Is the Constitution broken?

Two Ivy League professors think so. Of course, I have argued it has been broken since 1789. Southerners said it was broken in the 1850s.

Asking this question is nothing new, but the fact that two leftist law professors have broached the question means something has shifted in the United States.

You see, now that progressives no longer control the federal court system, they see the Constitution as beyond repair, and for the first time, these professors are admitting that they need to play a different game on a different field.

In other words, they are conceding that “originalism” is the correct way to interpret the Constitution.

They cannot win by basing their arguments on “constitutional” positions. Why? Because they can’t find a constitutional justification for just about any of them.

That hasn’t mattered in the past because the federal court system provided cover. But now that a supposed conservative super majority has ruined the Supreme Court, their only hope is to create a new game with new rules.

I’ve said they’ve been doing this for years. I remember making this argument at a Federalist Society luncheon about a decade ago. I don’t think they got it then, but when the Left openly says this is what they should be (and I argue have been) doing, perhaps people should listen.

What’s really remarkable is that most people don’t realize the Constitution has been ignored for a long time. In fact, the Radical Republicans suggested Americans needed to interpret the document not as it was ratified but by how THEY interpreted the it.

Translation: we know our positions do not line up with original intent. Who cares? This is how it SHOULD be interpreted. You will be assimilated.

The Radicals insisted on remaking America in their image. That included how we interpret the Constitution.

I discuss the broken Constitution on episode 693 of The Brion McClanahan Show.

Victor Davis Hanson’s laughable piece at The New Criterion is the gift that keeps on giving, at least if you need a muse.

His conclusion is particularly noteworthy for its ahistorical tone:

“Or, to put it another way in an ironic fashion, the obdurate blue-state North is reminiscent of the mulish Old South, while the red-state new South is beginning to resemble the dynamic old North.”

This is right out of Charles Sumner’s playbook. Make American New England again. I cover this in Radical Republicans, a class you should not only want, it’s one you need.

I wouldn’t call the old North “dynamic”, unless you like black codes, Jim Crow laws, child labor, dirty air, filthy cities, moral self-righteousness, and hypocrisy.

Hanson could not be bothered to explain how Jim Crow laws and black codes were invented in the North prior to the War. Nope. Those things are Southern.

Hanson spends the previous several paragraphs explaining why the Old South and modern Silicon Valley are attached at birth.

I’ll summarize so you don’t have to read it: racism, oligarchy, treason, power.

Hanson suggests that modern progressives want to secede because they fear the current majority in America.

Then for the next several paragraphs he explains how conservatives are not the majority in America.

You read that right. Progressives want nullification and secession because they believe the popular will, i.e. majoritarian democracy, is being thwarted by a powerful minority which Hanson calls the majority.

He spends so little time discussing nullification that you would think he doesn’t really know much about it, though he does know he’s against it. Why? Slavery.

Same for secession, though he throws in some block quotes to show that these lunatic progressives want a peaceful separation of the United States if we can’t just get along. Of course, this is all about slavery, too. He is afraid of being enslaved by blue-haired wokies from his home State.

I guess Hanson prefers Biden’s bellicose rhetoric that Trump supporters should be carpet bombed.

It would fit. I’m sure Hanson would be the first to cheer-lead the resurrection of William T. Sherman. The only good secessionist is a dead secessionist, even if they wave the MAGA flag.

At one point, Hanson blasts the Old South for opposing protective tariffs and federally funded internal improvements. Why? Slavery.

It’s almost as if Hanson isn’t really that conservative. He exemplifies R.L. Dabney’s critique of American conservatives when he wrote that American conservatism is simply the crusade to preserve the discarded opinions of the left.

Hanson would have been a leftist in 1860, meaning the only thing he is trying to “conserve” is the washed up radicalism of Sumner, Thad Stevens, Winter Davis, and John Bingham.

