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The Constitution won’t save America It has lost touch with the nation's twisted soul

President Biden is censoring America. Drew Angerer/Getty Images

President Biden is censoring America. Drew Angerer/Getty Images


April 1, 2024   8 mins

Last month, the US Supreme Court considered arguments in a landmark case on the legality of America’s metastasising censorship-industrial complex. The case, Murthy vs Missouri, rests on whether White House requests that Twitter and Facebook take down alleged Covid misinformation constituted illegal censorship that violated the First Amendment right to free speech.

Given the ample evidence of the Biden administration’s sweeping censorship efforts in recent years, many legal observers assumed the case was a done deal. And yet, during the hearing, it quickly became apparent that a majority of the court’s justices were sympathetic to a counter-argument that, actually, it’s the Government who’s the real victim in this case — because what “free speech” really means is that the Government has a right to tell Facebook that you need to shut up.

The court’s newest and most innovative justice, Ketanji Brown Jackson, stole the headlines with comments about how she was “really worried” about “the First Amendment hamstringing the Government in significant ways in the most important time periods” — i.e. elections involving Donald Trump. But even some of the court’s allegedly more “conservative” justices such as Brett Kavanaugh and Amy Coney Barrett appeared openly sympathetic to the idea that it’s more important to preserve the national security state’s uninhibited power to bully platforms into silencing information they consider “harmful” than it is to preserve fundamental individual rights. In short, although a ruling on the issue won’t be released until this summer, as of now the Supreme Court seems poised to effectively enshrine the legality of mass state censorship and deliver what could be a mortal blow to America’s tradition of free speech.

Many conservative and classical-liberal American political commentators seem genuinely shocked by this development. They assumed this should be a pretty open-and-shut case, with the Federal Government’s behaviour — being a clear violation of the First Amendment of the Constitution — sure to be righteously smacked down by the conservative-leaning court. But this assumption was deeply naïve. In fact, their broader, rather quintessentially American faith in the Constitution’s ability to establish and protect foundational liberties was probably always badly misplaced.

Perhaps this unfortunate moment can at least offer an opportunity to induce some much-needed realism about the Constitution, and its relative impotence in the face of tyranny today. In the naïve schoolhouse view, the Constitution remains a sacred, quasi-magical text spelling out our rights and protecting them by limiting the powers of government. The words on its pages have been elevated to semi-transcendent status, as if they were a form of scripture endowed with their own sovereign authority. This authority sets the rules of what is permissible, and the robed wise men of our courts interpret, sola scriptura, these national tenets to determine if new laws and practices conform to or have overstepped the authority granted to them by the Constitution. In this sense, the Constitution forms the foundation for the rule of law.

Those still holding to this view may further believe that the words of the Constitution’s text also established the foundational character of the American nation, becoming the enduring wellspring of our unique national culture and way of life. Finally, they are likely to assume that it is precisely the fact that the American Founders took the step of codifying well-reasoned ground rules in writing that has made the United States an exceptional nation inherently more resistant to tyranny than those which failed to develop clear written constitutions.

Sadly, however, while this is a comforting myth, it is a myth nonetheless. Most obviously, the Constitution does not, of course, have any sovereign authority of its own. It doesn’t make its own decisions as could, say, a living monarch. And although officials may swear oaths to uphold and defend the Constitution, it cannot hold them accountable or enforce the rights and limitations it delineates. Only other people can do that; only individuals can rule. This is a rather simple point, but many Americans seem to want to actively ignore its reality, preferring to see power as something that flows from and is constrained by the Constitution, rather than as something which can determine its meaning and application. The Constitution has no more intrinsic power than any other piece of paper.

What is even more important to understand is that the Constitution isn’t actually our constitution. In fact, it has never been America’s true constitution. That’s because the Constitution (the written document) is only a representation of something real — or rather, in this case, something which used to be real. Its words were an attempt to encapsulate the Founders’ expression of the young Anglo-American nation’s implicit, unwritten constitution. By “constitution”, I mean — as most of Western history’s great philosophers would have understood that word — the unconscious, historically accumulated essence of the nation’s organic and fundamental collective character: its public spirit, way of life, and common understanding of authority and the moral laws of right and wrong. In this, the Founders succeeded wonderfully in their day. But the document they produced was and is a map, a symbolic representation of a cultural and spiritual territory; it is not the territory itself.

No one understood this distinction better than the political philosopher Joseph de Maistre. Writing in 1809, he scoffed at the idea that any document written by mortal hands could ever design and establish genuinely new foundational laws. The spirit of any such laws was invariably already written on the hearts of those men who attempted to crudely reduce them to mere lines on a piece of paper. “Precisely what is most fundamental and most essentially constitutional in the laws of a nation cannot be written,” he wrote. The true constitution of a strong and functional nation was always “that admirable, unique, and infallible public spirit, beyond all praise, which directs everything, which protects everything. What is written is nothing.”

“Only when the society is already constituted, without it being possible to saw how, it is possible to declare or to explain in writing certain particular articles” of a particular society’s true, unwritten constitution, he argued. But attempting to capture these principles in writing is largely pointless. In fact, he believed that such “writing is invariably a sign of weakness, ignorance, or danger”, in that “every written law is only a necessary evil” that “is of no authority at all unless it has received a previous and unwritten sanction”, and in “so far as an institution is perfect, it writes less”. (Here he echoes that famous motto of Tacitus, pessimae reipublicae plurimae leges: “the more numerous the laws, the more corrupt the state.”) He scorned the “profound imbecility” of “those poor folk who imagine that lawgivers are men, that laws are a piece of paper, and that nations can be comprised of ink”.

These days I suspect he was right, and that his insight can help explain a lot about the degeneration of society and governance that has since occurred in the United States (and various other Western nations as well). When the Founders drafted the Constitution, they were giving expression to an essential constitution of the American nation that already existed in unwritten form, and which continued to endure for a long while. But in time, even as the written Constitution continued to reign in official law, the spirit that governed the American people changed as they changed, and the corresponding unwritten constitution withered away and was replaced by a new intrinsic constitution. In fact, it’s probably accurate to say this happened multiple times, or in multiple stages. Yet in any case the unwritten constitution animating the American state today bears almost no resemblance at all to that preserved in the historical relic of the Constitution.

What is America’s implicit constitution today? Naturally, it’s never been fully captured in writing, though some authors, such as Christopher Caldwell, have variously attempted to nail it down here and there. If pressed to summarise, I might say it is one that values safety and security over freedom; top-down control over self-governance; empty egalitarian posturing over excellence; material comfort over virtue; entitlement over responsibility; bureaucracy over accountability; narcissistic emotivism over duty; fantasy over reality; global ambitions over national loyalty; dreams of progress over eternal and transcendent truths — in short, the same spirit that animates our out-of-control managerial regime. It’s the spirit which saw that regime not hesitate to impose Covid lockdowns, or trash the rule of law and attempt to jail political opponents (and for half the country to view this as acceptable or even admirable); it’s what has produced Supreme Court justices who fret free speech would undermine the security state.

Much of what we’re seeing today in our seemingly revolutionary times is the outline of this new unwritten constitution becoming increasingly visible in law and government as the chasm of difference between it and the original American constitution becomes too wide to conceal any longer. More and more often now, the new regime fails to keep up appearances by successfully wrapping itself in the confining ritual pretences of the Constitution. Its mutated form is simply growing too hulking and twisted to fit.

It may be true that a remnant of the old constitution — the old American nation — remains alive in the hearts of some portion of the American people. But if so, it is now battered and bloody, struggling for breath as the new constitution seeks to finish it off once and for all. Perhaps this is the best way to describe the true cause and nature of the existential political and cultural clash that has riven the American body-politic and continues to grow fiercer by the day: it is indeed, as Joe Biden has put it, a final “battle for the soul of America”.

This is the real reason why the Constitution can’t and won’t save us now: in today’s struggle it no longer has any real power over men because it no longer corresponds to the unfortunate new inner reality of America’s unwritten constitution. The old “infallible public spirit, beyond all praise, which directs everything, which protects everything”, which the document once embodied, is no longer there to give it substance.

John Adams once warned that “our Constitution was made only for a moral and religious people”, and that, should that national moral character disappear, the resulting political passions “would break the strongest cords of our Constitution as a whale goes through a net”. Adams was of course referring primarily to Christianity and its system of moral order, and Maistre would have very much agreed. In his view, the origin of a strong, stable and legitimate constitution could rest only in God and what we might call the popular fear of God: a sincere (even if subconscious) belief that to transgress the constitution (written or unwritten) was in a way to transgress divine law, an act liable to be punished accordingly. Ultimate authority then effectively rested above any man or document. Without this source of higher authority, the constitution would crumble and only the whims of petty tyrants would remain.

