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Progressive attacks on the US constitution escalate

Barbara McQuade argued that the First Amendment was an obstacle to truth. Credit: MSNBC

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.

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El Uro
El Uro
4 months ago

They are commies. They hate freedom

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  El Uro

“Commies”????
Take a seat, Dr Strangelove – its 2024!

Daniel P
Daniel P
4 months ago

I hate these people. They are downright evil.

We get closer to a civil war every day.

Arthur King
Arthur King
4 months ago
Reply to  Daniel P

I didn’t think civil war was a possibility until they sided with Hamas. It is the first time I felt that progressives want war. Without a free democracy, war is the alternative. Progressives do not comprehend how they have been pushing Conservatives towards the only option left open to us.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  Arthur King

This is the type of lunacy that Unherd readers choose to upvote.

Julian Farrows
Julian Farrows
4 months ago
Reply to  Arthur King

I fear that they look upon what is happening to the Jews and fantasize about committing similar acts of violence here against their designated enemies: Christian nationals, TERFs, boomers, gammons, patriarchs, pale stale males, Karens, incels, nazi truckers plus all the other groups they have made up.

Damon Hager
Damon Hager
4 months ago
Reply to  Arthur King

Don’t do it. It’s what many of them want, and it would give them a kind of victory. Resist hard, but peacefully, and within the law.

Jim Veenbaas
Jim Veenbaas
4 months ago

Anyone who opposes free speech is an enemy of the people. It doesn’t matter how they frame it. There are criminal laws across the west that make incitement of violence illegal. That’s the only guardrail we need to feee speech.

I agree with MH that the constitution can only protect free speech to a limited degree. If the vast majority of people oppose free speech, it is ultimately doomed.

Douglas Proudfoot
Douglas Proudfoot
4 months ago
Reply to  Jim Veenbaas

When I was growing up in Montana, in the 50’s and 60’s, people distinguished between freedom and dictatorship by saying that dictatorship censored free speech and had show trials to condemn opponents of the regime. Now, the left clams that protecting Our Democracy(TM) requires government “suggested” censorship and show trials to protect it. To me, that indicates that they want dictatorship. Since I live in Illinois, and have since 1976, I have seen what single party dominance and now dictatorship can do. It’s lawless rule of men, not the rule of law. Democrats are domestic opponents of the Constitution. I swore, as a USAF Officer in 1972, to defend the Constitution from all enemies, both foreign and domestic, including today’s Democrats.

Malarkey from people that say the Constitution is a living document that changes meaning is just a way to avoiding the amendment process. The Constitution is written down so its meaning is fixed. To change it, the Constitutinon itself has a process that includes 3/4 of state legislatures ratifying amendments. Nowhere in the document does it say that the courts can redefine what it means on a whim, without any state ratification.

People who take oaths of office swear to defend the Constitution. They don’t swear to defend whatever the left wing mob wants it to mean this week.

Trump backs the Constitution in action, if not rhetorically. Democrats back whatever gets them more power, regardless of the Constitution and the rule of law. No matter how much you dislike Trump’s rude Tweets and bad attitude, the Constitution and the rule of law is more important. Your right to an abortion ain’t a substitute for the Bill of Rights, particularly if you can travel to another state to get one.

Cathy Carron
Cathy Carron
4 months ago

It bears repeating- “Democrats back whatever gets more power, regardless of the Constitution and the rules of law”

Damon Hager
Damon Hager
4 months ago
Reply to  Jim Veenbaas

Britain’s Edmund Burke (the “Father of modern conservatism”) would have reminded us that the survival of liberty, and other social values, requires a sense of national, communal cohesion, with many essential values passed down from one generation to the next.

These values can be modified, certainly, and they should accommodate dissent. It’s never been necessary for everyone to agree. What this model cannot survive, however, is the loss of an overall national-communal sense of common mission, history and identity. A situation, in other words, in which large groups of citizens feel mutually alienated, with no sense of core values around which they can coalesce.

When two or more blocs regard competitors as simultaneously incomprehensible and malign, youve got problems. That’s what you’re getting to over there in the Land of the Free. Of course, I’m just a foreign observer, and I hope I’m mistaken.

Betsy Arehart
Betsy Arehart
4 months ago
Reply to  Damon Hager

As a U.S. citizen I say no, sadly, you’re not mistaken. We are in a real pickle.

Andrew Fisher
Andrew Fisher
4 months ago
Reply to  Jim Veenbaas

I agree to a large extent with your sentiments, but your first and last sentence are in complete contradiction!