As Davis repeatedly argued in 1863, his opponents–the Peace Democrats or Copperheads–were the “conservatives” while he was insisting on the preservation of the Constitution the way the Republicans decided to interpret it.

That sounds more like the modern progressive left than John C. Calhoun. Or maybe it just sounds more like Victor Davis Hanson.

Either way, neither are conservative.

I continue my discussion of Hanson’s piece on episode 696 of The Brion McClanahan Show.

Yesterday I told you about my latest class at McClanahan Academy, Radical Republicans, and how it was essential that you understand that group of men.

Why? Because so many modern “conservatives” simply regurgitate what these leftists had to say about the War, the South, and American society.

Charles Sumner, for example, wanted to remake the United States in the image of New England. He believed that nothing good came from the South, that South Carolina was an inferior and evil place, and that if Massachusetts could lead the way, America would become the shining city upon a hill.

The Radicals believed that in order for America to survive, the South had to be purged from society. And by purged, they literally meant it.

“Reconstruction” had real meaning. The South had to be remade politically, socially, and economically. It could not just resume its place in the American federation. That federation no longer existed. The new nation required unquestioned obedience to the way the Radicals interpreted the Constitution and formed American society.

This is why James Innes Randolph wrote “Oh, I’m A Good Ol’ Rebel.”

Radicals did not want to accept that level of defiance. They were overruled by the majority of the American public in the years after the War, particularly with the end of military Reconstruction in the 1870s.

But the Radicals found new life in the modern “conservative” movement of the 1970s. Harry Jaffa’s insistence that equality be classified as “conservative” blasted traditional American conservative positions.

And every Jaffaite since has been told that the South tradition is anathema to real American conservatism.

Take for instance our old friend Victor Davis Hanson, a man who hasn’t yet found an antebellum Southern institution he can’t denounce as being anti-American, or at the very least, anti-conservative.

In a recent piece at the New Criterion, Hanson proves once again that he has no clue about the South, American conservatism, or American history in general.

You see, Hanson argues that everything bad about the modern progressive Democrats is based on the Southern tradition: economics, labor, government, law, race.

If only they had good Radical Republican New England values, everything would be fine.

But Hanson seems to forget–or perhaps he never knew–that “Jim Crow” was born in New England.

Or that New England was the first section to discuss secession. Or that New England originally favored free trade only to drop it when tariffs were seen as the path forward to enrich their ruling class.

I could go on, and I will as I cover his piece in two separate episodes of The Brion McClanahan Show this week.

The first, episode 695, is already up.

I am going to say something that might surprise you:

The most important men in American political history were the Radical Republicans of the 1850s-1870s.

It’s not even close.

The immediate response, I am sure, will be, “But what about the Founding Fathers?”

I greatly admire the founding generation, and I consider them to be the greatest generation in American history.

But the Radical Republicans took their federal republic and threw it in the garbage.

In the process, they “recreated” America, or as I suggested in the title to this email “screwed up” America.

The Radicals preferred the term “reconstructed” America as opposed to “restored” America.

We live in the the America of the Radical Republicans.

They centralized power, emasculated the States, set the stage for cancel culture and “wokeness,” remade the American economy, crafted an imperialist foreign policy based on American “democracy,” crated the “proposition nation” and “righteous cause” myths, determined how historians would write about the War, sectional conflict, and Reconstruction, and redefined the Constitution.

In short, they did nothing less than establish a new American order.

They crafted a second American revolution and refounded the United States.

We don’t live in the founders’ federal republic because that republic died in 1861.

But we do live in Charles Sumner’s national United States and John Bingham’s “one people” Government dominated by New England ideas and New England culture.

This isn’t even questionable.

It doesn’t make it great, but it is the truth.

Even Southerners recognized this in the years after Reconstruction supposedly ended. It’s why they insisted that Americans be taught the other side of the story.

That side is now cast aside for the positions outlined in Charles Sumner’s “Crimes Against Kansas” speech.