“The Constitution is no longer alive with any such frightful sacred authority; it has been thoroughly profaned.”

It sure seems that this is what we’re witnessing today. Whether or not we attribute the key role to Christian belief or to some broader but less easily defined national moral character, it seems clear to me that the Constitution is no longer alive with any such frightful sacred authority; it has been thoroughly profaned, and therefore opened to abuse. Nor is there today even a shared national understanding of its meaning and unwritten spirit. Whereas once few people would have dared try to blatantly twist its words to mean something that all would know implicitly they could not mean, our rulers no longer hesitate to do so — and often succeed. They succeed because that implicit constitution has been replaced.

I know that for Americans, who put so much faith in our Constitutional tradition, this is probably a particularly difficult and demoralising reality to accept. But accept it we must. Otherwise, we won’t be able to grasp the nature and extent of the challenge facing us. No amount of legalistic quibbling about the details and original meaning of the Constitution will rescue us from our present situation; nor could the nation’s highest court, even if it weren’t full of quislings. Even if the Supreme Court were to strongly reaffirm the principle of free speech, it would provide at most only a temporary reprieve — a ruling which the regime and its institutions would in all likelihood simply proceed to ignore, knowing they could get away with it.

No court has the power to define America’s true, unwritten constitution. If we want to change that constitution, and so restore any substance to the Constitution, then what will be called for is nothing less than a sustained and determined national cultural, intellectual, religious, and political counter-revolution sufficient to re-mould the very animating spirit of the state. It would, in other words, require an effort just as sweeping as the long revolution which dismantled and subordinated our original constitution in the first place.


N.S. Lyons is the author of The Upheaval on Substack.


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J Bryant
J Bryant
1 month ago

If we want to change that constitution, and so restore any substance to the Constitution, then what will be called for is nothing less than a sustained and determined national cultural, intellectual, religious, and political counter-revolution sufficient to re-mould the very animating spirit of the state.
Exactly. So where might this counter-revolution come from? Has it begun. If so, where? Does it stand a chance of succeeding? So few people are willing to write about those questions.

Max Price
Max Price
1 month ago
Reply to  J Bryant

I think people are shy because they instinctively don’t want to think too much about it. Why? Because there will be blood.

Terry M
Terry M
1 month ago
Reply to  Max Price

We will learn quite a bit about whether blood will flow after November 5th.

Alex Lekas
Alex Lekas
1 month ago
Reply to  Terry M

In light of your comment, it bears repeating that multiple US cities took precautions during the last election, all of them in case Trump won.

Obadiah B Long
Obadiah B Long
1 month ago
Reply to  Max Price

That’s a big part of it.
If, as the author suggests (and I agree), Christian traditions and values are a sort of “prequel” to the Constitution, then we must consider that the Christian tradition has been deeply divided over bloody enforcement of virtue, versus tolerance. In recent centuries, tolerance has won, for better or worse.

UnHerd Reader
UnHerd Reader
1 month ago
Reply to  Obadiah B Long

But today tolerance goes by the name virtue? Visa versa?

UnHerd Reader
UnHerd Reader
1 month ago
Reply to  Obadiah B Long

“We were in no way founded as a Christian nation” James Madison, Treaty of Tripoli

Julian Farrows
Julian Farrows
1 month ago
Reply to  UnHerd Reader

I never liked James Madison. I am a staunch anti-Federalist.

Andrew Holmes
Andrew Holmes
1 month ago
Reply to  Max Price

It is precisely your thinking that can result in the final destruction of the constitutional order. For once started, violence with the goal, say, of protecting free speech, has in itself suppression of speech. There is no end to the process.

Obadiah B Long
Obadiah B Long
1 month ago
Reply to  J Bryant

There are not so few writers as you suggest, but they are suppressed and censored. My guess is that when sufficiently provoked, there are many more capable fighters than writers, and they are the ultimate deciders, always.

Lancashire Lad
Lancashire Lad
1 month ago

The issue this well-constructed essay highlights may not be one which its author would necessarily wish to subscribe to.
In setting out his case: that a written constitution is only as worthwhile as the spirit of the people who designed it, he therefore undermines the prospect of revival alluded to in the final paragraph. Why? For the arcane reason that as nations change and evolve (for better or worse), the spirits of its people(s) will always come into conflict with any documented constitution.
Upon which ‘first principles’ would any new constitution be based? This isn’t to argue that national renewal, whether framed in political or spiritual terms, isn’t required; simply that adopting a new constitution then sets up a hostage to fortune.
Here in the UK, it’s been a matter of debate for far longer than in the US. We’ve largely tried to avoid settling on a written constitution, perhaps wisely?

T Bone
T Bone
1 month ago
Reply to  Lancashire Lad

The important aspect of the US Constitution is the separation of powers. Everybody talks about the Bill of Rights but the reason the US system of government historically functioned so well is that its uniquely positioned to limit government overreach. Each branch checked each other.

Right now the US has an issue with excessive Executive and Legislative Agency Power due to Administrative Capture by a Progressive Anti-Constituonal order. But…its an issue that can be resolved eventually through debate without force because the system has such good checks. The checks imit centralization.

As dire as things may seem, the US is anything but spiritually broken. I’m not saying Conservatives have some easy future victory…but it’s not a society of quitters. You can already feel Wokeness Dying here.

Terry M
Terry M
1 month ago
Reply to  T Bone

Solid analysis. When the media-political-bureaucracy complex actively subverts both the people’s understanding of the Constitution (as they do every day), and overtly acts outside the bounds of the Constitution, we get the mess we have today.
I have greater faith in the SCOTUS than you do, but only when they begin to rein in the m-p-b complex will we see progress.
So, yes, this is a critical juncture in the future of the USA. We desperately need to make sure that Trump is re-elected so that he, rather than the current demented morons, can name Justice Thomas’s replacement in a few years .

Tony Price
Tony Price
1 month ago
Reply to  Terry M

Justice Thomas should go now – he is so obviously corrupt!

Alex Lekas
Alex Lekas
1 month ago
Reply to  Tony Price

How so? And don’t parrot what you’ve been told to say. Has he tried to coerce schools to buy books he’s written as ‘the wise Latina’ did? Did he or his staff leak an upcoming decision to the press? Or is he just the wrong kind of black guy for you?

Alex Lekas
Alex Lekas
1 month ago
Reply to  Tony Price

How so? He’s not pushing schools to buy his book, as the Sotomayor camp did. He didn’t leak word about an upcoming ruling on a contentious issue. Since his alleged corruption is so obvious, you’ll have no issue providing examples.

Michael McElwee
Michael McElwee
1 month ago
Reply to  T Bone

Yes, who was it that said: If it weren’t for the structure of the body of the constitution, it’s “checks and balances,” the Bill of Rights would be “nothing more than a laundry list of good intentions?”

T Bone
T Bone
1 month ago

Scalia

Edward McPhee
Edward McPhee
1 month ago
Reply to  T Bone

Oh how I hope that you are correct. Living in Scotland our magnificent devolved assembly, devised by Tony “weapons of mass destruction” Blair, has passed a new law that should you say or write anything that another person may feel “hateful” or believe that someone else would feel was “hateful”, then you will be guilty of a “hate crime”. Naturally, as the law is now in place, I do not mean anything hateful with this comment and shall immediately apologise should that not be the case. Should an apology not suffice i will enroll in whatever Stonewall course is required to moderate my thought processes. We seem to have morphed back to 1984.

Carl Valentine
Carl Valentine
1 month ago
Reply to  T Bone

I hope you are right… (fingers crossed)

Steve Jolly
Steve Jolly
1 month ago
Reply to  T Bone

I wholeheartedly agree. Even today, there’s nothing more American than questioning the government, ignoring the law when called for, and protesting even the slightest impositions. I’m sure the justices were all probably looking at the things that have historically been done during wartime, especially WWII. Rightly or wrongly, the precedents are established law and the whole job of judges is to make a personal judgement and then justify it with some kind of historical or legal precedent to make it seem like they didn’t actually do anything. The Supreme Court can’t rule against Americans being their contrarian selves. The ruling is almost irrelevant. Americans already distrust the media and tech giants. Every poll on the issue says as much. People can and do get news from other sources from internet publications that lean hard in one direction or the other all the way down to regular people with no media background doing their own podcasts and blogs. The cat is long since out of the bag and no court ruling is going to be sufficient to stuff it back in. To do that, they’d have to have a system like China and the police power to back it up, but Americans would definitely start killing each other before that happened, so whatever the court says, whatever pittance of policing and surveillance the court allows, it won’t be nearly sufficient to make Americans believe what the government tells them or do what it tells them without question.

