in a Post-Christian, Post-Truth, Post-Human Age
This issue of Clarion was adapted from a speech given by the Honorable Janice Rogers Brown (ret.), the recipient of the 2022 Edwin Meese III Award, on May 18, 2022.
I want to thank Judge VanDyke for that lovely introduction. And I want to express my gratitude to the Alliance Defending Freedom for honoring me with the 2022 Edwin Meese Award. It is really an honor, and I am grateful and humbled to be considered worthy of it. I have said before that we all owe an incalculable debt to General Meese for his courage and perspicacity in pushing back — and doing so with great effectiveness and irrepressible good humor — against the plague of living constitutionalists who had hijacked the Constitution. I will always be grateful to Ed Meese for his friendship, for his many kindnesses, and for being such a mensch. For those of you who do not speak Yiddish, that means a man of integrity and honor. General Meese is the kind of brave-hearted, great-souled man who appears rarely in any generation — the kind of citizen and patriot whose wisdom and steadfastness continues to be a great blessing.
As bad as those old days were, I confess to certain nostalgia. The enemy was easy to identify; the path forward could be clearly discerned. There was still such a thing as the loyal opposition. Martin Luther observed that humanity is like a drunk who climbs on a horse from one side and falls off, clambers up the other side and falls off again. We are, as a country, going through a time of testing and trial. The election of 2020 may prove to be more of an existential crisis than the upheavals of 1776. After several years of unprecedented political tumult, civil discourse has been replaced by riots, and by speakers being intimidated and even assaulted by mobs. When public intellectuals as disparate as Christina Hoff Sommers, Ayaan Hirsi Ali, and Charles Murray are disinvited, de-platformed, or canceled, it is not because they are guilty of “hate speech” — however that is defined — but because they’re being condemned as heretics for contradicting left-wing orthodoxy.1 It is the same reason students who protest the appearance of Heather MacDonald are taught to sneer at “truth” as a Euro-normative construct they need never pursue.2 Perhaps that is the reason “post-truth” was declared Oxford Dictionary’s “Word of the Year” in 2016. Post-truth is an adjective defined as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”3 And it is certainly the reason university professors can argue that speech that opposes the left-wing narrative is violence and that to respond with actual violence is merely self-defense. When such bogus reasoners claim the moral high ground, it may be time, and past time, to think “anew” about the kind of polity it takes to sustain self-government.
Ours is not the America the Founders hoped to establish, and we are not the people who managed to sustain government of and by the people for a couple hundred years. Thomas Wolfe warns us that we can’t go home again,4 and in one Tennessee Williams play, the narrator says, “I didn’t go to the moon, I went much further — for time is the longest distance between two places.”5 Perhaps that is why we measure our distance from the stars in light years and not miles. Viewed that way, we read the history of America’s brave experiment the way we investigate old galaxies, knowing the light we see today is the reflected glory of events long past. And, in this epoch of progressive hegemony, time and distance seem to be the best way to think comparatively about Constitution making and breaking.
Madison, the architect of our Constitution, was a bit of a nerd or, to put it more kindly, a policy wonk. He had a prodigious work ethic, and he prepared for his role at the Constitutional Convention by a comprehensive course of reading on the history of failed democracies. Democracies, he concluded, were susceptible to rule by demagogues and mobs. In one of his most famous Federalist Papers essays, Madison condemned factions, defined as a group “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”6 To the extent being “woke” means supporting leftist causes through violence, threats, and intimidation without concern for the damage done to the government or our political institutions, the woke are difficult to distinguish from the impetuous mobs Madison feared.