Modern American historians simply regurgitate Radical Republican talking points and call it “history.”

The Straussians and neoconservatives echo what these radical said and call it “conservative.”

That would have been news to Henry Winter Davis who explicitly differentiated between his positions and those of the “conservatives” of his day.

And who is telling myths?

This is why I created my latest class at McClanahan Academy, Radical Republicans.

It’s a deep dive into these radical revolutionaries and their anti-conservative positions.

You get 13 hours of primary document lectures designed to help you understand how revolutionary these people were and their impact on modern society.

And from now through Labor Day, I’ve slashed $60 off the retail price.

Get Radical Republicans for only $119.

This is a steal.

And if you want more info on this outstanding addition to McClanahan Academy, I discuss the Radicals on Episode 694 of The Brion McClanahan Show

Yoram Hazony recently published a new intellectual history of American conservatism.

This is a worthwhile topic, but one that Hazony doesn’t seem to understand.

Russell Kirk did a much better job in The Conservative Mind nearly seventy years ago.

Why? Because Kirk included Southerners like Calhoun and Randolph.

Hazony argues that American conservatism is tied exclusively to the nationalists of the founding generation, meaning Washington, Marshall, Hamilton, Adams, and others like James Wilson and Gouverneur Morris.

He correctly identifies some of the most important characteristics of conservatism, but he fails to grasp the distinctiveness of American conservatism compared to a European model.

That comes down to one important word: federalism.

But not the federalism that Hazony attaches to American conservatives. To Hazony, federalism means nationalism.

That would have been news to those who understood the term in the 1780s.

The Federalist faction certainly stole the term, and they did it because they knew how committed Americans were to the principles of decentralization, i.e. the antithesis of nationalism.

In fact, the Constitution would not have been ratified if anyone thought it created a “national’ government.

That was the point. The so called Federalists duped the public.

The book provided a nice starting point for an episode of the Brion McClanahan Show, so I covered it on episode 686.

The New York Times published an expose on the Claremont Institute and its influence on modern American conservatism.

Anyone paying attention to conservative politics since 2016 would recognize the wide ranging impact on the conservative movement from Claremont and its programs.

The quickly abandoned 1776 Commission Report might as well have been stamped, “Produced and Approved by the Claremont Institute.”

Claremont provided most of the intellectual muscle for the Trump administration.

This wasn’t a good thing.

Let me explain.

I agree with Claremont and its scholars on most of their policy positions. They are solid on immigration and the culture war, for example.

But this is only part of the story.

The Claremont scholars don’t understand that their core principles run counter to real American conservatism and by default open the door to progressivism.

They are essentially parrots of long discarded leftist talking points repackaged as “conservative.”

This is due in large part to their intellectual godfather, Harry Jaffa, who wrote an entire essay describing equality as “conservative.”

You can’t conserve anything if you base your political “ideology” on Abraham Lincoln’s Gettysburg Address and his distortion of the Declaration of Independence.

I wrote two essays on this topic at Chronicles last year. Senior Claremont wonk Michael Anton didn’t like my critique and responded at American Greatness.

The New York Times piece had some surprisingly prescient critiques of Claremont, including the offhanded recognition that Jaffa hated the Southern tradition.

This explains why American conservatism based on Claremont is doomed from the start.

Russell Kirk understood that American conservatism had to include John Randolph and John C. Calhoun. Claremont rejects both men.

If you want a robust American conservatism, it has to include Southern giants like Calhoun. Otherwise, you will simply be leaving the door open to the egalitarian progressives bent on remaking society.

That is exactly what the Radical Republicans intended to do in the 1860s and 1870s, the same Republicans Claremont people like to champion.

They weren’t conservative, by the way.

I discuss the New York Times piece and Claremont on episode 685 of The Brion McClanahan Show.

In 2015, the Christian Science Monitor interviewed me about the push to remove Confederate symbols across the United States.

I argued that the next step would be removing the Jefferson Memorial or renaming Washington D.C.

