The Procrustean Constitution

Patrick Henry

We have seen how Mississippi, with its campus free speech bill, totally ignored its own State constitution in favor of federal 1st Amendment arguments.  Now Texas is doing likewise in response to the San Antonio City Council’s decision to reject Chick-fil-A’s request to be a vendor in the San Antonio International Airport.  The opposition to this decision rests mostly on federal 1st Amendment grounds:

AUSTIN, Texas (BP) — Religious liberty advocates held “Save Chick-fil-A Day” at the Texas Capitol yesterday (April 17) after the restaurant was banned from the San Antonio airport for donating to religious non-profits.

Religious freedom group Texas Values hosted the event in support of two bills before the Texas Legislature banning religious discrimination, weeks after the San Antonio City Council cited Chick-fil-A’s religious outreach as the sole reason for blocking the franchise from the San Antonio International Airport.

Texas Values sponsored the event as the legislature held public hearings on House Bill 1035, dubbed the Free to Believe Act, which would provide freedom of conscience protections; and House Bill 3172, the First Amendment Defense Act, which would protect religious beliefs and moral convictions regarding marriage. Both bills are still in committee.

Diana Chandler

Thankfully, local laws haven’t been forgotten entirely in this case; there are references to city codes.

But this is a definite trend:  Legal challenges based on local and State laws and charters are overlooked in favor of those based on the federal charter.  This is not how the constitutional system was promised to function (though the reader should, and probably does, know full well that Hamilton et al. knew all along that the promise was only a deception).  We were told that it would allow for a wide freedom in how localities (States, counties/parishes, cities, neighborhoods, etc.) organized their respective corporate lives.  What we are seeing now is the opposite:  The U. S. constitution has in effect become a Procrustean bed on which all local variety of law and custom is being hacked into a one-size-fits-all system.

Whether it is 2nd Amendment lawsuits by the Right against city or State gun restrictions, or 14th Amendment lawsuits by the LGBT Left against the Christian marriage laws of States, the trend is only growing stronger.  There are a number of organizations dedicated to making every nook and cranny in the union fit a particular pattern:  the ACLU, Gun Owners of America, Fourth Amendment Center, First Liberty Institute, and the rest of them.

But why must Bangor, Maine, live exactly like Pawnee, Oklahoma, or Phoenix, Arizona, like Eau Claire, Wisconsin?  Because we no longer have cohesive communities in the States with their own common history and identity.  Folks no longer even know the stories of their own families.  They must either go to a genealogist, or humiliate themselves by sending part of their most secret self, their DNA, to stand naked before some faceless lab technician working for Ancestry.com, to discover something about their past.

We have not got fully formed people who are united by their common faith, history, songs, poems, and the like.  What we have got are millions of uprooted, disconnected individuals (the ‘virtual communities’ of Twitter and Instagram don’t count) who move from one place to another every few years or so in order to cash in on a better job offer from a national or transnational corporation.  They may live in a place, but they are not part of it in any substantial way.  Towns, cities, neighborhoods:  They are all super-sized hotels now, temporary holding pods for men and women constantly on the move up the corporate ladder who have jettisoned their past.  One of the few things they have that gives them a sense of belonging is politics.  And people who are not grounded in a particular place, culture, family, etc. will walk with their heads in the airy regions of the sky; they will be drawn to the most idealistic, theoretical, and abstract proposals presented to them.  This is why the idea of America as a ‘propositional nation’ has such a powerful hold on so many in the States nowadays.  Local, concrete institutions and traditions consecrated by the mists of time, to them, do not offer the same sort of power to ‘make a difference’ that national politics does.  They are too rigid, slow-moving, cautious.  But transformative, eschatological change must happen now, without any waiting.  Let all of them–birthplace, family, church, graveyard, neighborhood schoolhouse, county courthouse, and the like–be thrown into the seething cauldron of Progress to be fashioned anew according to the whims of the hour.

Thus, the U. S. constitution is now the iron bed, and ideology the knife, that these disciples of Procrustes use to shape their universe.  To quote the Holy Apostle James, ‘My brothers, this should not be so’ (James 3:10).  It is time we stopped fooling ourselves.  This system isn’t going to get any better.  It was not designed to; it was supposed to resolve itself into an all-powerful, anti-Christian national city.  We have got to replace it with something that encourages the formation of healthy people and places, something that does not allow the politics of ideology to become entrenched.

Perhaps one of the best examples to look at for folks in the States is what existed during their colonial-tide, the happier and more normal years of ‘salutary neglect’ that Edmund Burke spoke about in his speech to Parliament (‘Speech on Conciliation with America’, 22 March 1775).  While the States have made great strides physically, they have declined dramatically in other ways, with bureaucracy, technocracy, apostasy, idolatry, and so forth all choking the life out of the peoples of North, South, Midwest, and elsewhere.

Things were not quite so dire then.  Before we became part of the great epoch-shattering, world-transforming, new religion of the AMERICAN EXPERIMENT, most people understood that they belonged to a place here in North America (whether Georgia, Delaware, etc.), and yet they remembered their ties to their mother countries and did not let them wither (with the exception of New England, unfortunately, who started the whole idea of forming a new ‘body politic’ divorced from the past from their very beginning). 

Each colony was secure in its own laws and customs.  No one would have imagined that he could walk into a neighboring colony or go before the King’s Bench in England and sue to have that other colony’s laws overturned to conform to some fanciful ideology he worshipped. 

