Constitutions Old and New

Duquesne University professor Patrick Lee Miller argues that we no longer live by liberal principles, nor will we be returning to them. The question is by which unwritten constitution will we live?

In this essay I describe our current constitution, that is the order of things which constitutes us. I aim to show how little our life together has to do with the document signed by Washington and the other Founding Fathers, but rather than calling for an impossible return to that document and its liberal principles, I will conclude with some proposals for another, future constitution that might renew our justice, wisdom, and power.

I. Red State Resistance

Consider South Dakota. It has a Republican supermajority. As one of the most conservative states in the Union, in fact, it has had a Republican supermajority since 1996. Yet it regularly fails to pass bills that oppose gender ideology. HB 1057 would have prohibited sex-change surgeries and drugs for children. SB 88 would have required teachers to inform parents when students express feelings of gender dysphoria. HB 1005 would have required students to use bathrooms and locker rooms that correspond to their sex. These and other such bills failed to make it out of the legislature. Why?

The largest employer in South Dakota (seven times larger than the second) is Sanford Health. The company sells puberty blockers and performs gender-reassignment surgeries. Together with the Transformation Project—a trans-rights advocacy group that boasts donations from a national LGBTQ foundation as well as a famous pop singer—Sanford Health hosted the 3^rd Annual Midwest Gender Identity Summit in Sioux Falls. Sanford, the Transformation Project, and the ACLU have successfully lobbied the legislature to block dozens of bills opposing gender ideology. The campaign director of the ACLU boasted: “I think the fact that we have consistently stopped these bills has been a source of hope for folks, like if they can do it in South Dakota, we can do it in our state.”

Another such bill was HB 1217, which would have banned males from competing in women’s sports. Although 66% of registered voters in South Dakota believed that transgender athletes “should only be allowed to play on sports teams that match their birth gender,” and although HB 1217 passed the legislature, it was vetoed by the Republican governor, who had been lobbied by Sanford. On the same day that she vetoed this bill, the company announced a $50 million expansion of the Sanford Sports Complex, “an athletic facility that stood to lose serious revenue if the NCAA pulled its games from the state in protest, as it had in similar situations in the past.”

Sanford is not alone in these efforts. The Chamber of Commerce chapters in South Dakota have reliably joined its lobby against bills that opposed transgenderism. Hochman quotes the local director of the Family Heritage Alliance in South Dakota, who is not alone in noticing the new progressive orientation of corporations against social conservatives. “In Arkansas, their biggest opponent is Walmart. Walmart kills social-conservative stuff. In other states, you know, it’s something else. So within our movement, we have a joke that every state has their Walmart. And for South Dakota, it’s Sanford.” But why has corporate America gone woke? Is it for profit? Yes … and no.  

II. Competing for Status within the New Civic Religion

There has no doubt been some money to be made by associating woke politics with the brand of some corporations, especially those whose customers are already woke. But what about Bud Light? Presenting Dylan Mulvaney as the face of Bud Light, one of the icons of Red America, can’t have been motivated simply by profit.

Something else is going on. In a word, status. The executive who made that decision is not a consumer of Bud Light, let alone a Republican. She is a typical member of theelite class that now manages every major institution in the country, from corporations to universities, from NGO’s to Hollywood, from the media to the civil service.

To gain status in this class, one must signal its values. The higher the cost of the signal, the more status one achieves in the class. The career of that Budweiser executive is not over because she alienated many of its most loyal customers. On the contrary, she’s being celebrated for her “bravery” and will end up with a corner office, if not at Budweiser, then at some other corporation. Failing that, she’ll land on her feet in an NGO, a school of marketing, or somewhere in the bureaucracy. Ultimately it doesn’t matter where she lands because positions within this class are more or less interchangeable. When members of this class make decisions within their institutions, they are not usually rewarded for accomplishing the official mission of their institution (e.g., selling beer), but instead for demonstrating fidelity to this class and its ideology (e.g., trans rights).

