From the time Barack Obama received the Democratic Party’s presidential nomination, his detractors to his right have repeatedly lambasted him for his disdain for the Constitution.  From FOX News personalities to talk radio hosts, many are the self-professed champions of the Constitution who spare no occasion to warn the rest of us of the “radical” designs that Obama and his minions seek to impose upon the Republic bequeathed to us by the Founders.  

Lest there be any confusion over what follows, let the record note that President Obama most definitely is contemptuous toward the Constitutional Republic that our Founders sacrificed all to establish.  I will go even further: even though he wouldn’t dare say as much, given what is known of his ideology—an ideology notable not only for its unmistakably leftist ideals, but for its racialism—Obama, I am afraid, is probably quite contemptuous toward the Founders themselves (the Constitutional convention was, after all, whiter than a Tea Party rally!).    

What his opponents say about him, in other words, is true and then some.

But while his Republican opponents may be truthful as far they go, they don’t go nearly far enough, for in calling attention to the speck in Obama’s eye, they fail to recognize the beam in their own. 

The Constitution that such establishment “conservatives” tirelessly invoke has been rendered largely irrelevant by both Republican and Democrat alike.  And this has been the case for a long, long time.  In fact, ironically, the case can and has been made, and with far more eloquence and force than I am capable of mustering at this juncture, that if we could identify one person who could be said to have hammered the first nail in the coffin of the Constitutional Republic of our Founders, it was a Republican: Abraham Lincoln. 

From the time of the War Between the States, America has assumed a shape that the Founding generation would have found abhorrent, for from that moment, the individual states—sovereign entities all of them—were essentially reduced to agents of the national government that they created.  Thanks to the labors of “Honest Abe”—who Republicans and “conservatives” still regard as America’s best president—the father became the son and the son the father as the creature overcame its creators and the federal government broke loose of the fetters that the states had thrown upon it.

The kind of association delineated by the United States Constitution is what has been called a civil association. Political philosophers from throughout the centuries have invested much energy and imagination into distinguishing a civil association from other understandings of a state.  Whether it is Hobbes or Montesquieu, Hume or Kant, Burke or Oakeshott, a study of such portraits brings some common features into focus—features embodied by our Constitution.

First of all, the civil association to which our Constitution gives expression is indeed a moral association.  What this means, however, is that the terms of which it consists and with respect to which associates are related to one another are not devices for achieving substantive results; they are formal conditions—laws—that the associates are obligated to satisfy regardless of the results on which they set their sights.  Like any morality, the morality of civil association prescribes general principles that are indifferent to the many possible ways in which those principles can be lived out.  Or the laws of a civil association are like the rules of a game: they are impartial with respect to the players—who, in this case, are the associates (or citizens). 

Second, although we don’t literally misspeak when we speak of “Constitutional rights,” the predominance of such talk among Americans has blinded us to the fact that it is really obligations that the Constitution specifies, obligations that are equally distributed among the associates that compose the civil association that the Constitution defines.  For example, “freedom of speech” is nothing more or less than the obligation of each associate to refrain from impeding the liberty of every other associate to express himself.

In short, the Constitution consists of formal obligations to be fulfilled, not substantive plans to be executed.  That is, it tells us not what we have to do, but how we must act while doing whatever it is we choose to do. Today’s “conservatives,” though, like their leftist opponents, are ok with the government violating the Constitution, as long as the “what” that it pursues is to their liking.

The government delineated by our Constitution is basically a government divided against itself with the federal government assigned an exceptionally limited role.  Today’s “conservatives,” however, in spite of all of their rhetoric regarding “limited government,” to as great and quite possibly greater an extent than anyone else, have actually encouraged the homogenization of our once diverse government.  That is, through their endorsement of the criminalization of drugs and prostitution, Social Security, Medicaid, Medicare, public education, an income tax, federal funding for embryonic stem cell research, No Child Left Behind, and “faith-based initiatives,” to say nothing of their support of an ever larger military and an elaborate “Homeland Security” apparatus—i.e. George W. Bush’s “compassionate conservatism”—these “conservatives” have actually strengthened the hold of the federal government over the states. 

In light of these reflections, contemporary appeals to the Constitution and the Founders on the part of “conservatives,” leftists, and almost everyone in between are, at the very best, anachronistic, for the vision of the Founders has long been a thing of the past.  

Jack Kerwick, Ph.D.

originally published in The New American