Hugh Bryant
Hugh Bryant
1 month ago
Reply to  Lancashire Lad

Perhaps wisely? Tell that to the gender critical women of Scotland (and England – in a year or so).

Lancashire Lad
Lancashire Lad
1 month ago
Reply to  Hugh Bryant

Try looking at the last 1000 years, not the last few. The parliament in Westminster recently overturned a piece of Scottish gender legislation, so i’ll take my chances with what we have, thanks.

Hugh Bryant
Hugh Bryant
1 month ago
Reply to  Lancashire Lad

The parliament in Westminster recently overturned a piece of Scottish gender legislation

Nope. Not so. Sunak overturned that legislation. A Labour government would most likely have endorsed it.

0 0
0 0
1 month ago
Reply to  Lancashire Lad

An excellent piece. Been thinking about this very subject over the past several months and frankly there is nothing in this article with which I can honestly disagree.

Brad Sealand
Brad Sealand
1 month ago
Reply to  Lancashire Lad

Your point is extremely well-taken. The Constitution is an aspirational roadmap — it is full of absolute concepts, not absolute rules. Attempting to navigate by an “originalist” or “textual” reading of the Constitution is like trying to navigate to California using an 18th Century map. I’m a gun owner, but (e.g.) giving every yahoo who walks into a gun shop access to an AR-15 because the Founders wanted to make sure that militias could defend individuals from concepts like Conscription in the world of 1791 is insane. The vast majority of Americans — including gun owners — believe there must be some measures to prevent modern military weapons from getting into the hands of people who have no idea how to use them. And yet, as you state, the spirit of the people will always come into conflict with any documented constitution.

Carl Valentine
Carl Valentine
1 month ago
Reply to  Brad Sealand

“The vast majority of Americans — including gun owners — believe there must be some measures to prevent modern military weapons from getting into the hands of people who have no idea how to use them.”
So guns are ok as long as you ‘know’ how to use them??
Maybe knowing ‘not’ to use them is better?

Brad Sealand
Brad Sealand
1 month ago
Reply to  Carl Valentine

I have friends who are ex-military. Some of them have semi-automatic weapons that they use on ranges. They keep their guns locked away. They’ve had extensive training on how to handle them safely. Many vets feel it’s insane to allow someone with no training to walk into a gun shop and buy an assault weapon. We can disagree about whether it makes sense for these rifles to be available at all, but I’m sure we agree that if (as is the case now in the US) they ARE available, that some sort of training should be required both in terms of handling the weapon and in terms of storing the weapon so that it doesn’t get into the hands of a 17-year-old who goes on a rampage.

Elizabeth Bowen
Elizabeth Bowen
1 month ago

huh? revolution is not the only way to make change, or even to amend the constitution
 you did write a lot tho

Christopher Chantrill
Christopher Chantrill
1 month ago

Well yes. But the whole point of Republicans nominating “original intent” justices is precisely to move the court away from the received wisdom of the managerial state.
And the whole point of Chief Justice Roberts is to be Mr. Brooke and warn against “going too far.”
And the whole point of Justice Jackson is to be a faithful adherent of the managerial state that nominated her.
Any questions?

Obadiah B Long
Obadiah B Long
1 month ago

No questions, your honor.
But the Supreme Court has ultimately bowed to the managerial state and acted to preserve its own image since Justice Owen Roberts in 1932. The Obamacare decision by Chief Justice Roberts was based on essentially the same political considerations. We have yet to see an originalist Court.

N T
N T
1 month ago

here is the actual text of the first amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

you can decide for yourself how the court should and will rule. this piece, breathless and panicked, does a poor job of explaining how and why the government overstepped. it may have overstepped.

Julian Farrows
Julian Farrows
1 month ago
Reply to  N T

It’s quite simple. Western governments are currently made up of politicians who hold their constituents in sheer contempt – cattle too soft and weak to stand up to them. There is no left or right, just wolves and foxes arguing about who gets to eat the farm animals.
Europe is in more trouble than America. Its welfare states are running out of money and its governments live in sheer terror of the barbaric hordes clamoring at the gates demanding access to spoils that are no longer there. No matter whether European governments support Israel or kowtow to Palestine, the Gaza conflict will spread westward, slowly at first and then rapidly. All the while, Russia and China will be waiting quietly on the sidelines to claim whatever is left.
If Trump is elected this year, which is highly likely, the US government will begin to rid itself of all the self-hating woke flagellants. It’s starting to happen already with the purging of DEI from universities.
Whatever the election outcome, this year will be extremely tumultuous. I hope I’m wrong, but I predict another 9/11-like event will occur this year.

Neiltoo .
Neiltoo .
1 month ago
Reply to  Julian Farrows

You say that Europe is in more trouble than America but the USA looks a lot closer to civil war than Western European countries do.

Tony Price
Tony Price
1 month ago
Reply to  Julian Farrows

Let me correct your statement: ‘America is in more trouble than Europe. Its state is running out of money and its people live in sheer terror of the barbaric hordes clamouring at the gates demanding access to spoils that are no longer there.’

AJ Mac
AJ Mac
1 month ago
Reply to  Julian Farrows

That’s an irresponsible prediction to announce without any substantive context: What is the way in or out of that?
For example: Is there a difference between the chances of a 9/11-scale event occurring during a Trump or Biden administration, and why? (Recollect that Bush Jr. was a family-values conservative).
What can we do, in your view–short of civil war or Armageddon–to reduce our vulnerability to such attacks?

Tony Price
Tony Price
1 month ago
Reply to  N T

I understand from the article that no law is proposed though, just a request of some sort, so how is that a constitutional issue?

Walter Marvell
Walter Marvell
1 month ago

Coercion. Everywhere we see the New Look anti democratic Progressive States of the West overturning, violating, trashing the social contract to empower an Orwellian Big State. UK,US, Canada, EU – its all the same. Their extreme ideological credos – coercive Net Zero/Climate Hysteria Degrowth and restrictions; subversion of nation states via mass migration/open border multiculturalism and its DEI attack dog & coercive and illegal policies such as lockdown imprisonment and soon our old friend euthanasia (of the useless poor, rich home owning grannies and the mentally infirm young ) to support their Big State Health Industrial or Security Complexes….all forming a Big Fist our detached mainly unelected New Technocratic Elites are only to happy to wield in our faces. Law has been captured these past 30 years – so why the surprise that they are participating in this nonstop war on our freedoms, our enterprise and communal bonds?

Gordon Beattie
Gordon Beattie
1 month ago
Reply to  Walter Marvell

Walter Marvell,
SPOT ON

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0 0
1 month ago
Reply to  Walter Marvell

Amen! And speaking of euthanasia, it’s already being employed on the sly by the health oligarchy. As official governmental policy it’s only a matter of “when”, not “if.

Mark M Breza
Mark M Breza
1 month ago
Reply to  Walter Marvell

Anyone who starts out their argument that the democrat liberals are leading a tyrannical government has to be counted as overly paranoid with a sense of unreality.

Walter Marvell
Walter Marvell
1 month ago
Reply to  Mark M Breza

Address the arguments before you abuse.

Carl Valentine
Carl Valentine
1 month ago
Reply to  Walter Marvell

The elites, Big Tech, big pharma, big corporations, military wish to control us. Spending and inequality are out of control, people are increasingly aware of this and the elites know it. Lockdowns, surveillance political control serves the purpose of protecting them from violent revolt. Zuckerberg et al for the guillotine anyone?

Barry Hynes
Barry Hynes
1 month ago

How disheartening and how true. Without the will of the people the constitution is just ink on paper. In my judgment the most beautiful foundational and indeed unusual document ever written. A document that expressed the essence of the enlightenment. The respect and protection of the liberty of the individual over the tyranny of the majority as well as the power of the government.

A lady asked Dr. Franklin, ‘well, Doctor, what have we got a republic or a monarchy?’ ‘A republic,’ replied the Doctor, ‘if you can keep it.’

 referring to the 1787 journal of James McHenry, a convention delegate from Maryland.