I’ve seen this through three decades in academia. The official mission of the university is to pursue truth through research and to disseminate truth through teaching. However, one is not rewarded for either. On the contrary, one is punished for both. Take again the example of sex and gender. Most major universities have programs or departments of “gender studies,” but very few employ experts in the science of sex and gender, namely evolutionary psychology. Indeed, this science is largely ignored, except when it must be scorned as antithetical to the purpose of “gender studies,” which is to show how “gender is socially constructed,” so that it may be deconstructed for political ends. Over the last thirty years I’ve watched this anti-scientific ideology go from the seminars of elite universities to the classrooms of public schools.

The same peculiar logic is evident when it comes to the subject of race. Rather than researching the biological reality of race—undeniable to anyone who has studied this century’s science of population genetics—whole courses, whole fields, and most significantly, whole careers continue in the delusion that race is socially constructed. Again, the purpose of these professors is to identify the power that makes these social constructions, in order to disempower and deconstuct them. Whether it’s gender or race, the target power to be deconstructed is always the white male, with European Christianity a common substitute. To question, never mind criticize, this approach to every inquiry, let alone to the studies of sex and race specifically, is to invite cancellation within the university. This begins with ostracism, then moves to obstruction, and ends—for those courageous or foolish enough to persist—with termination.

Such cases are real, and sometimes notorious, but they are hardly the most pernicious threat to the free inquiry necessary for the university to accomplish its official mission. Much worse is the filter, imposed by professors themselves at every level, to ensure that only those who adopt this ideology are admitted into the profession in the first place. Dissenters learn young to keep their dissent to themselves, or to share it in furtive whispers with others who carefully preserve an obedient persona in public. Universities have ceased to be institutions where truth is pursued and disseminated. Instead, they have become seminaries of woke capitalism, where the next generation assimilates the ideology of the elite, managerial class.

Adepts find employment in the management of all the major institutions, and the best move easily between them because the skills are more or less the same. Whether your’re a marketing executive at Budweiser or the director of Sanford Health, your ultimate goal is not to serve your customers or patients, but to maximize your prestige according to the rules of the new dispensation. These rules are the same now for all the major institutions of the country, as witnessed every summer by Pride Month, where baseball franchises compete with oil companies to outdo each other with rainbow publicity. The last decade, when rejecting the national anthem before a game meant being blackballed within the NFL, now seems like the era of ancient martyrs.

Professors are the preachers of this new faith, competing with each other for status in this new hierarchy by extending and refining it. Most of them are preoccupied with some small corner of the ideology, their sub-specialty, so that none but a few sense their power. But together they comprise what Curtis Yarvin has called “the Cathedral,” explaining how the radical ideas taught at Harvard in 1968 become the mainstream views of the Democratic Party in 1988, and the views of the Republican Party sometime thereafter. Pick any year, the succession is the same: the Cathedral formulates the ideas and trains the next generation of the elite managerial class; this generation matures and then influences the country’s network of major institutions; the Democratic Party implements the appropriate legislation as fast as it can while the Republican Party drives the speed limit.

This is how our politics has worked since at least the Second World War. Yarvin has captured the pattern vividly with an allusion to the demonic sea-beast of H.P. Lovecraft’s horror stories, Cthulhu. “Cthulhu may swim slowly,” writes Yarvin, “but he always swims left.” Why is that? Couldn’t this pattern work in the opposite direction? Couldn’t our universities be seminaries of Christian orthodoxy, say, let alone white supremacy and patriarchy, so that the next generation always moves the country rightward? If the professors of gender studies and critical race theory are to be believed, that’s in fact what our universities were—and by some accounts still are—though even they would grant that the universities are less Christian, lessracist and sexist than they used to be. Cthulhu never swims right. Why is that?