It hasn’t exactly come to that–of course there is a push to remove Washington’s name from George Washington University–but it seems everything traditional in America is under assault.

This is by design.

The worst participants in this now seven year pogrom are the West Coast Straussians and neoconservatives who cheered when Confederate monuments came under attack.

They might have been “cautious,” but they nevertheless supported removing this “stain” from American history.

You see, if you worship Lincoln, the South becomes the unbearable blot on the Righteous Cause Myth of the United States. It has to be expunged.

Men like Victor Davis-Hanson among others made this clear. They might currently bemoan cancel culture, but they didn’t raise much of a whimper when the axe was falling only on Confederate heads.

Now even Massachusetts is about to be canceled, not the State itself, but it’s seal and flag.

I think it’s funny.

You see, the Massachusetts flag contains the State seal, and the State seal has been deemed racist.

To one member of the committee who voted for a revamped seal and flag, this was outrageous. Why? Because that flag defeated the Confederacy, and only the Confederacy is evil in American history.

This would pass for intelligent conversation on Fox News.

But the revolutionaries don’t care. They want it all.

If you think the 1619 Project people will stop at Confederate iconography, you are fooling yourself.

I was right in 2015 and I am right today, seven years later.

In fact, let’s just get rid of every bit of Yankee symbolism–including the team name. I find it offensive.

If we can’t just keep what we have, then every monument and symbol created before 2015 has to go, including those to “Honest Abe” and every racist Union soldier fighting to save the Union not free slaves.

Why should they get a free pass?

I discuss the issue on episode 682 of The Brion McClanahan Show.

In 2012, Barack Obama signed the NDAA into law, a bill that suspended the writ of habeas corpus in the United States.

Not many noticed, and Obama himself tried to downplay the significance of the bill by issuing a “signing statement” designed to soften the blow to civil liberties.

For those that don’t understand the terms “signing statement” or habeas corpus, I’ll help.

A “signing statement” is a soft line item veto. Essentially, the president issues a statement saying that he disagrees with that portion of the bill and will not likely enforce it. These are illegal, at least according to the Constitution as ratified, and Obama made headlines when as a candidate he promised to never issue signing statements.

Habeas Corpus is one of the most important civil liberties in the Anglo-American tradition. It literally means “produce the body” and is a shield against arbitrary arrest and indefinite detention. If you are arrested, you have to be charged with a crime. The government can’t just lock you up and throw away the key without charges or a trial.

It is so important, the founding generation placed it in the Constitution–under the powers of the legislature.

That’s where Obama’s action is interesting. He did nothing wrong by signing the bill. Congress suspended habeas corpus. But the “Constitutional scholar” Obama should have vetoes the legislation as it allows the military to arrest anyone on “suspicion” of illegal activity.

Not evidence. Suspicion.

You know who else suspended habeas corpus for this reason? Lincoln. But at least to Obama’s credit, he allowed Congress to do the dirty work. This was the proper constitutional method. Lincoln did it unilaterally and then let Congress back it up later. And don’t be fooled by the Righteous Cause Mythologists who insist the “Davis suspended habeas corpus too!” Yes, the Confederate Congress authorized Davis to suspend the writ, but unlike Lincoln, Davis waited for legislative approval before acting.

It still doesn’t make Obama’s move necessary or legally sound, and it could very easily be used to detain any American citizen for, say, “domestic” terrorism. After all, that is what the NDAA targeted, terrorists.

If the general government is “suspicions” about your activity, the military can arrest you and hold you forever if they choose.

Why? Because the suspension of habeas corpus has been extended for the last decade.

This is why so many people are wary of the expansion of the government’s “watch” list for political organizations.

The most important speech to protect is political speech. Every Englishman knew it for centuries.

But we seem to have forgotten that lesson.

I discuss the suspension on episode 681 of The Brion McClanahan Show.

Last week I talked about the situation with Ann McLane and the witch hunt in Virginia to take her down.