Fifty years later, as confrontations over abolition heated up, Abraham Lincoln also foresaw that the unchecked growth of what he called the “mobocratic spirit” would destroy the American republic. In a prophetic speech at the Young Men’s Lyceum in Springfield, Illinois, Lincoln warned that what no “invading foeman” could do, “the silent artillery of time” might accomplish.7 In contrast to the progressive theorists who would succeed him, Lincoln thought the role of great political actors responding to urgent necessities “was to look backward rather than forward.”8 “As a nation of freemen,” said Lincoln in 1837, “we must live through all time, or die by suicide.”9 He believed that fading memory, “grow[n] more and more dim by the lapse of time,” was the greatest “danger to our political institutions.”10 The history that could once be read in the battle-scarred lives of our fathers, brothers, and sons — “the pillars of the temple of liberty” — had crumbled away, and he feared the temple itself would fall unless the succeeding generation replaced the old revolutionary passion with civil reason “molded into general intelligence, sound morality, and, in particular, a reverence for the Constitution and laws.”11
Lincoln and his generation succeeded in preserving the temple of liberty with new pillars, hewn not “from the solid quarry of sober reason” as he had predicted in 183712 but from a “new birth of freedom” that extended America’s founding promise of liberty to all Americans.13 I fear we now find ourselves on the precipice of another constitutional crisis. Where Lincoln perceived widespread lawlessness and violence, it daily becomes clearer there is a more fundamental schism in our national culture. Noting that we have abandoned the natural law, “the one deeper idea that kept us together,” Christopher Wolf predicts “the various factions of America must agree about general goals of public policy rooted in a common conception of morality, or we will have no union.” And that, Robert Reilly insists, requires a “resuscitation of ‘the Laws of Nature and of Nature’s God.’”
Daniel Hannan has observed that America was fortunate in the timing of its founding because the first colonies were planted when the mania for Magna Carta in England was at its height. The Englishmen who crossed the Atlantic were “keenly aware of their rights as free born Englishman and drew consciously on the language of the Great Charter when framing the charters of their colonies.”14 However, while British constitutional theory accepted parliamentary sovereignty, the colonists insisted that the “Great Charter, as a written compact, stood above both crown and parliament,”15 and it was that natural law sentiment that led to the notion of limited government that is at the heart of American constitutionalism.
There has always been concern about the fragility of the republican form of government. As the story goes, on the last day of the Constitutional Convention, when an importunate questioner asked Benjamin Franklin, “What [kind of government] have we got? He replied, “A republic, madam — if you can keep it.”
John Adams may have been the most prescient of the Founders on the subject of virtue — and he famously predicted that “[h]uman passions unbridled by religion . . . would break the strongest cords of our Constitution as a whale goes through a net.”16 The Constitution, John Adams wrote, “was made only for a moral and religious people. It is wholly inadequate to the government of any other.”17 President Washington warned in his Farewell Address that “religion and morality” were indispensable supports of a self-governing regime. Both Washington and Adams understood that virtue and morality could not be disconnected from religion and faith and that free government depended on maintaining those ties. From our present perspective, these observations seem naive, even simple-minded. But in reality, they reflect a coherent and fundamental philosophical understanding. Self-government depends on a precise architecture, a commitment to a consistent worldview carried through at every level. Our political institutions were invented by men for whom religion was a lodestar, reason was the holy grail, and civic virtue (responsibility, restraint, and self-reliance) was an inexhaustible resource.
The founding generation had a deep understanding of the way the axioms and first principles of moral reasoning were integral to the telos that defined American constitutionalism. The drafters of our constitutional documents assumed that any good regime must respect the nature of the creature to be governed. Man was a creature of the logos, whose rational nature, created by the God of the logos, was guided by the moral law engraved on every heart. The Founders presumably believed the statement adopted by Thomas Jefferson from the Virginia Declaration of Rights, edited and endorsed by the convention: “We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
The mistake of the French revolutionaries, in Adams’s view, was not contempt for tradition, it was contempt for man.18 Natural rights “rightly understood” were a framework for governance that respected man’s immutable nature. The distinctive achievement of the American Revolution was the establishment of the Constitution “as a formal instrument or code giving existence to government and prescribing and limiting the exercise of its powers.”19 Abraham Lincoln may have been the most articulate defender of the old “American constitutional order and the principles it enshrined.” Progressivism — a toxic combination of social Darwinism and philosophical pragmatism — undermined Lincoln’s (and the Founders’) conception of a fixed Constitution. Decades later, with a big assist from the judicial branch, progressivism has implemented a historicist view of the Constitution and constitutionalism.20 This is emphatically not a distinction without a difference.
