In voicing his somewhat reluctant approval for the Constitution Benjamin Franklin declared that he believed that the government which would be created by it was, “likely to be well administered for a course of years,” but, he added, he was quite certain that it would, “end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. ” Franklin instinctively understood what many today fail to grasp: liberty does not come without a cost and a people unwilling to sacrifice for freedom cannot maintain its blessings.

Speaking a few years later, President John Adams declared that:

"We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

Our Constitution depends upon the faith, honesty, and charity of the people. It was never meant to be parsed, dissected, and interpreted as though it were a prophecy from the Oracle at Delphi. The Constitution was meant to be a compact among the people, not divine writ handed down from on high. When everyone is looking for the easiest and most legal way to cheat their neighbour, the people become (in Franklin’s phrase) incapable of self-government and instead can only be effectively managed by a despot.

The Founders learned something obvious from history: while arbitrary rule does not work, neither does direct rule by the masses. The public as a whole is too easily consumed by popular passions, too rash in its judgement, and incapable of individually grasping the details of every issue of government. More than that, when an individual is given literal powers of self-government the result is that an individual will pursue their self interest rather than the national interest.

This is why the American Republic was endowed with a number of institutions whose specific design was to filter, moderate, and conciliate the public will. The problem is as such: modern technology and innovations (the media and polling in particular) are chipping away at the carefully-laid wall between the mob and the rulers.

I do not mean to decry self-interest. Ambition is (and will always be) one of the driving forces of civilization. However, it is wrong when the self-interest is conflated with the national interest. People who forget Christ’s admonition to render onto God what is God’s and onto Caesar what is Caesar’s quickly come to lack the ability to divide what is in their own interest from what is in the interest of the country as a whole. The result is three hundred million people are trying to pull in three hundred million directions. For this reason, the business of government in America was always intended to be conducted by virtuous individuals who would go on to serve the public interest. The creation of various filtration systems for governance was always meant to allow the rulers to understand (and act upon) a national interest different from the selfish interests of each individual.

The problem today is one of restoring Constitutional rule and limited government both. Modern American government does not (for the most part) operate according to Constitutional rules, it operates by pseudo-Constitutional interpretations which simultaneously manages to rely upon the discovery of hidden meanings within plain text while at other times adhering to a Jeffersonian literalism.

Limited Unlimited Government:
It is one of the greatest tragedies of our age that the Constitution of the United States, a document based upon the principles of limited government, is now used to justify what is, in essence, a form of government with no restraints but the minds of a handful of judges. Thus is the Constitution perverted to create a strange and monstrous hybrid of limited and unlimited government. The traditional right of society to collective uphold its own moral values and celebrate its religious heritage is thereby denied while, at the same time, government is allowed to claim sweeping and intrusive privileges in other areas.

The Founders never wanted to create a nation whose form of government was the mob. In fact, they specifically argued against any such arrangement by inserting a number of deliberately anti-democratic features into the Constitution. Consider:

• Senators were to be chosen by state legislatures and were to provide direct representation for the states (this was later altered by the Seventeenth Amendment).
• The method of selecting Presidential electors was left vague, but it seems certain that few people had in mind that they would be selected by a direct vote.
• Universal suffrage (not even universal suffrage of white males) was specifically not prescribed, and was not generally practiced.

It seems evident that the intention of the Founders was to create a limited constitutional republic were level, educated, and wise heads would generally carry the day. The early institutions of the United States were designed to filter the popular will. To provide “representative” government, not direct democracy. Yet, when watching the operations of the modern American electorate (and, indeed, the electorate of any modern ‘democratic’ nation) I am often reminded of the scene in Shakespeare’s Julius Caesar where Brutus and Mark Antony speak to a mob of Romans following Caesar’s assassination. First Brutus explains that, while he personally loved Caesar as a man, he had to be killed because his ambitions were dangerous to Rome. “Let him be Caesar!” shouts one of the Romans of Brutus, altogether missing the point. However, by the time that Brutus is finished speaking, the crowd is thoroughly convinced that the assassination was justified and are therefore grateful to the conspirators. Then comes Mark Antony who, in a biting, sarcastic, stirring and emotional speech, convinces them that Caesar has been wronged and, by the reading Caesar’s will (which promises a cash payment to every man) spurs them to riot.