III. Plato’s Constitution

At this point I beg your indulgence because I believe we cannot answer this question, the deepest political question of our timesin my estimation, without introducing Plato. His dialogue Republic was given that name by Cicero, who translated it into Latin and tried to present its philosophy as an endorsement of the Roman republic. But Plato’s actual title was Politeia, Greek for “Constitution.” That’s what it’s about, con-stitution, how things are constituted, especially states and souls. Plato argues that a state with a certain order and structure must be populated by people whose characters are ordered and structured in a correlative way. And vice versa for characters: to produce a generation of citizens with a certain type of character, the state must be ordered and structured in a correlative way. So how should states and souls be ordered and structured? What is the best way?

Plato describes a utopia, which he calls aristokrateia, which simply means rule of the best (aristoi). The best leaders are philosophers, which he is careful to say have little in common with the people who usually go by that title—whether in ancient Greece or modern America—so put people like me out of your mind. No tuna-stained blazers for Plato. Instead, he is referring to lovers of wisdom, where wisdom is knowing what’s really good. In a word, God. Plato’s best constitution is a theocracy, ruled by those who are themselves ruled by what is best in their souls: reason and its love of God. But that is not our concern today. Rather, I wish to focus on one of the four constitutions Plato sees as degenerating from the best one: demokratia (“rule of the demos,” the people).

Each constitution—whether of a state or a soul—is defined by what it takes to be good, what its efforts are devoted to achieving. After what’s really good (namely, God), there are several appearances of goodness around which a constitution may be organized. A constitution aimed at prestige, for example, is a timokratia (“power for honor”); a constitution aimed at wealth, for another, is an oligarchia (“rule of the few”).Democracy has twin goals, freedom and equality, and thisplurality of goods is one of its inherent weaknesses. What if an enhancement of freedom entails social inequality? Or what if the drive to equality compromises freedom? The tension between freedom and equality is a theme of American history, and Plato argues that democracy cannot resolve it. But the problem is deeper because each of these goals is divided within itself.

Take freedom first. Imagine a poor man, an outcast even, who is ruled by reason, his judgment of what is really good, and makes decisions accordingly. He has many external limitations because of his poverty and ostracism, but he is internally free; he is master of his own soul. Now imagine a rich tyrant who can do whatever he pleases, but his judgment of what’s really good is always overruled by his greed or his vanity. He has no external limitations, to be sure, but he is a slave to his base desires. He lacks internal freedom. In Plato’s view, most people do. Thus, when you give them political power (democracy), they use it to satisfy their greed or vanity. Without good judgment, they fail eventually to accomplish even these goals. The internal freedom needed to win their rights degenerates into an external freedom that ultimately impoverishes and debases them.

Next consider equality. Imagine two types of men competing for a prize, say in a musical competition. One type is short, the other type is tall. So long as each one is given a similar instrument, and the same time in which to play it before the judges, we might think they had equal opportunity to succeed. But if the tall ones always win, and tallness is supposed to be irrelevant to success as a musician, we may begin to suspect that the competition is not fair. Not until short and tall men win the prize in equal portions, not until equality of outcome has been achieved, could we be sure that the judges were assessing musical talent only, and not clouding their judgment with irrelevant prejudices about height. (Assuming, that is, we are correct that height is irrelevant to musical talent.)

Plato claimed that democracy was the finest of all constitutions—while it lasts. However, it cannot last. Even if it begins with citizens of the best character, those with internal freedom who value fair competition in which the best, and only the best oneswin, it inevitably declines into tyranny. Successive generations, raised in comfort and security, won’t need the self-mastery and competitive spirit that their forefathers used to achieve external freedom and equal opportunity for themselves. Instead, they will expect these and other rewards without developing the internal freedom needed to win them. They will demand external freedom to do whatever they please, but become resentful of any unequal distribution of rewards.

The only way to achieve totally equal outcomes, they will come to see, is for an omnipotent ruler to guarantee them. Preferring the stable equality he promises to the risks of actual freedom, they willingly surrender their government to him. Once empowered, Plato observes, this demagogue can now do whatever he pleases, and soon becomes a capricious tyrant.

