Progressivism’s Vanquished Foe—Conservatism The Failure of Constitutionalism

Part 2 of 3

Note: This is an excerpt from Progressivism: A Primer on the Idea Destroying America (2014). 

Conservatism is a reaction to progressivism and its essence is to be against progressivism as opposed to having a positive program.  To fill the void, conservatives have often repaired to the safe harbor of constitutionalism as a substitute for a coherent ideology. There are numerous problems with constitutionalism as a bulwark against progressivism and constitutionalism has been and will continue to be a spectacular failure in staunching the continual growth of progressive government.

First and foremost, there is no way to enforce the Constitution against the government as the government itself claims the right to interpret and enforce the document in any dispute with a private citizen.  For example, in the “Pork Lawsuit,”[1] I represented fifty solid citizens who sought to finally enforce New York State’s 160-year-old ban on the state giving money to private business firms.  The language of the provision was crystal clear: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking. . .”[2]  In spite of this clear language, the state was routinely giving out billions of dollars in outright cash grants to private firms.  Much to my cynic’s surprise, we won 5-0 in the Appellate Division, the State’s second highest court.  Having zero faith in government courts, I threw out the winning brief in that Court and started from scratch, Progressivism: A Prime... James Ostrowski Best Price: $11.00 Buy New $10.95 (as of 01:05 EST - Details) producing a much stronger case for our side.  At oral argument, which you can watch on You Tube,[3] the State’s attorney gave a long, rambling and incoherent speech and was unable to cogently answer questions from the judges.

Nevertheless, in spite of the clear language on our side, not to mention the unambiguous legislative history and all reasonable policy arguments, we lost 5-2 in the Court of Appeals in an opinion by a judge who was as silent as the Sphinx at oral argument.  There were two blistering dissents by Judge Eugene Pigott and by Judge Robert Smith (reputed to be a libertarian!), who all but accused the majority of treason (“judicially repealing” the Constitution).

Now, what do you do when the government judicially erases the Constitution?  You can either grin and bear it, which is what we did, or you can muster a million-man army, go to Albany, depose the Court, replace it with a court with better reading comprehension skills, and stop corporate handouts.  Here’s the problem: you will probably be arrested by the FBI as soon as you announce your intentions.  Second, even if you could secret a million-man army into downtown Albany, the PSA would simply muster a three million man army and defeat you on the battlefield in a day or two, with the ninety percent of the public that is progressive, cheering wildly as you are slaughtered in the streets or rounded up and put into a government cage[4] for fifty years. So, again, the problem, a fatal one, with constitutions is that there is no way to enforce them short of war.  Yet, surely the argument for a constitution in the first place is to resolve disputes over the limits of government power without going to war!  Thus, constitutionalism failed.

The Constitution is not a contract, however, since many view it as such, it will be useful to assume for the sake of argument that it is a contract.  Would you sign a contract with a private firm that gave that firm sole power to interpret and enforce the contract?  Would you sign a contract with a roofer that, in effect, allowed him to charge you $15,000 and not put a roof on your house?  Only a fool would do so, yet, the Constitution is precisely such a sham “contract” as it gives the other party to it sole power to adjudicate any disputes about it.  It is yet another nail in the coffin of conservatism that its chief ideological bulwark, constitutionalism, turns out to be a sophisticated hoax!

As if the above flaws were not enough, constitutionalism has other problems insofar as it purports to be a bulwark against progressivism.  Surely, many constitutionalists believe that the constitution is a statement of various underlying objective truths about the world, human nature, government and politics.  This overlooks the fact that progressives are pragmatists, that is, folks who reject the notion that there is an objective reality outside our minds that we can know and express in words understandable to other people.  To cite a constitution to a progressive is like speaking Mandarin to a Martian or English to a wall.  It’s a pointless exercise since pragmatists reject the notion of objective truth and are solely interested in the practical consequences of ideas and words.  Thus, in the Pork Lawsuit, the five progressive judges in the majority, including two conservative Republicans, no doubt believed that state government must have the tools of economic development to compete with other states and countries that have them.  They were oblivious to whether the Constitution of 1846 was true or not.  It was, in 2011, no longer practical.  The bottom line is that the 90 percent of the public that is progressive, elected progressive governors who appointed progressive judges who gave us a progressive result, the Constitution be damned!

Yet another fatal flaw with the United States Constitution is that, while its Bill of Rights was libertarian in nature and origin, the actual body of the Constitution created the framework for an extremely powerful federal government.  Proof of this fact is Robert “Brutus” Yates’ essay, Antifederalist No. 1, wherein he demonstrates through ineluctable logic how a huge and powerful federal government could and likely would evolve from the extensive powers granted to the three branches of government in that document.  He was right as it turns out:

“It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government. The powers of the general legislature extend to every case that is of the least importance — there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every power given. The legislative power is competent to lay taxes, duties, imposts, and excises; — there is no limitation to this power, unless it be said that the clause which directs the use to which those taxes, and duties shall be applied, may be said to be a limitation: but this is no restriction of the power at all, for by this clause they are to be applied to pay the debts and provide for the common defence and general welfare of the United States; but the legislature have authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defence, and they only are to determine what is for the general welfare; this power therefore is neither more nor less, than a power to lay and collect taxes, imposts, and excises, at their pleasure; not only [is] the power to lay taxes unlimited, as to the amount they may require, but it is perfect and absolute to raise them in any mode they please. No state legislature, or any power in the state governments, have any more to do in carrying this into effect, than the authority of one state has to do with that of another. In the business therefore of laying and collecting taxes, the idea of confederation is totally lost, and that of one entire republic is embraced. It is proper here to remark, that the authority to lay and collect taxes is the most important of any power that can be granted; it connects with it almost all other powers, or at least will in process of time draw all other after it; it is the great means of protection, security, and defence, in a good government, and the great engine of oppression and tyranny in a bad one. This cannot fail of being the case, if we consider the contracted limits which are set by this constitution, to the late [state?] governments, on this article of raising money. No state can emit paper money — lay any duties, or imposts, on imports, or exports, but by consent of the Congress; and then the net produce shall be for the benefit of the United States: the only means therefore left, for any state to support its government and discharge its debts, is by direct taxation; and the United States have also power to lay and collect taxes, in any way they please. Every one who has thought on the subject, must be convinced that but small sums of money can be collected in any country, by direct taxe[s], when the foederal government begins to exercise the right of taxation in all its parts, the legislatures of the several states will find it impossible to raise monies to support their governments. Without money they cannot be supported, and they must dwindle away, and, as before observed, their powers absorbed in that of the general government.” (Emphasis added.)

So, in the battle against progressivism, constitutionalism is worse than useless as it cannot accomplish the goal and will simply distract us and mollify us into drilling an infinite number of dry holes.  The rejection of constitutionalism as a strategy is yet another reason for us to disassociate from the conservative movement.


[1] Bordeleau v. New York State, 18 N.Y.3d 305 (2011).

[2] NY Const. Article VII, § 8 (1).


[4] A term popularized by Lew Rockwell.