AJ Mac
AJ Mac
1 month ago
Reply to  Barry Hynes

It also becomes quite inert without a general the willingness to make the Constitution new again. It is not a work of magic power or pure eternal wisdom. Recall that 10 amendments, the Bill of Rights, were needed from the very outset in order to get the states and their citizenry onboard.

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. – Thomas Jefferson

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors –ibid.

While I don’t share Jefferson’s confidence in the steady Progress of the “collective” human mind toward Enlightenment, I think these passages provide useful context from one authoritative member of the Founding Generation.

Rasmus Fogh
Rasmus Fogh
1 month ago

I’d like to thank Unherd for making it easy to evaluate articles without having to read them to the end. When you see the words “the national security state’s uninhibited power to bully platforms into silencing information.” (or the words “Thomas Fazi“, for that matter), you immediately know that you should not spend any more time on the article. Fortunately there are many other articles that – agree or disagree – are well worth reading.

Allison Barrows
Allison Barrows
1 month ago
Reply to  Rasmus Fogh

I know immediately when I see the words Rasmus Fogh what to dismiss as crackpottery.

Rasmus Fogh
Rasmus Fogh
1 month ago

Fair enough 😉 Though I would have hoped to be promoted to ‘crazily wrong’ at least.

AJ Mac
AJ Mac
1 month ago
Reply to  Rasmus Fogh

On the contrary, you are one of the sharper and more genuinely independent-minded people who bothers to post thoughtful comments here.
Ms. Barrows–while smart, with a sense of humor and a mind of her own–has become a rah-rah Ron DeSantite and raving anti-wokestress (she may take that as a compliment).
I agree with you on Thomas Fazi.

Saul D
Saul D
1 month ago
Reply to  Rasmus Fogh

What’s your opinion on the Twitter files? Is there a role for federal investigators to request that individuals are muted in the public square? And how does this balance against constitutional freedom of speech? There are very large questions at play here about the relationship between citizens and the state that are playing out in multiple countries and systems. It’s a discussion which is going to stay with us for some years about who should be and is in control.

R.I. Loquitur
R.I. Loquitur
1 month ago
Reply to  Saul D

“Is there a role for federal investigators to request that individuals are muted in the public square?”

Government working with Big Business used to be known as Fascism.

Rasmus Fogh
Rasmus Fogh
1 month ago
Reply to  Saul D

I have not got a clear opinion. Government control sounds like a high risk of autocracy, not to mention a no-holds-barred fight to be the one who holds the levers. On the other hand leaving people’s information supply to the unfettered attention-mining algorithms, billionaires with an agenda, woke corporates, deepfake pornsters, foreign intelligence services, anti-vaxxers and election deniers does not really sound any better. Whatever you think of the COVID episode, specifically, you could make a decent case for government being allowed to act against people who are trying to sabotage national health policy in the middle of a medical emergency – and spreading lies to do it.

The obvious solution where I come from would be a government and parliament that could be trusted by most people to stay out when it could and intervene sensibly when it had to. There are places that can do that, but in winner-take-all two-party systems like the UK, US or India that probably sounds terminally naive.

It is worth discussing – but this article does not look like it has anything but frothing partisanship to offer.

AJ Mac
AJ Mac
1 month ago
Reply to  Rasmus Fogh

More predictable agreement with most of that. Especially your last paragraph, hence the dutiful endorsement of this piece by most in the BTL (un)herd: it’s vitiated by the “Right kind of partisanship”.
Several of my one-time favorite commenters here (hi Walter and Julian) have become lockstep right-wingers on more and more things of late. Or perhaps just more pessimistic and extreme.

Paul MacDonnell
Paul MacDonnell
1 month ago

N. S. Lyons is right. A very insightful analysis.

Jon Hawksley
Jon Hawksley
1 month ago

“No court has the power to define America’s true, unwritten constitution.” The problem is that there is no single “true, unwritten constitution”. The pride of authorship and emotional differences between the political tribes are driving them further apart with no attempt to find convergence on any middle ground.

Mike Bell
Mike Bell
1 month ago

The American Constitution contains the seeds of its own destruction.
In an attempt to ensure freedom from the tyranny of one person having too much power, they divided power between President, Senate and House of Representatives (and judiciary).
The result, in recent years, has been continual stalemate which has handed the president similar powers to the ones the Constitution tried to protect itself from.
The UK system is more resilient. A politically neutral head of state outside politics and a government headed by the leader of the largest party.

Albireo Double
Albireo Double
1 month ago

I think it’s a good article. Relevant to the whole of the West but particularly to the UK as well as the US.

In the UK we are about to throw the Conservative Party into the dustbin of history, possibly forever, in an attempt to replace it with something that is like the Conservative Party originally used to be. I think that may happen, but if so, I think it will take a full two parliamentary terms.

No problem really, since the Labour government that will take the reins in the meantime is an almost exact replica of the Conservative government that we are about to bin, and will probably provide a similarly useless administration. The interesting time will come when its supporters also realise that it is, in fact, just like the outgoing regime.

If this does not happen, and we are left with two identical “left/liberal progressive” parties insisting that they represent a democratic choice, then I think the UK may have some other form of revolution, either bloodless or bloody.

We Brits are phlegmatic and pragmatic, but only to a certain point and it is a mistake to regard our apparent placidity and politeness as acquiescence. We are in fact very well practiced at overthrowing both monarchs and parliaments and I suspect that we can and will do so again, should it become necessary.

Brian Doyle
Brian Doyle
1 month ago
Reply to  Albireo Double

‘ We Brits ” please define who WE are and What a Brit actually is
As for Revolution that is entirely a matter for England to ponder upon
Civil War 2 is becoming a possibility for England now to resolve the massive problems and loss of Empire
Great Britain is merely a hallucination
And figment of the imagination
When one awakes then reality must be confronted and dealt with
Going back to sleep is not a viable option

William Reynolds
William Reynolds
1 month ago
Reply to  Brian Doyle

Great Britain is the name of an island – the largest of the archipelago.

Brian Doyle
Brian Doyle
1 month ago

And how does Island in singular form cater for The Island of Ireland and now contains The Rebulic before the latters Independence

Julian Farrows
Julian Farrows
1 month ago
Reply to  Brian Doyle

Independence? It seems that the Irish and the Scots have no desire to be free. And why on earth would they want to be? Much easier to wallow in bitter resentment while demanding handouts from England and the EU.

Martin M
Martin M
1 month ago
Reply to  Julian Farrows

Absolutely correct. Scotland might well leave the United Kingdom, but if it does, England will stop giving it money. If it is able to join the EU, the EU might well give it money, but it will need to show that its economy is sound before it is admitted (and it isn’t).

Pat Thynne
Pat Thynne
1 month ago

I am British so pretty ignorant about the US constitution but as a lawyer and profound believer in the ‘rule of law’, always slightly envious of a written constitution in contrast to the UK’s vague and fuzzy muddle which unprincipled politicians (Boris, Liz Truss) seek to undermine. However, if the – or any – constitution is the written expression of the values of the people then it strikes me that is pretty nigh impossible to identify or agree on those, especially today – and probably was when the US constitution was first drafted. So what ends up as apparently being “the will of the people” is always going to be the will of the most powerful – either by direct vote or by dint of who gets to write the thing. So possibly there are some advantages to an unwritten and vague one as at least there remains the potential to seek to uphold the good principles as opposed to re-writing some crap ones. Thanks for the article/paper – it has given me something to reflect on. Always good to be made to think – I only wish we could force some of our politicians to do it.

Lancashire Lad
Lancashire Lad
1 month ago
Reply to  Pat Thynne

Excuse me, but the “vague and fuzzy muzzle” you refer to was undermined by a parliament which refused to enact the will of the people as expressed in the 2016 referendum. Boris Johnson then rightly called the bluff of the Supreme Court decision to disallow the prorogation of parliament resulting in a General Election. The huge majority he secured (if subsequently squandered) demonstrated beyond all doubt the resilience not only of the system but of the peoples of the UK, when tested.
A triumph for democracy in the UK, notwithstanding what followed. As a lawyer and a profound believer in the ‘rule of law’, something you’d do well to ponder upon, and proceed more wisely in your profession.

Brian Doyle
Brian Doyle
1 month ago
Reply to  Lancashire Lad

And such Triumph for democracy in the UK shall prove to actually become the inevitable break up of The UK by the way of ‘ The Settled Will of the Scottish people and The conditions for a referendum in NI as contained in the Internationally recognised Good Friday agreement
Every single Scottish local authority area voted for to remain and NI albeit with a narrow margin
By conclusion then true democracy shall prevail in Scotland and NI
Not the so called Democracy of Westminster

Lancashire Lad
Lancashire Lad
1 month ago
Reply to  Brian Doyle

So be it.