Jim Veenbaas
Jim Veenbaas
4 months ago

The arrest of Baker is truly frightening. There is no question he is a legit reporter. The state would have to have very compelling evidence that he was part of protest, rather than simply reporting on events as they unfolded.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  Jim Veenbaas

” There is no question he is a legit reporter.”
No question? You sure about that, Jimmy? I’ve got a few questions….

Steve Murray
Steve Murray
4 months ago

You’ve always got questions, but not a single answer. Incapable of independent thought, brainwashed and irrelevant.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  Steve Murray

Uh, I’m the only independent thinker around here, slick! The rest of you sheep all bleat along with the dumb party line. You people are so stupid that you think Donald Trump is a smart rich guy (he’s neither of course!).
You just keep following me and you may actually learn something…

Jim Veenbaas
Jim Veenbaas
4 months ago

The smartest guy in the room. Congrats.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  Jim Veenbaas

Save your congratulations, Jim – being the smartest guy in this room is like being the tallest person at a dwarves convention…

Ian_S
Ian_S
4 months ago

Entertaining yourself there are you CS? What are you drinking? You’ve had a few already it seems.

Cho Jinn
Cho Jinn
4 months ago

1) Yes, PETA will take issue if you perform certain acts with farm animals.
2) No, you can’t use your EBT card at the strip club…I think.
3) Yes, you have wasted your life.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  Cho Jinn

I certainly wasted 5 seconds of it by reading this idiocy!

Tom D
Tom D
4 months ago

Your ‘questions’ have no bearing on the matter. In the U.S. the First Amendment ensures that the legitimacy of a reporter cannot be legally questioned. There are no illegitimate reporters.
In line with Mary Harrington’s report, it should be noted that some ‘progressive’ U.S. journalists have proposed state licensing of journalists, precisely to delegitimize their opponents.

Champagne Socialist
Champagne Socialist
4 months ago

The US constitution is a joke. You’re still arguing over every word of it after 250 years. And you let sleazebags like Clarence Thomas interpret it for you depending on who has paid him the most recently.

Arthur King
Arthur King
4 months ago

Truth is still valid 250 years later. Or 2000 years later. The US constitution in its original interpretation is one of the most important legal documents in human history. It was worth a revolution then as it is now. Progressives are so blind to the reality that freedom loving people are natural revolutionaries.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  Arthur King

So does the original interpretation still include black people being considered property?

T Bone
T Bone
4 months ago

Nobody triggers white progressives quite like a black conservative.

Champagne Socialist
Champagne Socialist
4 months ago
Reply to  T Bone

Its a shame that he’s a crook too.
Amazing how often being a conservative and a crook go hand in hand!

Ian_S
Ian_S
4 months ago

Have another drink, CS.

Rob N
Rob N
4 months ago
Reply to  Ian_S

Personally I think all Unherd readers should completely ignore CS’s rants. He/she/its commemts are so pointless and inane that we should not waste our time on them. Certainly don’t respond to them.

N Satori
N Satori
4 months ago

…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…

An important insight and an antidote to the belief that the whole world needs and wants democracy.
In fact peoples who find that democracy needlessly complicates civil life are arriving in the West in huge numbers. Their ‘dispositions, habits and accumulated cultural patterns’ will surely force substantial changes over time – no matter how we try to cling to those values that politicians are always talking about.

Jim Veenbaas
Jim Veenbaas
4 months ago
Reply to  N Satori

I agree that the west should stop trying to impose democracy on every nation in the world – it’s usually just a pretext for more nefarious motives anyway. Some cultures just aren’t ready for it. Regardless, it is still the most egalitarian form of governance in the history of the world and we need more of it. What’s the famous saying? Democracy is the worst form of governance, with the exception of all the others.

N Satori
N Satori
4 months ago
Reply to  Jim Veenbaas

That saying rolls off the tongue much too easily. When you say some cultures just aren’t ready for it you imply that it is a form of cultural evolution every society must eventually grow into. Yet it seems to me that our mass societies have now grown to such enormous size that a system which suited the city state of Athens centuries ago is looking a little inadequate for the task.
If you doubt what I am saying (and I’m sure you do) consider what happens when the votes of millions of people conflict drastically. Good examples would be Brexit or the Trump presidential victory and subsequent defeat. Huge numbers of people finding that their nation is being dragged away from their dispositions, habits, accumulated cultural patterns while others are happy that the nation is finally taking the right course. Add to that the further complexities of multiculturalism and the circle becomes impossible to square.
The first-past-the-post system depends on the losers graciously accepting defeat and hoping to do better next time but with political involvement now full of such heated moral questions accepting defeat is akin to betraying one’s principles. The reflex response is to call for proportional representation but I cannot see that providing a stable solution.
Anyway, apologies for the lengthy reply.