This is a brief history of Communism, prophesied two millennia before the fact. Governments from Russia to China promised to free their masses from the external limitations of poverty and alienation by ensuring equal outcomes for everyone. These revolutions were all advertised as “democratic,” for the sake of the people, but the result was tyrannical authority centralized in a Stalin or Mao for his own aggrandizement. Through much of the 20^th century the Communist countries seemed to be opposed by the Liberal West, and in some theaters they were, but the longer view afforded by our perch in the 21^st century shows the two systems to operate according to the same logic. The Communist revolutions tried and failed to do with one coup what the Liberal West has successfully done with small adjustments over at least a century. Cthulhu swims slowly, remember, but he always swims left.

IV. Liberalism & Postliberalism

Liberalism was the idea that government’s purpose was not to enforce a particular understanding of God and the good life, but to guarantee certain fundamental rights—life, liberty, and the pursuit of property (in John Locke’s formulation). But a liberal government was to guarantee only those fundamental rights (and a few more). Were it to protect a proliferation of rights, these would inevitably compromise the status of the fundamental ones it was conceived to protect. For example, if you and your family have grown crops on a plot of land for generations, the government’s purpose is to protect your freedom to do so. Its purpose is not to ensure that all citizens, even the landless men in your state, have equal incomes. For to achieve that outcome, it would have to distribute the profits from your crops equally among them all. This would be theft, violating your property rights, and thus the very purpose for which such a government was established in the first place.

Yet Liberal governments have not ignored equality. They have traditionally tried to ensure that each citizen has an equal opportunity to work, earn money, and perhaps buy a farm, for example, but their purpose has not been to ensure an equal outcome from all work, an equal distribution of all property. But just as a musical competition in which only tall men won would become suspicious, so too did the American competition for property and status become suspicious to proponents of equality who saw whites winning far more often than blacks. Brown v. Board (1954) determined that it was the purpose of the federal government to ensure that each child had an equal opportunity to get an education, and thus that schools had to be desegregated.

The purpose of liberal government had been to guarantee the fundamental rights enshrined in the Constitution, especially the Bill of Rights, such as those of its First Amendment, including the freedom of association. As such, some states protested that the federal government was violating the Constitution. When Arkansas refused to comply, President Eisenhower sent in the National Guard to enforce the decision. The Constitution of 1788 had been carefully designed to reserve powers to the states, both in its articles and in its Tenth Amendment. With the enforcement of Brown, and then the Civil Rights Act ten years later, that purpose too had been flouted.

Ibram X. Kendi has recently proposed a 28^th Amendment, one that would guarantee racial equality. He envisions a new federal agency to enforce this Amendment, the Department of Anti-racism, with power to review all policies and officials at every level of government for racial bias. This would obviously ignore the Constitution’s division of powers, by making state and local governments subservient to his new Department. It would also abrogate the free speech provisions of the First Amendment, by making the private speech of every government official open to federal review. Conservatives were outraged by this open challenge to the old Constitution, but what they did not realize is that Kendi was merely making official what has been the unofficial constitution since Brown v. Board (for more on why this was an inevitable development, see Jesse Merriam).

The Brown decision did not yet require that educational outcomes for the races be equal, but as Plato prophesied, that was to come. If the only way to be sure that equal opportunities to education have been afforded is to equalize educational outcomes—to eliminate “disparate impact” as proponents say nowadays—schools must be not only be desegregated, but everything must be done to ensure that the races achieve equal outcomes. That was a powerful mandate, for which the Department of Education had to be established in 1979. Indeed, as the Civil Rights Act was interpreted to include a proliferating number of protected classes (e.g., women, gays, and now transgenders), the bureaucracy has necessarily been empowered to seek equality of outcome throughout the whole society. This bureaucracy is in Washington, of course, but its influence reaches the HR department of every corporation, university, and branch of the military. This is the Cathedral.