Brian Doyle
Brian Doyle
1 month ago
Reply to  Lancashire Lad

And I courteously rephrase
And Shall it so be

Lancashire Lad
Lancashire Lad
1 month ago
Reply to  Brian Doyle

It shall be so.

Your turn…

Julian Farrows
Julian Farrows
1 month ago
Reply to  Lancashire Lad

So shall it be

Rasmus Fogh
Rasmus Fogh
1 month ago
Reply to  Lancashire Lad

Who else have found ways to neutralise and bypass parliament when they refused to do what he claimed was ‘the will of the people’? Mussolini springs to mind.

Christopher Posner
Christopher Posner
1 month ago

The unwritten constitution of the United States once sanctioned Jim Crow and white supremacy, and the written constitution was for long a dead letter in these matters, but the latter still provided a standard by which the unwritten constitution could be judged, and to which there were always movements to bring it into conformity.

UnHerd Reader
UnHerd Reader
1 month ago

Hasn’t anybody noticed the date? Very funny, been laughing all morning Myles

Brian Doyle
Brian Doyle
1 month ago

A written constitution is merely a set of guidelines and should never be set in stone

And no matter what ” The Devil is never in the Detail ”
Such Devil resides in how Humans interpret the detail

Therefore you invariably end up with having a puzzle contained in the Enigma

It’s all rather akin to attempt to Herd cats
If you do so with 10 cats
Then they shall scatter in 1000 different
Directions

R.I. Loquitur
R.I. Loquitur
1 month ago

Biden has proven that SCOTUS is irrelevant by simply ignoring it, his response to its student debt forgiveness ruling being just one example. If POTUS can ignore SCOTUS with no repercussions from Congress then the Constitution is, indeed, merely a piece of paper.

Christopher Theisen
Christopher Theisen
1 month ago

We all agree that it’s a bad idea to “cry ‘fire’ in a crowded theatre”, don’t we? It’s ironic that such a self evident and reasonable expression has such illiberal roots.

The phrase was coined within a US Supreme Court decision pertaining to free speech during World War I. The majority opinion used this phrase when ruling against a Socialist protest against the draft. Protesters stood silently with sign boards. Commerce was not impeded. Streets were not blocked. It was peaceful protest but the government still won the right to curtail their speech by throwing the protesters into prison. Later in 1944, when Japanese-American soldiers were already fighting with distinction in Italy, the Court upheld the government’s right to intern US citizens of Japanese ancestry without trial. Jumping back to the Civil War, the Court did not attempt to restrain President Lincoln’s abrogation of Civil Rights in the border states like Maryland which remained in the Union despite pro-Confederate sympathies.

My point is that the US Supreme Court has never been a bulwark against those who seek to undermine the US Bill of Rights. Apologies are eventually made later, but when there’s a crisis today, the institutions of government always bend towards authoritarianism in the name of public safety. So it is now, so it has ever been. This “new” decay the author laments is not so new. I’m not suggesting complacency about this. But I think it’s worth pointing out that a golden age of freedom is more myth than reality.

Obadiah B Long
Obadiah B Long
1 month ago

War has its own explicit set of exceptional rules. There is no war, despite the hysteria of so referring to COVID and various social phenomena.

Tony Price
Tony Price
1 month ago

Freedom of speech is like capitalism or socialism – great in theory but a monster if untrammelled.

Tony Price
Tony Price
1 month ago
Reply to  Tony Price

Wow all those downvotes! Would one of them care to explain how any of those three is a good idea if not managed or constrained in some way?

Alex Lekas
Alex Lekas
1 month ago

A sobering read that has implications beyond the US. As to the states, if the First Amendment is deemed a dead letter, that leaves the Second, though I doubt anyone really wants to go there.
Violence is not the preferred route, but two thoughts on that: 1) I don’t want to hear too much whining after years of letting BLM and Antifa run wild and 2) when people are pushed into a corner and believe they have nothing left to lose, that’s not good. And anyone who thinks soldiers and cops will en masse start shooting citizens is going to be surprised.

Alex Lekas
Alex Lekas
1 month ago

Should the First Amendment be rendered irrelevant, that leaves the Second, though I doubt many want to go there. Should this be the case, I don’t want to hear any whining about violence, not after watching BLM and Antifa run wild, and not after years of crime has gone unprosecuted. When people are pushed into a corner and think they have nothing left to lose, it’s not pretty.

Alex Lekas
Alex Lekas
1 month ago

why are comments disappearing?

Alex Lekas
Alex Lekas
1 month ago

Push enough people into a corner and the outcome is not good. Have those people think they have nothing left to lose, and the outcome is worse.

Michael Coleman
Michael Coleman
1 month ago

Grudgingly, I have to agree with Lyons.
The constitution DID provide an intended benefit at one time. It enforced the Framers’ ideal of limited government. However, the rise of the welfare and administrative state, along with the Warren Court’s unconstitutional shredding of the value of the Constitution’s foundational value and meaning, has left the US as just another Banana Republic.

Daniel Lee
Daniel Lee
1 month ago

Much of this is exactly true. I’d just cling to the notion that the founders understood this tendency of “the hearts and minds of men” to wobble over time as exactly the reason the fundamental principles must be written and codified – to serve as a refuge to return to in those inevitable times in which people lose track in their hearts of what a truly free society consists of.

AJ Mac
AJ Mac
1 month ago

I agree that there is a spirit in the laws which precedes and should animate the letter or mere application of so much ink. But I find this article to be suffused with hyperbole and nostalgia.
Was the America of 1789 pure of soul, with its slave-centered economy, where only white-male-Christian landowners typically had a vote?
N.S. Lyons changes the import and intent of Biden’s statement and intent in a major, disingenuous way by putting the word final in front of “battle for the soul of America”. This kind of Armageddon talk is an all too common error in the present-day America.
However skillfully crafted, however adaptable and enduring, the Constitution of the United States is not scripture, nor a flawless oracle. It indeed relies upon a free, moral, and liberty-loving people to give it life. But it is not a museum piece or sacred book. I observe and contend that institutional Religion is not central to our current or future society, much less the enshrinement of one particular faith to the exclusion of Jews, Buddhists, Hindus, Agnostics, and You-know-whos.
The Constitution can be amended; it’s happened 27 times. There can be a genuine American Revival, but not by going backward more than inward to the living soul and forward toward a future that is not fully knowable or pre-ordained–certainly not by anything a human being has ever written down. (“Future” is not meant in the sense of “human perfectibility” nor utopian notions of Progress). And not by hating so many of our neighbors, in every direction, with way too much ease and self-assuredness.

Chuck Burns
Chuck Burns
1 month ago

A great article that describes the decline of the free America left to us by the founding fathers. The corruption has come gradually in “a sweeping long revolution which has dismantled and subordinated our original Constitution”. This has happened because We Americans have let it happen. The Cultural Marxists now have control of the education system, the Leftists have infiltrated the government bureaucracy. They have control of every government Department and Agency. We can’t even get a fair and honest election. There are two factions in America today, the Americans and those who are destroying America. The Declaration of Independence shows us what the founding fathers did in a time of tyranny. “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another”. America has devolved into two societies which are incompatible with each other. One society believes in Live and let live and the other believes that the end justifies the means. It is past time decide to be free and preserve the America left to to us by the founding fathers or let the insanity prevail and celebrate “transgender day”.

AJ Mac
AJ Mac
1 month ago
Reply to  Chuck Burns

Nihilism, Machiavellian tactics, and unwillingness to let others live as they please on their own time is in no way confined to one side of some starkly drawn American divide.
The Founding Fathers were impressive but imperfect men, and most of them were hypocritical in one key way The free society left by the Founding Fathers required a change to the body text of the Constitution (the three-fifths clause) and a special Amendment before the most basic liberty–protection from personal and intergenerational enslavement–was haltingly guaranteed to all Americans.
Do you belong to a version of True America which wants to uphold live-and-let-live liberty and reject Machiavelli’s leadership motto (“the ends justify the means”) by fighting another bloody civil war?

Obadiah B Long
Obadiah B Long
1 month ago
Reply to  Chuck Burns

Here is my theory. Can’t wait for the fusillade!
It was all Hitler’s fault. His irrationality forced us into war against a natural ally of the USA, and into alliance with what should have been our dire enemy. Because Stalin was our ally and Hitler such a hideous, incoherent fool of an enemy, we gave sanctuary to Cultural Marxists, in droves. The Frankfurt School at Columbia and the French Existentialists became the foundation of our educational system.
This scrambled our principles entirely, and we have never recovered. Our last chance to set it right was in the 1950s, and we failed.