It worked.

McLane resigned from her appointed position, probably at the instance of the spineless governor. We should have expected as much.

Youngkin is just another establishment Republican. I pegged him for that a while back.

But the real issue at hand is something bigger, and the woke mob will never be satisfied until they can claim every scalp on their list.

They want all of us canceled.

And they really want you to spit on the graves of your ancestors. That results in a cultural reset in America.

We must accept the establishment narrative of American history or face expulsion from polite society, and in some cases, from our jobs.

But you see, this establishment history is just another interpretation based on the way the Radical Republicans viewed the world in the 1850s (more on that in my next class at McClanahan Academy).

History is complex, just as there are multiple views in history and among historical figures.

Ann McLane is a heretic because she dared challenge the standard narrative of Abraham Lincoln and the War.

The same thing the “Copperheads” did in the 1860s.

Ever heard of them? You have because you are on this list, but most Americans know nothing about Lincoln’s opponents.

I wonder why.

You see, if we truly want “complexity” and “contextualization” in American history, then every historical figure should be up for debate, not just those that the woke left want to target.

That includes Honest Abe. One dopey journalist thought McLane should be fired because she compared Putin to Lincoln. To him, that was her greatest offense. You can’t do that to St. Abraham.

The Copperheads said far worse, which is why they have also been canceled by mainstream academics.

I would surmise the majority of Americans still don’t want cancel culture and are still willing to listen to complexity, even if the left and the neoconservatives don’t want it.

Of course, my advice, just as Bill Kauffman wrote recently, is not to spit on your ancestor’s graves.

I discuss Kauffman’s piece on episode 680 of The Brion McClanahan Show.

Thomas Jefferson famously charged King George III with sending over “swarms of officers” to the American colonies with the sole purpose of “harassing” and “eating out the substance” of the American colonies.

These would be called bureaucrats, or the “Deep State”.

The general government operated with a very small paid cadre of employees for most of the early federal period. Alexander Hamilton had ONE employee as Treasury Secretary.

By the time Andrew Jackson took office in 1829, the number of federal employees had ballooned to 20,000 or so, and he had the opportunity to appoint all of them. That became known as the “Spoils System.”

The new Democratic Party, mostly organized by Martin Van Buren of New York, helped provide lists of names to Old Hickory. These were loyal men who deserved jobs in Washington.

This remained the status quo until 1883. Just two years earlier, a disgruntled office seeker shot President James Garfield in the back. Congress acted by passing the Pendleton Act, a law that made virtually all of the 130,000 government employees at that time “civil servants.” The president could appoint about 10,000 of these people, but it became harder to fire and hire people based on their political background.

This, in essence, laid the foundation for the Deep State.

There are nearly 3 million employees in the federal government today, and that does not include the military and those whose job almost entirely depends on government contracts (hat tip to a listener for pointing this out).

Current presidents get to appoint less than one half of one percent of these people when they assume office. In other words, the entire bureaucracy is out of their control.

We’ve gone from presidents having full control of the executive branch to virtually no control. And the progressives love it. Why? Because it blocks any outsider from draining the swamp.

Enter Donald Trump. In the last days of the his administration, Trump signed an executive order moving large numbers of these parasites to non-protected rolls in the general government. What did this mean? He could either 1) fire them or 2) find a political replacement.

This would have gutted the Deep State. Congress knew it. So did Joe Biden which is why he rescinded the order almost immediately after taking office. Now Democrats are trying to codify the Deep State by making it illegal for a future Republican president to follow up on Trump’s move.

Other Republicans have pledged to follow Trump’s lead should they win the 2024 election. This scares the leftists. The government is their plaything, and after Republicans have skillfully taken over many of the federal courts, the only thing they have left is the bureaucracy.

Gut that and they would be powerless to maintain their stranglehold on the general government.

I discuss this prospect on episode 679 of The Brion McClanahan Show.