Each colony had its own religion-ways that formed the communal life of the people of that colony:  Congregational in New England, Quaker in Pennsylvania, Anglican in Virginia, etc.  To have the self-gratifying, fragmenting spirit celebrated by Bon Jovi running through the houses of worship is a dangerous thing for community cohesiveness.

Much is made of religious freedom today, but that only breeds religious indifference, as we are witnessing now with the rise of the ‘nones.’ What we are after is a vibrant but balanced and stable Christian life/culture (both individual and communal) that we can pass on to our offspring.  In order for that to be a reality, the government must in some way embrace and be embraced by the Church (as it was in colonial times and beforehand).  For there is no such thing as a religiously neutral government.  It will always be animated by some kind of belief system, which will become incarnate in its laws and other acts.

For these kinds of things to come about again, the States must return to their ancient constitution, with its mix of hereditary and elected elements that draw their life from the soil of Christianity and common law.  As keen political observers from Plato to some of the Antifederalists have noted, a people with mainly elected magistrates is quickly ensnared by demagogues.  Nobility AND commons, crown AND altar; these all together, not in dialectical opposition but in Grace-filled cooperation, secure the welfare of a country.

Many will be quite irritated at even the hint of a king here in the States, but such jealousy is unnecessary and even unnatural.  There is a reason that we are so enchanted when we read about the great kings of the past like Arthur in Wales and Alfred of England, or those in fiction like Tolkien’s Aragorn.  Just as the unwritten constitution of the nuclear family calls for a father; just as the unwritten constitution of the extended family, the clan, calls for a patriarch; so too the unwritten constitution of the ethnos, which includes within it all the extended families of the land (which is a picture of the South – a ‘vast cousinage’ as some have called it – and of most other traditional folk), calls for a father-figure, a king. 

And if even so zealous a proponent of political liberty as Patrick Henry could offer some praise on behalf of the King of England during the Virginia Ratification Convention of 1788, how much less difficult ought it to be for us to speak of restoring monarchy here amongst the States in light of all that we have experienced from John Adams onward vis-à-vis the elected federal president:

From that noble source have we derived our liberty: that spirit of patriotic attachment to one’s country, that zeal for liberty, and that enmity to tyranny, which signalized the then champions of liberty, we inherit from our British ancestors. And I am free to own that, if you cannot love a republican government, you may love the British monarchy; for, although the king is not sufficiently responsible, the responsibility of his agents, and the efficient checks interposed by the British Constitution, render it less dangerous than other monarchies, or oppressive tyrannical aristocracies.

–Patrick Henry, speech delivered 9 June 1788,

The written constitution itself has proven to be too perfect a vehicle for the propagation of positive law.  Its most basic act, the act of voting, inflames within a person the idea that he is not bound by any kind of law, nomos, or precedent but is instead autos, creator of his own law.  And this, too, is a powerful cause of the subversion of tradition we have been dwelling on.  Thus, the attempted cure for the abuse by Parliament of the common law the colonists loved so much has become an even greater source of woe for their descendants.  Much more thought needs to be given as to how the unwritten customs of society can be defended and strengthened against the seemingly unending onslaught of legislative laws, executive orders, and innovative judicial rulings that bombard us from all levels of government. 

One other thing seems necessary to suggest here at the end, which is at least as old as Thomas Jefferson:  Let each cultural region making up the current union become its own confederation.  There is no reason for them to go on antagonizing each other by staying under one roof, trying to force their folkways each upon the others through the power structures of Washington City.  There are sufficient ethnic, religious, and other kinds of differentiation between them to justify this:  Viking-East Anglian New England, Mormon Mountain States, Scandinavian-Germanic Great Plains, Spanish Southwest, and so on.  And poor Hawai’i:  Can we finally give her back to the descendants of Queen Lili’uokalani with our deepest apologies for Washington’s hostile takeover in the 1890s?

Politics will always be an essential part of Southern culture, or of any culture.  But politics must not grow to such a magnitude of importance as to swallow up all other areas of culture.  ‘Constitutional values’ in and of themselves, the kind Hannity and Levin are constantly rhapsodizing about, are not a culture (not a healthy one, at any rate).  The Christian virtues, Church Fathers, shape-note singing, harp and fiddle, Virginia reel, giant live oaks, blackberries from the cane, a white egret flying over a dark, slow-moving bayou, the front porch, county squires, the wise, grey-headed black man of the neighborhood, Greek tragedies, Roman pastorals, Eudora Welty’s stories:  This is a culture.  More particularly, it is all part of Southern culture.  Yet it must be stressed that this is only part of it.  A culture is an incredibly complex organism; it can never be reduced to a political or economic or some other kind of formula.  But that is precisely what we are getting more and more of here in the South and the rest of the States:  a cultural life truncated to fit within the clauses of a constitution, and we can scarcely bear going an hour without hearing the precious wisdom of Rush Limbaugh or Judge Jeanine.  But they ain’t gonna save us.  And Bernie Sanders and Nancy Pelosi and the 2020 elections ain’t gonna save us.  If any of the present gloom is going to be dispelled, the States will have to muster the courage and humility to say that the glittering American Experiment has failed and go back to what has worked in our past, to our pre-Modern, medieval European inheritance, from Spain and Portugal to the Ukraine and Russia; with its kaleidoscope of communities great and small (cities, hamlets, duchies, manors, villas, guilds, schools, monasteries, and such like) all united in the Christian Faith; with its respect for the mystery, the antinomy, of unity and diversity; not the social engineer’s dream of ‘Out of many, one’, but rather the balancing of oneness and manyness together.  How we should re-integrate that inheritance into present conditions is where our discussion ought to begin.

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