Damon Hager
Damon Hager
1 month ago
Reply to  Chuck Burns

“The Declaration of Independence shows us what the founding fathers did in a time of tyranny.”

If you think we Brits were tyrannical, be grateful you weren’t colonised by the contemporary French, Spanish, Prussians or Russians.
God save King George.

Ali W
Ali W
1 month ago

Biden openly said he was disregarding the constitution when he extended to eviction moratorium after his election.

Andrew Vavuris
Andrew Vavuris
1 month ago

MAGA is, fundamentally, the movement that seeks to restore the “sacredness” of the Constitution. It may be difficult to define but it is a reaction to the growth and imposition of the administrative state and its power.

Jerry Carroll
Jerry Carroll
1 month ago

You can’t read too much into the questions the Justices ask. A lot of them are intended to see to what lengths the litigants want to go in their arguments.

Mark epperson
Mark epperson
1 month ago

Innovative justice! That will work out well, and she will vote the way her handlers tell her. There is a fine line with 1st Amendment rights and the Feds have never had a problem restricting those rights in our history. The Feds may be able to be held accountable, but the Googles, Facebooks, etc will just skate by as they are buying the politicians and bureaucrats who are bent or will be. It is a tragic day for America and the absolute worst example of unfettered captialism.

laurence scaduto
laurence scaduto
1 month ago

Growing up, my understanding of our Constitution was as a changeable document. The Amendment system might be out of order but there are many other ways. We have a minimum wage and progressive taxation despite the written Constitution, not because of it. Where once it would have been inconceivable to leave your horse and buggy on the street overnight we now have private cars stored perminently on public property, on a solid surface paid for and maintained by the municipality. ‘Go figure.
Blaming the Constitution for the mess (culture wars, climate wars, gender wars…) we got ourselves into is a distraction. It seems obvious to me that the digital “Brave New World” that we love so recklessly is the real culprit. It’s left us dull-witted and compliant; whiney and angry.

AJ Mac
AJ Mac
1 month ago

I agree. I would add selfish, simplistic, and politically-tribalized. However, I do genuinely wonder what you or I would and would not like about the people we might have encountered–men & women; white, black, and red–in late-18th or early-19th century America.

tom Ryder
tom Ryder
1 month ago

Land of the Free and Home of the Brave became land of the lockdown and home of solitary confinement. The only Scientifically accepted way to salvation is a juicy load of Dr Fauci’s patented mRNA goo up inside you. Get boosted!

R.I. Loquitur
R.I. Loquitur
1 month ago

It’s hard to fathom that the Founders actually debated whether it was necessary to enumerate the rights of the citizenry in the Bill of Rights, because those rights are innate.

Richard Pearse
Richard Pearse
1 month ago
Reply to  R.I. Loquitur

Good point – the so-called “anti-federalists” argued that, by enumerating certain “rights”, it would become an exclusive list, rather than all natural rights.

Malcolm Webb
Malcolm Webb
1 month ago

Thank you for a well argued and thought provoking piece. I saw the US Constitution as primarily a defence against big government and executive overreach. It seems I was probably mistaken and need think again about how a people can best be protected against both these evils.

R.I. Loquitur
R.I. Loquitur
1 month ago
Reply to  Malcolm Webb

It only guards against big government and executive overreach if it is enforced. Sadly, it has become simply words on a page.

UnHerd Reader
UnHerd Reader
1 month ago

April fools joke surely. Laughed all day, and I am serious

Ex Nihilo
Ex Nihilo
1 month ago

“The Constitution” for American conservatives and traditionalists represents the last redoubt in a long running cultural war they have been steadily losing. The left cleverly seized control of the engines that actually generate mass culture: academia, entertainment, and media. The left has also profoundly altered the countervailing influence of organized faith in two ways: denigrating the very notion of traditional religion (via the influence of the above institutions) and simultaneously coopting churches and synagogues with progressive ideology. Those cultural changes have wrought the discrepancy between what the Constitution articulates and what large swaths of the population think, feel, and believe. Conservatives are devoid of a comparable apparatus of influence and have wrongly believed that prevailing in individual issues in the political arena is tantamount to definitive victory. Unfortunately, the Left is infinitely more artful and devious and has entropy on their side; societies tend to degrade with time.

The single most effective tool of the Right was surrendered when they ceased living the in manner they professed: the hypocrisy of “Right to Life” juxtaposed against the insistence upon the right to own automatic weapons or against advocacy for the death penalty; the nominal insistence on merit (instead of affirmative action) for material advancement while preserving legacy admissions to competitive schools and nepotism in hiring; the incongruence of touting morality as the highest ideal while tolerating extremes of perversion such as rampant pedophilia in their churches, athletic, and youth organizations; the very notion of the “Prosperity Gospel”, seen by many as a lurid insult to the anti-materialism of Christ. Add to those the mundane day-to-day failure of too many conservatives to lead by example instead of words in matters like honesty, humility, and sincerity and it becomes easy to see how they lost the battle for hearts and minds.

AJ Mac
AJ Mac
1 month ago
Reply to  Ex Nihilo

Good post for the most part. A provocative series of claims, all over the map for persuasiveness or lack thereof. I don’t think the Left as a whole is as organized enough to be as deliberate and clever as you assert, let alone “infinitely more artful and devious”.
I think we may be at a cultural high-water mark for hypocrisy, but when did either the Right or the Left practice what they professed? To put it in traditional, nakedly moral terms: All have sinned and fallen short of the glory of God in things like “honesty, humility, and sincerity”.
Good point concerning the rank-unto-heaven, shameful cover-up of pedophilia in churches (and teaching, sports, cub scouts…)–not only a conservative “project” but largely so. And the abomination of the Prosperity Gospel.
I don’t think the battle for hearts and minds has been conclusively won by the Left or ever can be–by either side. Nor should it be. The forces of tradition and innovation; duty and individual choice; limit and liberty (etc.) exist in eternal, dynamic tension. There should be mutual respect across our rather artificial Left/Right divides, and can be except at the outermost fringes of the Left and Right.
I appreciate your idiosyncratic contribution to UnHerd and like reading your comments.

Ex Nihilo
Ex Nihilo
1 month ago
Reply to  AJ Mac

Appreciate your response. If I may expand upon what I tried to keep brief: I would readily stipulate the equivalent hypocrisy all around. My comments about the cleverness, artfulness, and deviousness of the left was meant more to emphasize that liberal/progressive viewpoint tends to naturally aggregate people of particular occupational inclinations. In the Arts (music, literature, fashion, etc.) the Left is clearly more represented than the Right. The same is true for Education and Law as professions. These careers not only provide intrinsic venues for transmission of viewpoints but attract people with aptitude for various kinds of expression and then train them to greater effectiveness. These are people adept at creating, rendering, and propagating images of their choosing. I don’t believe the Left has so much conspired to take over media and the arts as they just already dominated it for the above reason and, as the culture wars progressed, used their natural advantage aggressively and effectively. Of course, the writings of the vanguard Marxists, Communists, and modern Progressives say otherwise, advising their adherents to deliberately acquire control of these assets of persuasion; but in practice I think they have done so more from luck than conspiracy. The notion of the advantage of art in politics is not new. Andrew Fletcher (1653-1716) noted “let me make the songs of a nation and I care not who makes its laws.”

Conservatives tend to be better represented in professions such as business, engineering, and the vocations. They are much more adept with spreadsheets, blueprints, and machinery than rhetoric, artistic performance, or the subtleties of influence. They are always at a disadvantage when stating their beliefs because they tend to be less skilled at personal imagery and artful disingenuousness or dissimulation. Their attempts often come off as clumsy. Consequently, their failings and hypocrisies usually seem more repulsive. As an example: the media assets of the Left rehabilitated Bill Clinton after Monica Lewinsky; it ended the career of the televangelist, Jerry Falwell (who I never cared for), following a similar sex scandal. My point being, if you (the Christian Right) are playing politically against an advantaged opponent (the media-supported Left) it behooves you to eschew hypocrisy because it can be used against you in ways theirs cannot be used against them. The assets are asymmetric, so the strategy need be as well. Progressives can get by with not living up to their beliefs, conservatives not so much.