The result of all of this in modern American is a sort of pseudo-Constitutional rule. Modern government calls upon the letter of the Constitution to support its positions, but routinely violates the spirit of that document. Government is given wide-ranging powers to infringe upon the economic liberties and property rights of the people while, simultaneously, tiny extremist groups secure for themselves an unlimited freedom from the approbation of society, absurdly insisting that the Constitution grants individuals the right to buggery, abortion, and gay marriage. Regardless of what one thinks of any of these practices, no fair reading of the Constitution suggests that the protection of these “rights” was ever intended (or, for that matter, contemplated) by the framers.

It seems fairly apparent to me that if we were to yank any of the authors of the Constitution forward in time two centuries and asked them whether the document they created banned the public display of the 10 Commandments on Government property and legalized homosexual sodomy in every state in the Union, they would answer no to both. It is not even, I contend, a matter of whether or not you or I approve of governmental displays of religiosity or of homosexuality- it’s a matter of law and government. If nothing in the Constitution bans the display of the 10 Commandments, then why did a Federal Court order them hauled away from the Alabama Supreme Court? If nothing in the Constitution as written forbids Texas from passing an anti-sodomy statute, why are they now forbidden to do so?

Franklin’s Despots:
This is the sort of despotism that Franklin spoke of. The shredding of the Constitution has left a system in such disorder that someone had to step in and impose actual rules. Since no one else would, the Supreme Court and every inferior court in the land has done just that.

Consider the case of Roe v. Wade for a moment. Whatever you think of abortion, it seems entirely obvious to me that there is simply zero chance in 1973 (or today, for that matter) that the Congress would have nationally legalized abortion in such a sweeping way. Why, then, is Roe v. Wade law? The answer is quite obvious: “because the Supreme Court says so.” The only way that Roe (or any of the cases which have since affirmed and superseded it) will ever end is if the Supreme Court itself overrules it at some point in the future.

The ruling of the Court in Roe was far more radical than anything which was being seriously proposed at the time. The “Uniform Abortion Act”, then being circulated by the American Bar Association allowed abortion:

(W)ithin 20. weeks after the commencement of the pregnancy [or after 20. weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that [410 U.S. 113, 147] the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years].

However, the Supreme Court felt differently. Where the ABA’s (liberal in and of itself) suggested abortion law (and the New York law on which it was based) would have restricted abortion to a limited set of cases (admittedly, with the “mental health” exception serving as a rather obvious loophole) the Supreme Court simply legalized all pre-viability abortions, regardless of reason or necessity. More than that, by its wording, it made the restriction of post-viability abortion so difficult that it took three decades for a law banning such procedures to actually go into force.

This isn’t a case of the Supreme Court simply interpreting the law (a power which, in any case, was never granted to it but rather simply seized by John Marshall). This is the Supreme Court legislating without being considered subject to any review or higher authority. The Court has, in essence, been vested with unlimited power to order whatever it likes. Whether it uses that power for good or ill is immaterial, for it should not have such power at all.

What do you call a system which vests near-absolute and uncontested power in a small clique? “Despotic” is the best I can do.

The Freedom Curve:
A few days ago I drew up something that I’ve labelled “The Freedom Curve” which, I think, well illustrates our present quandary. You can make one yourself. Draw a half-circle on a piece of paper. The exact center of the resultant curve represents the ideal society- the freest which can ever exist. Now, at the bottom of the left side of the curve mark down the word “totalitarianism.” This is the society of the state: an existence where all individual rights are subordinated to the will of the states and where freedom simply ceases to exist. Now, on the right side write down “anarchy.” This is the society where the cult of the individual, the sect of selfishness, reigns utterly supreme. Here too, freedom ceases to exist because in a world where we care only for ourselves we can have no respect for the rights of others. Here the laws of the jungle prevail and freedom dies because freedom cannot exist without a civilization to cultivate and defend it.

