March 1, 2024 - 6:00pm

Is America still governed by the Constitution? Back in the 1980s, the Columbia Law Review advocated clarifying the law to protect journalists’ First Amendment, rights even on private property. Just today, though, Blaze reporter Steve Baker was wasarrested by the FBI for his January 6 investigations, on charges including “knowingly entering a restricted building”.

Blaze commentator Auron Macintyre fears that this document’s glory days are over: “Whatever we are governed by now,” he said, “it is not the Constitution”. He may have a point: this isn’t the only recent instance of progressive concerns that the Constitution is an obstacle to American values. According to MSNBC legal analyst Barbara McQuade, the First Amendment is an obstacle to truth. Promoting her new book in conversation with MSNBC anchor Rachel Maddow, McQuade declared that America’s deep-rooted cultural commitment to free speech meant “disinformation” was rampant, while attempts to impose “common-sense solutions” – implicitly, McQuade’s preferred restrictions on speech – were impossible in that context, due to widespread resistance to “censorship”.

Wherever people stand on the desirability of free speech, this illustrates a growing crisis in one of the modern democratic (which is to say, American) world’s most cherished beliefs: that as long as you have a robustly written constitution, the political order will remain stable forever. But back at the end of the eighteenth century, the Savoyard reactionary Joseph de Maistre argued in Studies on Sovereignty (1794) that the real constitution of a people is actually only secondarily written down; the true, living constitution emerges from a people’s dispositions, habits, accumulated cultural patterns and everyday conditions. And these, he argued, are only written down when they become contested in a way that requires clarification. Conversely, it’s possible to impose any paper constitution you like on a people for which it’s ill-suited, and find it ignored in practice. 

It is characteristically American, though, to imagine it works the other way round. This view of the relation between the aggregate culture of a people, and that culture’s achievable political forms, has produced some of America’s more quixotic recent international adventures, such as the attempt to impose democratic constitutional government on the tribal peoples of Afghanistan. 

Now, though, a similar principle is at work in the Land of the Free itself. There, a growing chorus of progressive voices now critiques the American Constitution itself as an impediment to American values. McQuade isn’t the first: just a few days earlier, Politico’s Heidi Przybyla framed perhaps the central premise of post-revolutionary America — that individual rights are divinely given — as not a sacred foundational principle so much as a political manoeuvre by the progressive world’s new bogeyman, so-called “Christian nationalism”. 

Never mind that the “inalienable rights” to which men are, in the Declaration of Independence, entitled, are described there as having been “endowed by their Creator”: “Nature and Nature’s God”. For Przybyla, the fact that it falls to fallible humans to interpret those divine givens means this supposed origin is critically vulnerable to weaponisation by malign (that is, conservative) forces. 

American culture is revolutionary by design, and structurally opposed to the kind of demographic homogeneity that might support a stable unwritten constitution over the long term. It was thus always predisposed to support radical rewritings even over a relatively short national lifespan as America to date. Indeed, if critics such as Christopher Caldwell are correct, such a transformation already took place in 1964, when the Civil Rights Act was passed. 

But even if this is so, the conservative backlash to commentators such as McQuade and Przybyla makes clear that the contest is far from over. So it remains to be seen what kind of arrangements will emerge, in practice, from the unwritten constitution of the American people as it now is, rather than as it was in 1787. 

Mary Harrington is a contributing editor at UnHerd.