Personally, I agree that these conflicts always exist across all times and that bilateral mutual respect is a worthy objective. However, such mutual respect is almost always a characteristic of people who are centrist not extremist. The absence of tolerance for the other side defines the extremes. Also, while the conflicts are ever with us, they wax and wane in significance historically and occasionally explode with horrific consequence. At times one side or the other clearly dominates. My original point is that the Left currently has the upper hand through its hegemony in media, art, education, and the legal profession and that the obsession of the Right in the US with Constitutional fidelity is a rearguard effort that betrays their limited ability to manage and control the images and ideas placed before the masses.

AJ Mac
AJ Mac
1 month ago
Reply to  Ex Nihilo

I agree with much of that, as broad strokes. Art, music, literature, and entertainment have always attracted more eccentric and radical personalities–more libertines and lunatics–than law or business.
Falwell was a religious figurehead–that made him more vulnerable. He is also snarlingly arrogant and an obvious drunk. But I think Jim and Tammy Faye Baker and Jimmy Swaggart got away with plenty for a long time before their comeuppance. I think Joel Osteen is an active charlatan, Christian in name only, who wouldn’t receive local refugees during a flood. And I wonder whether Clinton the lecher would have weathered the storm if it happened today.
The left tends to eat its own. Al Franken got shanked by Kirsten Gillibrand and other fellow Democrats for pretty mild, juvenile misconduct. Anthony Weiner got run out for worse. Even Harvey Weinstein couldn’t run rogue forever.
So far, Trump’s horndog ways haven’t hurt him much, except financially. The media domination is far from complete. Exhibit A: Fox News–the most popular cable news network. Exhibit B: Right-wing talk radio, by far the dominant AM-dial “flavor” in America. And if the New York Times made a big deal about the Earth being (quasi) spherical, quite a few MAGA populists would take the Flat Earthers more seriously, in reflexive opposition. A paranoid level of distrust of the MSN is common here; seemingly in Britain too: “Just reverse what they say and you have the truth!”
I accept your framework concerning centrists versus extremists. However, I estimate that only 5-10% at either extreme tend to be unreachable. Right now it seems like the number is 15-plus% on either side. People that formerly would have been moderate or even apolitical are more and more likely to choose a thought-tribe and sign on to just about everything in the given “package deal”. A bad development that can be in some measure corrected with enough effort from “passionate centrists” or “engaged moderates”.
Maybe I’d be a better voice for moderation and mutual respect if I were less of an opinionated hothead! However, through hard knocks, the passage of time, and perhaps the first inklings of wisdom: I no longer believe in most of my opinions or treat everything I think like fact.
*I agree that public figures on the Left are more often given a pass or considered good when they’re not. But many on the Right seem plenty good at lying and getting away with it for a long time, if not forever. One additional broad distinction is that those on the Right are more apt to perform seriousness & decency, those on the Left “coolness” and openmindedness.

UnHerd Reader
UnHerd Reader
1 month ago

I read the history of the case so far on Wikipedia. Seems the Supreme Court will decide that the Government cannot tell Facebook what to do (Good) but it will still be able to talk to them about stuff being posted. (Persuasion)
Not complicated. Seems fine to me.
Why all the wailing and gnashing of teeth?
Government = Always evil?
Facebook = Always good?
Let’s have a bit of nuance please!

Allan Plaskett
Allan Plaskett
1 month ago

A question for Mr Lyon who loves the 18th century American so much: who wrote, ‘I fear for my people when I reflect that God is just.’
What did he mean, and what was his part in the authorship of the DOI and the Constitution?

Steve Jolly
Steve Jolly
1 month ago

I can understand Lyons frustration at the current situation but America does have a few threads that can be traced from the founding fathers all the way to the present. His pessimism leads him to overlook some salient facts that call his bleak conclusion into question. There is evidence of an American spirit that runs deeper than the political machinations on the surface. There is plenty of evidence that America’s true spirit, the one that led the founding fathers to pursue a conflict few believed they could win in order to secure their independence and freedom from tyranny is still present.

It’s present in the spirit of protest that animates Americans. We saw it in the summer of 2020, when Americans took to the street to protest police misbehavior en masse despite the COVID restrictions. We saw it on January 6th, when people tried to storm Congress, albeit without any clear goal or a plan to accomplish it. I saw people ignoring the COVID restrictions and getting into shouting matches in public over mask wearing. We see it in the fact that America has a much higher unvaccinated rate than most nations, even many that are very poor, and it spans the political spectrum, from an environmentalism socially conscious liberal like RFK to the rowdy conservatives who booed Donald Trump at his own rally when he took credit for the vaccine efforts while he was President and urged supporters to get vaccinated. From the minutemen to abolitionists to the New Deal to Vietnam protests and to the present populist movement, there is a stream of deep contrarianism in America. Americans, somewhat like the French, are a rebellious lot, liable to make a country nigh impossible to govern if they find the present condition unacceptable.

It can be seen in less obvious ways. America’s sky high rate of crime and incarceration shows how prevalent the nation’s tendency to ignore the law and the government simply to get ahead or do what they want. America has made heroes of notorious outlaws and the vigilantes who hounded them across the west using means that would be considered barbaric today. Such men eventually fell out of fashion, primarily due to their problematic views on race and civil rights that another generation of America marched and protested in. America then invented new ones in the form of superheroes like Batman and the Avengers who operate outside the law. If there is no American spirit, why are the most popular movies about men who fight for a set of principles very much above the law.

These threads run deeper than present political realities, which I concede paint a bleak picture. If, as the author says, there is a character, a constitution, to America that is unwritten and unsaid, it must be something foundational, something solid, something that isn’t easily changed by a simple act of one or many tyrants, or they already would have. The author’s mistake is to look at the Constitution. The Constitution was and is a document that represented a series of compromised between states that allowed the nation to exist as a whole, but it was never an integral part of the American spirit. It was actually the second attempt at forming a unified government after the revolution. The first one, the Articles of Confederation, failed. The Constitution only provided a governing structure, and it’s proved adaptable enough to last through two centuries, but it isn’t sacred, and it has been changed many times. If it survives another two centuries, I have little doubt it will change even more. America could survive even the death of the present constitution and the adoption of a new one IF the true constitution the author mentioned endures, and as I have said, there are signs that it does.
The American spirit, it’s soul, if it can be said to exist at all, was formed before the Constitution was ever conceived, forged in the fires of war and rebellion that happened before there was any government. The rebels of the American revolution were not highly educated men even by the standards of the day. Many were well read, but few would have been accepted into the intellectual circles of Europe. They started a revolution with very little notion of how to govern a country without much of a plan for what happened after. They first defined America and successive generations have built upon it. It isn’t a deep culture, common religion, or ethnicity. America never has been all that unified in those respects. Today we have white, black, and hispanic, but in colonial times there were German, Dutch, English, Scottish, Catholic, Puritan, Episcopal, Presbyterian, and so on. There have always been lines of demarcation, but what they mostly have in common through the generations is this. Americans are contrarian. Americans question their leaders and their government. They don’t blindly submit to authority. They fight it, personally or collectively. If they don’t like the law, they protest it, they fight it, they break it. They form political factions and fight each other. They make the task of government control nigh impossible, using whatever means are available. The great movements of America, abolitionism, civil rights, women’s suffrage, all came from popular movements that eventually forced the government or some aspects of it to change.
The present is no different. The people will challenge the government. They’ll challenge from the right. They’ll challenge from the left. They’ll fight each other even as they fight the establishment. The more they feel oppressed and put upon, the harder they’ll fight, even to the point of violence and rebellion. That’s the real sword of Damocles that the government and the establishment ought to fear, and the true nature of the American beast. It’s messy, inefficient, and often violent. It offends many current sensibilities, especially among the affluent and the internationally oriented, but prospective tyrants or oligarchs seeking to use the people for their own ends would be foolish to dismiss it. One can collar and leash a tiger but that doesn’t make it tame, nor does holding that leash give one power over the beast. If the elites push too hard, they’ll likely find that out the hard way.