Studio Largo
Studio Largo
4 months ago
Reply to  Jim Veenbaas

As the alternative to constitutional democracy, what does the far left propose? Marxism, naturally. Who’s the world’s most successful exponent of Marxism? Who’s managed to infiltrate academia, primary and secondary school education, corporations, the media and the government, including the military? If we don’t stop these bastards, our lives will be worthless, as will we be as men and women.

UnHerd Reader
UnHerd Reader
4 months ago

A good essay acknowledges the “other side.” He could have discussed the most worrying trend in conservative rulings: using God. The Alabama judge who decided embryos were people seemed to know what God thought about the beginning of life. He added biblical passages to justify his ruling. Perhaps the left is taking an axe to the First Amendment, but the right seems to have God on their side.
Kimberly

T Bone
T Bone
4 months ago
Reply to  UnHerd Reader

Are you familiar with the 10th Amendment?

Julian Farrows
Julian Farrows
4 months ago
Reply to  UnHerd Reader

I would definitely want G*d on my side. Why wouldn’t you?

Mark Kennedy
Mark Kennedy
4 months ago
Reply to  Julian Farrows

“Who’s fighting on your side?”
“Angels. The Heavenly Host.”
“Oh. Well, I surrender then.”

Tom D
Tom D
4 months ago
Reply to  UnHerd Reader

You are incorrect about the Alabama case. First, it makes no mention of God. Second, people invest great emotions into their [ahem, wanted] children, and this includes IVF children. The basic question in the Alabama case revolving around IVF fetuses destroyed via malpractice was what level of compensation could the parents claim? That of the loss of a child, or of just some tissue? Narrowly construed (that is, without referring to other issues) it seems to me that the Alabama court made the correct decision. The legislature has now overridden the decision, but if it had not the only downside would have been increased insurance rates for IVF clinics, which would have been passed on to their clients’ health insurance. All other statements on this subject, like your’s, are falsehoods.

Thor Albro
Thor Albro
4 months ago

Thanks to MH for quoting Christopher Caldwell. I was somehow ignorant of him but just bought his book – The Age of Entitlement: America since the sixties.

Ian_S
Ian_S
4 months ago

The progressive’s immediate problem seems more to be about the 1st Amendment than the constitution as a whole. Unfortunately 1A allows the wrong kinds of people to speak. Progressives are frustrated. Their rainbow revolution is so close to total victory, so many institutions already conquered, and yet lowbrow hecklers continue to hang on, able to survive by private business, seemingly heckling louder than ever. “Why can’t we just shut these people up”, the progressives say — after all, as progressives note with approval, it worked on their college campuses, so why not everywhere else too? The more pragmatic among the progressives realise it’ll take time to dismantle the whole white supremacist constitution, but 1A can be got rid of today. That seems to be the thinking on liberal women’s shows like “The View”.

Matt Hindman
Matt Hindman
4 months ago
Reply to  Ian_S

You might have a point if they did not also hate the Second Amendment, are making it clear how little respect they have for the Forth, Fifth, and Sixth Amendments, cheering violations of the Eighth Amendment, and have been seeking to destroy the Tenth Amendment almost as much as the Second.

William Brand
William Brand
4 months ago

America’s current struggle is between the 48% of the people that support the original constitution and the Woke people who want to change it. The Christian nationalists are the believers in the original document. They just followed Trump because he was the only one who stood for it. Trump’s private behavior does not contradict his stand for the constitution. I wish they had a better standard bearer.

Jim Veenbaas
Jim Veenbaas
4 months ago
Reply to  William Brand

WTF!! Why are we suddenly taking about Christian nationalists? It wasn’t a thing 10 minutes ago. Stop letting progressives set the agenda

Warren Trees
Warren Trees
4 months ago
Reply to  Jim Veenbaas

Amen

laurence scaduto
laurence scaduto
4 months ago
Reply to  Jim Veenbaas

Agreed!

R E P
R E P
4 months ago

Bet there will be little or no coverage of this arrest in corporate media here or in the USA.

Mark Kennedy
Mark Kennedy
4 months ago

Christopher Caldwell’s claim that America’s Republicans and Democrats are appealing to two different conceptions of the constitution succeeds in making sense of a lot of things, and I’m pleased to see a reference to it here. If nothing else, the insight confirms the wisdom of progressives and conservatives reading each other’s writings. Those who attempt to ‘purify’ their reading ideologically are committing intellectual self-sabotage. 
 