What we must seek, then, is the point of balance. What exists between totalitarianism and the ideal society? What exists between anarchy and the ideal society? Draw two more points, at the mid-point between the balance point and the extremes. Between totalitarianism and the center write “monarchy” and between anarchy and the center write “modern democracy.” Now you have a much clearer picture of where we are and where I stand. A traditional Monarchy, for all of its faults, is typically much freer than a totalitarian society, but it is far from ideal. Similarly, the democratic nations of the West are freer than a society which has slipped into anarchy, but we are also separated from the ideal.

What, then, lies in that center? A free society, yes, but what sort of free society? I put it to you that what lies there is something we in the West have already experienced: call it Constitutional Republicanism, call it Constitutional Monarchy: call it what you like. It is the details that are important. What we require, especially in this day and age, is a government which respects the rights of individuals but also understands that no right can continue to be effectively exercised if that right is unlimited and not tempered by the basic needs of decent society.

Where freedom is made unlimited freedom ceases to exist. No freedom can exist without limitations. No right can exist without consequences. When we presume that there exists a right for an individual to do what they want, whenever they want, and however they want we create a society where the rights of other individuals now lack effectual protection.

Virtually everyone (save a few anarcho-capitalists) agrees that we cannot have a free market without any regulation whatsoever. A totally unregulated free market would be swollen with hucksters selling defective goods in a deceptive fashion. In a market without regulation people would swindle eachother with impunity and your money would be safe only when it was held in gold, secured to your person, and defended by your own gun.

Of course, no market without regulation can actually exist. Those markets in our society that exist without legal regulations tend to be regulated by a force far more effectual than Congress- namely, violence. If you don’t pay your loan shark he doesn’t take you to court- he has your arm broken. In some ways, this is a much more efficient system. However, I think that pretty much everyone can agree that the trade-off of freedom in exchange for that efficiency is rather excessive.

This, however, ties back into my original point: an arena in which freedom is unlimited will eventually collapse back in onto itself. A market that exists without any regulation will rapidly find itself ruled by violent criminals. What, then, are we to take of a society that exists virtually without regulation?

If we deny, as many would like to do, the right of society to make “moral laws” (as the Supreme Court essentially did in Lawrence v. Texas), then we make any sort of control of society short of mob violence essentially impossible. And where we allow any practice, however immoral, to take place without the restraint of law (moral decency having long since evaporated) the ultimate result can be only a single thing- descent into anarchy until some other force arrives to restore order.

Towards a Restored Constitutional Order:
The best way to revive the Constitution is to admit the need for limited and representative government. This, ultimately, means less “democracy” rather than more, as most now see it. The problem with an overabundance of direct democracy is that such a practice transforms a system is a despotism of the majority.

A restored Constitution must enhance the power of the Congress at the expense of the Courts while, at the same time, making the Congress less tied to the day to day will of the people. For this, I see a requirement for at least two Constitutional amendments.

First, the 17th Amendment should be repealed and state legislatures once more empowered to select Senators. This would greatly change both the character and the composition of the Senate. With voters no longer electing Senators in Congressional elections writ large, many more colourful members would make it into the Senate, thereby increasing both its ability and its intellectual capacity. More importantly, a direct link between the states and the Federal Government would be restored. Senators selected in this way would likely be zealous guardians of the rights of their states.

Second, something (most likely a Constitutional Amendment) must be done to bring the courts into check. The most obvious solution would be an amendment affirming Congressional supremacy over the courts. Such an Amendment could, perhaps, allow the Congress to override any decision of the Supreme Court in the same way that the Congress can override a Presidential veto. Such power would likely be rarely used, but its mere existence would certainly work to create renewed respect for the legislative branch on the part of the judicial.

The restoration of the Constitution will require hard work, just as its initial creation did. We will never achieve perfection, but we might just get good government.