Its powers of surveillance and discipline would be the envy of Communist tyrants because it appears benign, as the imperative to treat people equally. If someone tells a salty joke on a campus, if a group is organized to exclude someone of the protected classes, if a religion teaches something offensive to the new dispensation, anyone can make an anonymous charge to the Kommisars who now populate the administrations of every major institution in the country. The First Amendment of the written Constitution is supposed to protect freedom of speech, association, and religion. Words, words, words. Our old, written constitution, devoted to freedom, has been displaced by a new, unwritten one, devoted to equality.

More precisely, we have kept our formal written Constitution and have continued to speak and think—or at least some of us have done so—as if it is still the structure of our state. We pretend—and in some cases believe—that we live in a liberal order rooted in philosophers such as Hobbes and Locke,statesmen such as Hamilton and Madison. But in fact our state is otherwise. Our actual constitution has other philosophical and political sources. Now is not the time to investigate that genealogy, but according to this postliberal order the penultimate purpose of government is to equalize outcomes: between blacks and whites, between women and men, between gays and straights, between transgenders and cisgenders. Its ultimate purpose is much more sinister, as Nietzsche showed, but that story is for another occasion.

V. Tyranny Old and New

Here is where Plato helps. First of all, his Politeia is about neither a Republic nor a written document, but instead about actual, unwritten constitutions. Using him, we can analyze our actual political order without being tempted by liberal fantasies of separated powers, fundamental freedoms, and written guarantees. Those were beautiful ideas, and perhaps we enjoyed them for a time, but they’re no longer our political reality. So long as we’re seduced by them, a perennial weakness of nostalgic conservatives, we render ourselves politically impotent. Secondly, Plato teaches us the logic of democracy: it longs for total external freedom and totally equal outcomes, but because these are incompatible, it must choose between anarchy and tyranny. Rightly fearing anarchy, it comes to see thatequality of outcome can be plausibly promised only by acentralization of power (tyrrania needs no translation).

If Plato is correct, then, our old constitution of freedom had to be replaced by the new one of ideal equality, before becoming a tyranny in fact. In American terms, our government had topromise equal opportunity, first, then promise to fight systemic racism, patriarchy, cis-heteronormativity, or whatever is thought to stand between us and the egalitarian paradise imagined by John Lennon. Finally, however, these promises of equality have been but a prelude and pretext for the centralization of power in the Cathedral. We are moving towards an inverted theocracy, where the old God written in scripture has been dethroned by a new god who has yet to show his face.

This is why Cthulhu always swims left. Our political order is following a natural, logical progression from liberal democracy to illiberal democracy to tyranny. This is not a tyranny such as Plato imagined: the capricious rule of a psychopathic man. Nor is it quite the devolution of the Russian Revolution from a committee of soviets to the whims of Stalin. It is a particularly subtle form of tyranny, unique to our times. There isn’t time left to me on this occasion to describe it, but we have already examined one feature of its rule. Professors such as Ibram X. Kendi (on race) or Judith Butler (on gender) function as high priests of its ruling ideology, in effect its theology. Other professors toil in obscurity to elaborate this theology, apply it to every corner of intellectual inquiry, and disseminate it to the managerial class of woke capitalism.

To return to the place where we began, Sioux Falls, Plato and Yarvin have helped us see why a deeply red state such as South Dakota cannot resist the intrusion of gender ideology into its hospitals, schools, sports, and bathrooms. Such resistance is unconstitutional. It tries to swim against the powerful tide of the egalitarian, postliberal constitution that has been our political reality in the United States and indeed the entire Western worldsince at least the postwar period. As such, it will lose.

