The Progressive War Against U.S. Constitutional Government

Six years ago, I wrote a post asserting that progressives are NOT liberals. Before that, I wrote an essay entitled Progressives’ Disrespect for the U.S. Constitution. Today, with the executive branch controlled by progressive Democrats under Joe Biden, and with both houses of Congress controlled by the Democratic Party, we see progressive Democrats again at war with the U.S. Constitution.

Our Constitution is a fruit of classical liberalism and of the Age of Enlightenment, also known as the Age of Reason. Liberalism means (or ought to mean) a desire to protect the rights of individuals from an oppressive government. A genuinely liberal government would protect both the lives and property of its citizens. In addition, absent libel or some other infringement of one citizen’s rights by another, the government should protect its citizens’ rights to think, believe, worship, and speak as they wish. The U.S. Constitution was constructed to accomplish all these purposes. Yet, the actions of Democrats threaten to make the Constitution’s guarantees of individual rights meaningless.

Progressive Democrats’ Reaction Against U.S. Supreme Court Decisions

Some of the most recent battles in the progressive war against the U.S. Constitution have been fought over new Supreme Court decisions. With the Supreme Court of the United States (SCOTUS) now dominated by justices appointed by Donald Trump and other justices with a more traditional view of the Constitution, a series of three decisions have angered progressives: a decision invalidating Roe. v, Wade, another restricting the power of the Environmental Protection Agency (EPA), and a third expanding school choice in the states.

Dobbs v. Jackson Throws Out Roe V. Wade

The first decision that outraged the American left was in Dobbs v. Jackson. That decision effectively overruled the 49-year-old Supreme Court decision on Roe v. Wade. That almost five-decade-old decision said that having an abortion was a federal right guaranteed by the Constitution.

The case of Dobbs v. Jackson Women’s Health Organization originated in Mississippi. What was in dispute was a Mississippi state law that banned abortion after 15 weeks of pregnancy. The litigation results in lower courts were appealed all the way to the Supreme Court based on Roe v. Wade giving a federal guarantee to abortion access.

The court’s traditionalist majority decided that, even though Roe v. Wade had been in effect for five decades, nevertheless it was egregiously wrong. Stare decisis should not be invoked because the reasoning that resulted in Roe v. Wade was completely invalid. Justice Samuel Alito wrote for the court that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Therefore, since guaranteeing abortion access is not one of the enumerated powers of the federal government and is not authorized by federal legislation, the federal government cannot do anything about abortions.

In this kind of situation, a power not allowed to the federal government is left to the individual states or to individuals. Dobbs v. Jackson in no way prohibits abortions, but the states can regulate them in any way they choose.

The Supreme Court Limits the EPA

A second extremely consequential Supreme Court decision limits the ability of unelected federal bureaucrats to regulate the behavior of everyone. Ever since the administration of Woodrow Wilson a century ago, Congresses dominated by American progressives have increasingly delegated legislative, executive, and judicial powers to the regulatory state (aka the administrative state). For over a century, the regulatory state has been destroying the separation of powers enshrined in the U.S.Constitution.

In West Virginia v. Environmental Protection Agency, SCOTUS ruled by a 6-to-3 majority that Congress must explicitly grant any regulatory powers to a regulatory agency. Runaway bureaucrats will not be allowed to create their own laws disguised as regulations.

This decision has particularly enraged progressives because it diminishes their ability to limit CO₂ emissions. The issue at hand was whether the EPA could force coal power plants to follow one of two courses of action. Either coal plants would have to reduce the energy produced for public consumption, or they would have to spend billions of dollars on alternative energy sources. Either way, the cost of energy to the public would increase enormously.

The federal government could still force such change, but Congress would have to legislate it. Because of its costs, such legislation could be extremely unpopular politically. This is what motivates members of Congress to attempt to delegate powers to the regulatory state.

The Supreme Court Expands School Choice

The third case inciting leftist angst is Carson v.Makin. By a 6-3 majority, SCOTUS decided that if a state gave tuition assistance to parents enrolling children in private schools, then the state could not deny such assistance if the school were religious. To do otherwise, the majority reasoned, would be a violation of parents’ constitutional right of freedom of religion. The first amendment to the U.S. Constitution asserts in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

Progressive Democrats would have us believe that the government assisting parents in enrolling children in religious schools violates the establishment clause. Yet, is the government forcing parents to send their kids to a religious school? And if religious school education were allowed, is the government choosing which religion is favored? The answer to both those questions is obviously no. Therefore, the state would in no way be establishing a religion. The choices are entirely those of the parents. Therefore, to deny those choices to the parents would prohibit their free exercise of religion.

For many on the political left, “liberalism”, in the false sense of modern usage, should be the enemy of traditional religion. This Supreme Court ruling strikes a blow against progressives’ ability to limit individuals’ religious liberty. It also increases parents’ ability to opt-out of the public school system.