As for Ms. McQuade and Ms. Przybyla, theirs is exactly the sort of hubris and authoritarian, rights-trampling zealotry the constitution was designed to protect their fellow citizens against. Neither they nor their ideas are novel or interesting, just curious, fodder for future Ph.D. candidates in sociology tasked with explaining how 21st century political discourse in America managed to go so far off the rails.

Fafa Fafa
Fafa Fafa
4 months ago

Let’s use the word “progressive”in its original, value-neutral sense, and not in the sense of “proponent of enlightened social/political reforms” (because these people are anything, but), while substituting the misnomer “progressive” with a more apt description, and rephrase the title thusly: “Sectarian attacks on the US Constitution are progressively getting worse“.

UnHerd Reader
UnHerd Reader
4 months ago

Harrington is correct. A Constitution should be a living, legal document for the rule of law. And the US document provides avenues for that. I would love congressional term limits, a federal government balanced budget, and the iniquitous ‘Citizens United’ destroyed. All three require the devolution, rather than the concentration of government. But, I’m quite utopian….one commentator mentioned violence……I cannot disagree from a historical perspective.

j watson
j watson
4 months ago

Yet more remarkable tripe from this Author who seems more recently to have developed a self perception she’s some doyen of historical analysis.
Given the antics of Trump and the MAGA – Trump certainly hasn’t read the Constitution and having vowed to uphold it did and does the opposite – this Article is just partisan nonsense poorly camouflaged as intelligent discourse.

Michael Daniele
Michael Daniele
4 months ago
Reply to  j watson

Could you provide an example of Trump failing to uphold the constitution?

b blimbax
b blimbax
4 months ago
Reply to  j watson

I was initially inclined to write that yours is one of the most spectacularly uninformed comments to this article. However, I decided to give you the benefit of doubt and to assume, instead, that you haven’t bothered to read the article at all.

N Satori
N Satori
4 months ago
Reply to  j watson

Well, well watson. You’ve come down off your intellectual high horse and decided that abuse better serves your purposes.

G M
G M
4 months ago

There is a struggle for free speech going on right now.

The forces of censorship are strong and want to impose their values on others.

Free speech is a pillar of democracy.
Without free speech democracy cannot stand.

G M
G M
4 months ago

In Canada the Trudeau Liberals have proposed the Online Harms Act that lets government appointees determine what type of opinions are allowed, restricts the right to know who your accusers are and rewards those who say they have been offended and wins their case up to $20,000 CAD each.
The government body that determines what opinions are allowed is called the Orwellian sounding ‘Digital Safety Commission’.
To defect criticism they have added it to a bill against child pornography/exploitatio.
So if you oppose the censorship part of the bill they can say you’re supporting child exploitation and child pornography.

Also ‘anyone with the attorney general’s consent can request that a judge order a 12-month “recognizance to keep the peace” if they have reasonable grounds to suspect that someone might commit hate speech in the future.
If they agree, they can be subject to major restrictions on liberty such as giving a bodily sample, refraining from drugs and alcohol, and wearing an ankle monitor. If they refuse, they can be imprisoned.’ (from the Hub).

Plus it ‘creates a civil offence that need only be proved on a “balance of probabilities,” which is much easier than meeting the criminal law’s more stringent threshold of “beyond a reasonable doubt.”’ (from the Hub).

laurence scaduto
laurence scaduto
4 months ago

The notion that immigration has diluted the American-ness of the Americans, hinted at in Mary’s article and many of the comments, is just wrong. The only people who are agitating for the end to our Constitutional protections are progressives. They’re almost all White or Black; young people whose families have been here for many generations.
Most immigrants I know are happy and even proud to be here. They’re most interested in big cars, big TVs and getting their kids educated enough to eventually earn the big bucks. The process of becoming a citizen involves a test about our history and the Constitution, so they tend to know more about it then those barely educated progressives.
In reality, the progressives are totally flipped out about Trump. He’s the root of all of their agita. And it’s about to get much worse.
I understand that in the UK, Ireland and the rest of Europe things might be very different. Islam, in its modern Middle Eastern form, does not seem to be a good fit with open democracies. But here in the US they’re not a large enough demographic to be any real threat.

Michael Cavanaugh
Michael Cavanaugh
4 months ago

With a 24-hour news cycle comes an inflated commentariat population; it draws from a demographic of full sheepskin, half-education. The views of Barbara McQuade and Heidi Przybyla, discussed here, seem both good examples of this process at work.   Simple commonsense can readily sort disinformation, technocratically, no further discussion needed?  (Surely no pesky 1A needed! It is what makes Truth vulnerable to error.) Rights are granted by the US Congress and the Supreme court, and only theocrats think otherwise? Sophomoric.