they understood what was really being celebrated here, would surely be bewildered. Although Abraham Lincoln and Union Generals Ulysses Grant and William Sherman are generally admired for saving the Union—especially by those who do not consider the consent of states necessary—many may not think the war itself was commendable or worthy of celebration. Instead, they view the war as a necessary means for Lincoln to advance his righteous cause.
They would see the claim that Lincoln rejected the constraints set by the Constitution as a critique, at the very least. After all, while constitutional interpretation is open to debate, surely everyone agrees that a president should not actually overthrow the Constitution. At minimum, any president should at least pretend to uphold the Constitution—even if, in reality, he brazenly drives a coach and horses through it.
Even if a president is an unashamed hypocrite who believes double standards apply to his conduct, he should at least make a show of believing his actions are constitutional and not concede to complaints that he is subverting the law. But, rather surprisingly, some Lincolnite constitutionalists do not see matters this way.
They believe that deliberately subverting the Constitution is actually very good—as long as it is done with good intentions, namely, intentions of which progressives approve. As they see it, the new Constitution created by Lincoln’s war is more egalitarian and just than the old one written by slave owners. They believe the overthrow of the old Constitution ought to be welcomed by everyone who upholds “the idea of America”—the “idea” being, of course, progressivism.
Nor is this desire to destroy the Constitution new. In the 19th century, the abolitionist William Lloyd Garrison described the Constitution as an “agreement with hell.” Garrison famously produced a copy of the 1850 Fugitive Slave Law and set it ablaze. Amid cries of “Amen,” the hated document burned to a cinder.
Much like Martin Luther, who burned copies of canon law and the papal bull excommunicating him from the Catholic Church for heresy, Garrison consigned each to the flames. Holding up a copy of the U.S. Constitution, he branded it “the source and parent of all the other atrocities—a covenant with death, and an agreement with hell.”
As the nation’s founding document burned to ashes, he cried out: “So perish all compromises with tyranny!”
The abolition of slavery in 1865 only fanned the flames of this revolutionary fever. The new rallying cry became ensuring that slavery “by a different name” would never return. Accordingly, Reconstruction amendments were forced through.
Tennessee, the only Southern state to “willingly” ratify the Fourteenth Amendment, only did so after threats of force. Opponents of the Amendment in the Tennessee House absented themselves to prevent a quorum.
This did not stop its supporters, who forcibly seized two absent members and held them in a committee room. The House ignored a court order to release the two and overruled the Speaker, who ruled there was no quorum present.
To many, this might seem at least mildly embarrassing, though perhaps understandable in the tumultuous aftermath of war. But the Constitution has a defined amendment process, and the use of force is plainly not part of it. At minimum, these irregularities ought to be condemned.
Yet for progressives, overthrowing the old Constitution by any means necessary is praiseworthy, because the Fourteenth Amendment brought equality and justice. Their rallying cry is: Let justice be done by any means necessary!
In his foreword to Raoul Berger’s *Government by Judiciary: The Transformation of the Fourteenth Amendment*, Forrest McDonald observes that activist courts enthusiastically endorsed the Reconstruction amendments without qualms. He explains that “advocates of judicial activism began to assert that neither the words of the Constitution nor the intentions of the framers are any longer relevant.”
After all, the framers were “racist,” so nobody should care what their original intentions were.
After 1865, the progressive amendment of the Constitution continued inexorably under the civil rights regime. When Christopher Caldwell wrote his critique of the Civil Rights Act usurping the Constitution, one reviewer summarized Caldwell’s analysis under the title “The Law that Ate the Constitution.”
Many readers would assume that “the law that ate the Constitution” is a provocative title denoting an unwelcome development and that Caldwell’s entire point was to warn that the Constitution was under threat.
Even those committed to “the idea” of civil rights, who may never be persuaded that civil rights pose a constitutional threat (and who might believe judges just need to be more careful not to subvert the Constitution), might nevertheless appreciate Caldwell’s attempt to warn of a potential threat.
But astonishingly, some law professors view it not as a threat but as cause for celebration. If Caldwell is right that civil rights law is now the de facto Constitution and has displaced the racist de jure Constitution, they take that not as a warning but as a wonderful outcome worthy of celebration.
Progressives favor centralizing constitutional authority in the federal courts. Therefore, if courts willfully distort constitutional history to achieve that goal, so be it. After all, judges are distorting the Constitution for a good cause—in the service of equality, fairness, and justice.
Raoul Berger, writing about the Fourteenth Amendment as a platform for the “continuing revision of the Constitution under the guise of interpretation,” noted how the progressive Warren Supreme Court was hailed as “keeper of the national conscience.”
Therefore, when conservatives like Thomas Sowell warned about “the quiet repeal of the American Revolution,” progressives saw that not as cause for alarm but as evidence of victory.
As they see it, activist courts are to be commended for deliberately replacing the American Revolution with a racially enlightened social revolution. Far from denying that they have subverted the Constitution, they are supremely proud of their accomplishment, convinced that the new de facto Constitution better reflects “American values.”
The point here is not simply that there are different schools of statutory interpretation. Some constitutionalists uphold a “purposive” or “living tree” approach, trying to interpret the Constitution’s underlying goals and values.
Most progressives who champion purposive interpretation do not claim the old de jure Constitution should be altogether destroyed and replaced with a morally superior de facto Constitution. Instead, they at least attempt to argue their innovations represent reinterpretation and redefinition of the original wording.
However, progressives who praise themselves for displacing the Constitution altogether make a very different argument. They do not claim to engage in creative reinterpretation, but rather to abolish the de jure Constitution altogether in order to replace it with a more worthy compact rooted in their civil rights revolution.
https://mises.org/mises-wire/how-progressives-broke-constitution-and-praised-themselves-it