Democrats’ Hostility toward the Constitutional Division of Power

For more than a century, progressives have been hostile to the separation of government powers into three separate branches of government. This progressive predisposition is particularly highlighted by the SCOTUS ruling on West Virginia v. Environmental Protection Agency limiting the EPA’s power.

What has motivated progressives is exactly what motivated Pres. Woodrow Wilson to start the process of building the regulatory state. In a 1912 speech while campaigning for his first term as President, Wilson declared he wanted Americans to take the Constitution as a “living”, evolving document. Instead of a Constitution guaranteeing ironclad rights for individuals, Wilson wanted a Constitution constantly evolving the relationship between government and its citizens. In particular, Wilson wanted to see power taken away from the political branches of government and given to technocrats in a regulatory state. Instead of a separation of powers between the government’s branches, Wilson believed society’s needs required close coordination between the branches.

Ever since Wilson, progressives have enthusiastically embraced this vision of a “living, evolving constitution”. In this point of view, the Constitution possesses all sorts of implied “penumbras” and “emanations” to be discovered by judicial interpretation. 

In addition, Pres. Wilson, as well as the progressives who followed him, historically have had a rather low opinion of the average American’s intellect and knowledge. They have believed most people are generally simple and incapable of solving most of their problems. Much less should they be trusted with the governing of the country. Moreover, they thought most people change their views slowly, if at all.

They have coupled this low opinion of most people with an inordinately high opinion of highly educated technocrats. Their dismissive view of ordinary people implied something else. Starting with Pres. Wilson, they have believed that as much as possible power should be transferred from institutions reflecting popular opinion to technocrats in the regulatory state. Such institutions include Congress and the Presidency. After all, the members of those institutions are elected by the people. Those federal officers must then be beholden at least to some degree to popular opinion. This purpose puts progressive Democrats in an eternal war with the U.S. Constitution.

Democrats’ Prejudice Against Federalism

The Tenth Amendment to the U.S. Constitution states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That is, if the Constitution does not explicitly give a particular power to the federal government, and if that power is not forbidden to state governments and individuals, then only state governments can use that power. If a state government does not exercise it, then only its citizens can use it. This amendment is an immense inconvenience for the Democratic Party. Progressive Democrats would like all states to act in lockstep with the same progressive policies. It does not matter to them that the states are culturally and politically diverse. Everyone must sing to the same tune.

Progressives are at war with the Tenth Amendment. This is shown by their reactions to all three of the Supreme Court Decisions discussed above.

In addition, this Democratic Party proclivity to undercut federalism shows a profound misunderstanding of why federalism is absolutely necessary. Many progressives have described Supreme Court rulings like the overruling of Roe V. Wade as “undemocratic.”

Yet, what does it mean to say that our country is a democratic republic? The fact that it is democratic means the people are sovereign. It is democratic because the governed ultimately rule themselves. That the country is a republic means the sovereign people accomplish this by electing their representatives to both chambers of Congress. They also select the head of the executive branch indirectly through the Electoral College. The ideal of our democratic republic is one where the citizens are subject only to laws to which they themselves have consented. Since there is a diversity of opinion, those who disagree with the majority agree to subject themselves to the will of the majority.

Yet, the United States is a very large and diverse country, and as the founding fathers observed, strict majority rule almost guarantees a tyranny of the majority. Somehow, the rights of all, including the minority, must be safeguarded. The founding fathers insured that with a number of mechanisms. These include the first 10 amendments to the U.S. Constitution, know as the Bill of Rights; the separation of governmental powers mandated by the Constitution; and the federalism exemplified by the separate sovereign states.

Federalism is founded on the Tenth Amendment. What federalism means is that governmental powers are shared between the federal government and the state governments. Should the federal government be able to nullify any policy or law of a state government, the rights and desires of that state’s people would also be nullified. The people of that state have expressed how they want to live through their choices of state officers in the state’s executive and legislature. Federal nullification of what a state has done would be a tyranny of the majority on a grand scale.

I reiterate, the United States is a very large and diverse country. Prior to the founding of the United States, a very large country with great cultural and ideological diversity could operate as a single country in only one way. A tyrannical and autocratic government would be required to suppress dissenters. If people want to allow great amounts of personal freedom for everyone, then constitutionally inviolable limits must be placed on government power. People within a state must be given the power to live largely as they wish. Otherwise, if the citizens of a particular state or a group of states are aggrieved by a loss of freedom mandated by the federal government, the probable result would be civil war.

By now it should be clear that because of the autocratic prejudices of the Democratic Party, they must be permanently at war with the U.S. Constitution. So long as courts at all levels require governments, particularly the federal government, to hew to the literal words of the Constitution, progressive Democrats will be forever frustrated.

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