Ron DeSantis has shown that red states such as South Dakota and West Virginia can, with ingenuity, win battles against the intrusions of this new Leviathan. I applauded his efforts to keep Florida open during the pandemic, to protect children from gender ideology in the schools, and to reform New College from a woke seminary to a real university. I wish I had such a governor in my state of Pennsylvania. I also wish my state had representatives such as Pat McGeehan, whose Defend the Guard bill throws a wrench into the machine that has lost three major wars without ever declaring them as such, let alone securing the ratification of Congress required by the old, written constitution. See how that works, in foreign as well as domestic policy?  

We need more legislators like DeSantis and McGeehan—clever and courageous men with a keen eye for justice and the precise laws necessary to effect it—but I don’t think the efforts of just renegades can turn the tide so long as they’re met by an entrenched Cathedral and the global class of managerial elites it keeps producing. Beyond justice, then, two additional fronts need to be opened in this war for our country: power and the wisdom to use it well.

VI. Power and Wisdom

First, power. The Left has been winning for so long that the Right has forgotten what that feels like. At the state level, recall South Dakota. At the federal level, remember Trump: he went to the White House with a clear mandate to drain the swamp, but it’s as fetid as it’s ever been. This is not entirely his fault, it’s not even mostly his fault. Cthulhu always swims left, and we’ve seen why. It’s not sufficient to enact laws or policies that cut off a tentacle here or there. For as soon as you sheathe your sword, two more will grow. For every Republican representative, after all, there are a thousand civil servants trained by the Cathedral, and nothing gets done in the new constitution without bureaucratic intervention.

What the Right needs, therefore, is a new set of agencies, enforcing a new set of regulations to accomplish its goals. If you came of age during the Reagan era, when deregulation seemed necessary to dismantle the Leviathan, this will seem anathema. But that didn’t work, except as a temporary relief, and look where it has gotten us as a long-term strategy. The Left has been creating agencies, staffing, and funding them with the Cathedral for decades. It’s time to fight fire with fire, to worry less about the ideal, small government, and more about the government we need now to save our country: to protect our children from mutilating surgeons and experimental injections, to prevent violent gangs from “peacefully protesting” for an entire summer, to restore law and order to cities where the police have been undermined and defunded, to secure our own borders with thebillions we are wasting to restore the borders of a foreign nation.    

So much for power. What about wisdom?  We need to train a new elite, build a rival cathedral to the one that has been producing globalists since the postwar period. This is harder than it sounds because this rival cathedral must be built in the shadows in order to circumvent the regulators whose purpose is to ensure that no such rival sees the light. It must therefore eschew the apparent goods of prestige and wealth, even those of freedom and equality, and above all that of power, so that this rival cathedral can pursue wisdom (knowing what’s really good). We’ve seen what has happened to an academy that goes to bed with power: intellectuals eventually become ideologues—in effect, priests—who propose apparent goods as if they were real in order to promote their own prestige.

This division of wisdom from power will require a stablealliance between two very different types of people. On one hand, there must be those politicians I’ve just described, politicians who are focused almost exclusively on consolidating power. On the other hand, there must be philosophers who are focused entirely on the truth of what’s really good. In earlier times, this was the alliance between kings and priests that made Europe great, or the alliance between emperors and philosophers that characterized Rome at its height. Two very different types, but it can be done. Indeed, as an alliance between philosophers and warriors, it is not far from Plato’s utopia.

The perennial complaints against that utopia have been that it is a fantasy and a tyranny. But if our alternative is the tyrannical fantasy of equality in which we live, it doesn’t look so bad after all. A constitution such as our present one, devoted to equality of outcomes, cannot promote superior people, the best ideas, the plans that actually work. By putting equality before excellence, it keeps degrading once great institutions with inferior people, bad ideas, and fantasies more ugly than beautiful. Look at our present regime, mired in inflation, mediocrity, and corruption—for now. On the horizon is a state much worse: ignorance, poverty, racial conflict, and ultimately slavery to foreigners who never worshipped this new idol. Before we come to that dismal end, however, there is time to protect ourselves from its worst intrusions, consolidate power for our side, and train men fit to remake America according to a better standard.