Justice Scalia believed the old Soviet Constitution was, in a sense, far superior to the United States’ Constitution. No really. He once said:
Our Constitution isn’t the best, if you judge it by its guarantees. Frankly, the old Soviet constitution was better, and it was full of all kinds of grand guarantees . . . For example, ‘Citizens are guaranteed inviolability of the person . . . Citizens are guaranteed inviolability of the home’ . . . But this Soviet constitution was just a piece of paper . . . A bill of rights has value only if the main articles of the constitution truly constitute the organs of government – establish a structure that will preserve liberties against the ineradicable human lust for power.
I agree entirely. Judged by its written guaranties of liberty, the Soviet Constitution was wonderful. But we all know the Soviet Union was not a free country. If you crossed the wrong government official, said the wrong thing, practiced religion, or held the wrong ideas, you got a trip to the Gulag, if not a bullet to the head.
Why is the United States Constitution operationally far superior to the Soviet Constitution which, on paper, guarantied far greater liberties? In his column yesterday, Jonah Goldberg put his finger on the answer when he wrote, “The Constitution’s only binding power is the reverence we hold for it.”
In the Soviet Union everyone knew the constitution was a cynical put up job. Everyone knew that in practice government officials could ignore its guaranties with impunity. Everyone knew that when the words on the paper stood in the way of what those in power desired, it was the words on the paper, not the desires of the powerful, that would inevitably give way.
Conversely, in the United States the people have, for the most part, revered the principles of liberty embodied in the Constitution. The American people have treated the Constitution not as merely words on a page, but as a real guaranty of liberty with truly binding force. There have, of course, been exceptions, and many had to wait as we worked out the implications of our ideals. But those exceptions were just that – variances from the general rule. It really is the case that the United States is, as Lincoln said, a nation conceived in liberty and dedicated to the proposition that all men are created equal.
But I often ask myself how much longer this experiment in liberty will last. Lincoln understood the Civil War was a test of whether the United States, or any nation so conceived and so dedicated, can long endure. The forces of liberty prevailed then, but now, over 150 years later, we are engaged in a new civil war, an existential fight for the very soul of the country.
The new Civil War is not being waged with guns and bombs. It is being waged with an all-pervading cynicism that threatens to hollow out the Constitution and leave it a dried out husk. The difference between the Soviet Constitution and the United States Constitution lies entirely in the American people’s belief that the latter has real meaning and that everyone – from the lowliest village official to the President himself – is bound to respect and give actual force to its provisions. But what happens when those controlling our highest institutions no longer believe this? What happens when reverence for the ideas embedded in the Constitution gives way to cynical grasping for power?
Nowhere is this choice more stark than when a judge rules in a case. If a judge is unable to set his politics aside, he has undermined the very foundations of our constitutional order. Judge Bork put it this way:
The democratic integrity of law  depends entirely upon the degree to which its processes are legitimate. A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.
Contrast Judge Bork’s approach to law to William Brennan’s as Adam Winkler, a constitutional law professor at UCLA, describes it:
Brennan used to ask his new law clerks what the most important rule in constitutional law was. They would ponder the question and respond, “freedom of speech,” “separation church and state,” or “separation of powers.” No, Brennan would respond with a wry smile. And then he would hold out one hand with his fingers outstretched. “Five,” he would say. A justice needs five votes to make a majority on the nine-member court. With five votes, a justice could do anything.
The capital “C” cynicism implicit in Brennan’s five-finger approach to constitutional law is breathtaking. Brennan cared not one whit for the text, structure or history of the Constitution. To him, the text was not binding law, but a bothersome inconvenience to be circumvented. What separates Brennan’s approach to the United States Constitution from Joseph Stalin’s approach to the Soviet Constitution? Why, absolutely nothing, of course. Both men treated their constitutions as mere words on a page. Both men were interested only in power, and if the ends to which they directed their power conflicted with written constitutional guaranties, then so much the worse for the constitutional guaranties.
Thomas Jefferson hoped that the constitutional order established by the founders would put an end to the idea that the mass of mankind has been born with saddles on their backs with “a favored few booted and spurred, ready to ride them.” The problem, of course, is that someone is always trying to pull on the boots and strap on the spurs. Nowadays those people are called “progressives.” The totalitarian impulse is at the very heart of the progressive project. How else are they going to force the mass of humanity along the road to their progressive utopia? Unsurprisingly, progressives have always bridled at the Constitution’s limits on their ability to wield raw political power, and from the time of Woodrow Wilson to this day, they have sought to undermine those limits.
For over a century progressives have been fighting an undeclared civil war against the limits to power on which Jefferson placed his hopes. Will they succeed in hollowing out our Constitution? I don’t know, but their project seems to be gaining momentum. The issue remains in the balance, but it is hard to be optimistic. It is common knowledge that our colleges are teaching the next generation to despise the First Amendment guaranty of free speech. The Obama administration waged an eight-year war on freedom of religion and freedom of conscience. After every tragic shooting, progressives call not for cracking down on criminals but for making criminals of law abiding citizens exercising their right to keep and bear arms. Congress has all but abdicated its power to the administrative state. Federalism has long been a dead letter.
How much longer before the people realize that the Brennan’s five-finger approach to constitutional law makes our Constitution a put up job no better than the Soviet Constitution? Will anyone still revere the Constitution and fight for it if they come to believe constitutional law is nothing but a smoke screen covering the exercise of raw power by our robed masters?
Ronald Reagon said, “freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.” Just so. Those who believe history has a trajectory and that that trajectory is inevitably toward greater liberty are simply wrong. The lust for power never goes away. Liberty must be preserved through struggle and resistance to those who believe they are the favored few.
And if we do not resist? If we cede the field to the totalitarians? What then? Well, then we should get used to the weight of the saddle and the sting of the spur. As Solzhenitsyn wrote, if we do not resist, “we are worthless and hopeless, and the scorn of Pushkin should be directed to us: ‘Why should cattle have the gifts of freedom? Their heritage from generation to generation is the belled yoke and the lash.'”