AJ Mac
AJ Mac
1 month ago
Reply to  Steve Jolly

Putting aside the majority of my contrarianism: I agree with most of your eloquent Spirit of America speech, Steve.
I’d only quibble that several of the Founders–notably Franklin, Adams, Jefferson, and Madison, and–were well-educated by contemporary standards. That’s putting aside the question of whether they’d be admitted into intellectual circles overseas, as I believe Franklin and Jefferson were. Many superbly well-read, conversation-polished British and European commoners would have been excluded too. It took the brilliant Samuel Johnson a long time before he was more-or-less accepted into refined circles, and could accept being part of them. [end quibble]

Steve Jolly
Steve Jolly
1 month ago
Reply to  AJ Mac

They were well educated by colonial standards in colonial institutions, which most Europeans would have scoffed at. Someone educated in the colonies would have been regarded then about the same way we would look on someone educated in some third world country today. I don’t personally care much for that attitude then or now, but it is what it is. Intellectual elitism, like racism, has a long history and probably will always be with us in some form. There’s a reason so many foreign students have been flocking to American universities through the last several decades. Many have to compete for the opportunity.
I was thinking of Franklin and Jefferson being the primary exceptions as well, the former being known even before the revolution for his scientific work and the latter becoming known for his work as an ambassador and his writings on the revolution. Jefferson became something of a celebrity after the revolution was successful. He was in Paris as an ambassador for many years and shared ideas with many future French Revolutionaries. Madison became known as Jefferson’s protege and political successor, and for being the primary writer of the Constitution itself. I was also considering the many less prominent members of the Continental Congress and signers of the Constitution.
As you properly point out, Europe was still dominated by feudal notions of worth and nobility at the time, and commoners were often excluded regardless of merit. Your quibble is warranted. That particular phrase didn’t come across quite how I intended. I was thinking too much of George Washington when I made it. I meant about what you stated but you stated it better than I did.

AJ Mac
AJ Mac
1 month ago
Reply to  Steve Jolly

I’m in full agreement with that. Good context on the Founders Abroad, which I hadn’t considered much in the case of Jefferson. And I absolutely see your original wording as valid for most of the signers of the Declaration.
Among the most brilliant few, there were dedicated scholars such as Madison and Adams, but they were largely autodidacts, and Colonial-era colleges like Harvard (1636) and Yale (1701) were not world-class schools yet, let alone Oxford or University of Paris level institutions. Many British and Europeans would for sure have scorned anyone or anything that emerged from the Colonies. (Also, as the common-born Tory patriot Samuel Johnson said, with some rough justice: “How is it that we hear the loudest yelps for liberty among the drivers of Negroes?”).
There are traces of that attitude today, even on this website, though anyone who tunes in and pays attention for a few hours can see that we 330 million Americans–while quite a loud mess in the aggregate–are not only one thing: good or bad, smart or dumb.
When I return to the area I was born (western Canada) to visit, I come across a fair bit of anti-States snobbery, often from the stupidest possible Canadians: “Yer darn right Americans are ignorant eh!”. I wanna reply “Often true, but rarely as ignorant as you are”, but I don’t–not directly.
What’s Kentucky like nowadays in your general assessment? (Fine if you don’t have the time or inclination to answer; I know we’re on a near-deserted comment board now).
Cheers.

Steve Jolly
Steve Jolly
1 month ago
Reply to  AJ Mac

Johnson had a point about slavery but it’s not as if others didn’t make that point. The northern states never had slavery and would have abolished it from the start if they could have. Jefferson and Washington, slaveholders both, would probably have supported that or at least not greatly protested. Their writings suggest their personal misgivings, but they were also pragmatists. Slavery was already generations old at that point and the slaveholding aristocracy was entrenched. The southern states would never have signed the Constitution without the allowances for thier ‘peculiar institution’. The founding fathers were pragmatists. They wanted a unified country that wouldn’t get drawn into European politics and were willing to compromise to get it. That’s something our present generation has no concept of, the notion that you have to compromise sometimes with people you don’t agree with and tolerate things you find loathsome to avoid conflict. These days everyone thinks their side is right and just wants to shout down the other, and that, more than anything else, drives the conflict. Liberals try to indoctrinate children into their worldview without regard for the parents. Conservatives are determined to find ways to criminalize going to another state to get an abortion. At some point, both sides have to stop proselytizing and convert the other and make some common sense allowances for people to have different cultural, religious, and social values in their own communities.
Kentucky, like most places in middle America, is not great, but not as bad as California, New York, or Illinois. The great laboratories of democracy that are the fifty states are sorting like with like and we’re seeing distinctive winners and losers. Kentucky is in the former category, barely. Woke nonsense doesn’t fly outside of college campuses. The Democrat governor has to step carefully. He got re-elected last year but the Republicans have a supermajority in the legislature so he can’t do much himself. Kentucky, at least the western two thirds, has so far been doing well enough economically. The governor likes to take credit but I don’t think most people take him that seriously. The abortion ban got shot down even here. It’s a fraught but necessary process that should have happened in states gradually over the decades since Roe vs. Wade, but that push and pull is being crammed into a few short years. I fear for the country if Trump wins. The establishment types have become so afraid of Trump upending the entire global system that they’ve built him up to their voters to be a villain of historical proportions to scare people, like a modern day Napoleon, Caesar, or the German who shall not be named lest we offend the censors. It’s not working on most people, but how many people are radicalized enough by the apocalyptic rhetoric to turn violent? I honestly don’t know. Jan 6th was likely the worst you’re likely to see from Trump and populism. Anything beyond that is either going to be expressed in the courts or through finding ways to usurp federal authorities at the local level, sanctuary cities, bussing migrants to NYC, etc. The other side can do much worse, as we’ve seen. The Floyd riots were much worse, and I could see a repeat of that. So I really hope Trump loses. First because he’s a fake populist and doesn’t have remotely enough political skill, knowledge, or understanding to form a coherent anti-globalist strategy, let alone implement it or articulate it in a way that generates broad public support. Second, I’d rather not see the level of violence continue to escalate. Biden, or whoever is really running things, probably some general at the Pentagon or maybe his wife, is doing a competent job of not mucking things up too badly. He’s not Obama or Bush at least. The divided congress helps. Even the build back better wasn’t a terrible package but he gave too much to the climate/environmentalist lobbyists and paid the price when Manchin abandoned him. So that’s a bit of the situation in America. Here’s hoping there’s still an America to give updates on this time next year.

AJ Mac
AJ Mac
1 month ago
Reply to  Steve Jolly

Cogent thoughts and views that I largely share.

“That’s something our present generation has no concept of, the notion that you have to compromise sometimes with people you don’t agree with and tolerate things you find loathsome to avoid conflict. These days everyone thinks their side is right and just wants to shout down the other, and that, more than anything else, drives the conflict. Liberals try to indoctrinate children into their worldview without regard for the parents. Conservatives are determined to find ways to criminalize going to another state to get an abortion. At some point, both sides have to stop proselytizing and convert the other and make some common sense allowances for people to have different cultural, religious, and social values in their own communities

Amen to ALL of that!. Superbly well-said.
I leave any quibble(s) (Obama; Jan 6th vs. racial riots–both bad, a close call) to the side this time.
See you around the boards.

AJ Mac
AJ Mac
1 month ago
Reply to  Steve Jolly

My reply (in full agreement this time) has been held for inspection, I think because of one word in a quote from Samuel Johnson.
*posted

Damon Hager
Damon Hager
1 month ago

Highly acute article.
Your Constitution (I’m British) was written by, and for, a newly born nation of Anglo-Saxon Calvinists. You ceased to be that a long time ago, and you’re now on a very different journey indeed.
I wish you well, and will certainly not gloat or patronize, as we in the UK have plenty of problems of our own.

Charles Hedges
Charles Hedges
1 month ago

The USA was founded by people who took risks. Of the first ten thousand settlers, eight thousand died. The settlers understood they took responsibility to fight for and feed themselves; they had the pioneer spirit. The pioneer spirit means people risk death for freedom. Once the pioneer spirit is lost so is the willingness to die for freedom. Prisoners who become institutionalised, once free carry out crimes so they can return to the security of prison.
In WW2 few prisoners made any attempt to escape. The state, The collective provides security. As Ibn Khaldun said ” Men protected by wals and garrisons lose the manliness and uprightness “.
Not only does the USA lack people with the pioneer spirit, those who dominate public opinion mock the pioneer spirit because it shows their inferiority. How many of those who dominate public opinion would be of any use in settler communities in the late 16th and early 17th centuries or on the frontiers?
The Consitution is meant to keep the freedom enjoyed by the pioneers.

AJ Mac
AJ Mac
1 month ago
Reply to  Charles Hedges

A fresh and incisive provocation that I’ll have to digest before I respond–or just let breathe until next time.

Judy Johnson
Judy Johnson
1 month ago

I am writing from the UK not America so I don’t have experience of the constitution only an impression. It has often seemed to me to be an idol and I don’t understand why something that apparently cannot be changed has a number of amendments.