American constitutionalism was the embodiment of the self-evident truth the Founders articulated; progressivism posits that there are no fixed or eternal principles that ought to govern the politics of a decent regime. The Founders distinguished between the cumulative progress of science and technology and progress in morals and politics, which must be taught to each new generation. They held fast to a vision of natural law, the antithesis of inevitable, transformative progress. This early understanding was grounded in rational, moral truths linked to religion and objective standards of right and wrong. These were ideas progressivism forcefully repudiated. Woodrow Wilson contemptuously dismissed America’s core principles as “Fourth of July sentiments.”21
No American institution was more deeply infected with the pathogen of progressive historicism than the Supreme Court. Nor did any component of government have a greater capacity to spread the infection. Many modern judges saw themselves as translators of the lofty generalities of the evolving Constitution. Consider Justice William Brennan’s position on the death penalty. In a 1986 speech, he described the Constitution as a “public text” and a “sublime oration on the dignity of man,” whose inherent ambiguities judges must resolve.22 Although the Constitution clearly contemplates capital punishment, Brennan insisted he was “bound” by the Constitution’s overarching theme of human dignity to ignore its actual text in order to embody a community striving but that had “perhaps not arrived.”23
This was the judicial adventurism to which General Meese administered the inoculation of originalism and textualism. The stock of the living constitutionalists did not fall in a day, but it became less and less defensible. The living constitutionalists claim they are merely keeping the Constitution in tune with the times. Conservative jurists reject the living Constitution in favor of strict adherence to the text, history, traditions, and logical structure of the Constitution. On the surface, this sounds admirably protective of constitutional premises, but consider Chief Justice William Rehnquist’s description of the source of morality in a democratic society:
If a society adopts a constitution and incorporates . . . safeguards for individual liberty, these safeguards indeed do take on a generalized moral rightness or goodness . . . neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice. . . . The laws that emerge after a typical political struggle in which various value judgments are debated likewise take on a form of moral goodness because they have been enacted into positive law.24
Really? Rehnquist then cites Justice Oliver Holmes’s famous attack on natural law approvingly. This, then, as Steve Hayward observes, not only leaves the door ajar to “unqualified majoritarianism” but also seems to mean “strict textual originalism is indistinguishable from positivism.”25 This apparent flight from moral substance seems to confirm Harry Jaffa’s trenchant observation: “No one can at one and the same time be a legal positivist and an adherent to the original intentions of the Framers.” Jaffa concludes,
In asking what were the original intentions of the Founding Fathers, we are asking what principles of moral and political philosophy guided them. . . . The crisis of American constitutionalism — the crisis of the West — lies in precisely the denial that there are any such principles or truths.26
In other words, once the truth claims and reliance on eternal verities are hollowed out, everyone is on the same side — and it is not the side of freedom. “Social expediency rather than natural right [determines] the sphere of individual freedom of action.”27
Recently, Justice Elena Kagan proclaimed, “We are all textualist now.”28 And yet, it appears that no amount of interpretive rigor can slow down the juggernaut of progressive ideology. Those ugly decisions just keep coming.
There was a time when this society’s intellectual life — “[its] views of the universe, of human nature, and of esthetics, [its] social and political ideas” — reflected a Judeo-Christian ethic.29 And as President Calvin Coolidge observed on the 150th anniversary of the Declaration of Independence, the clergy played an indispensable role. Coolidge’s speech carefully considered the underpinnings of American constitutionalism as found in the “texts, the sermons, and the writings of early colonial clergy who were instructing their congregations.” Thus, he said “[t]hey preached equality because they believed in the fatherhood of God and the brotherhood of man. They justified freedom by the text that we are all created in the divine image, all partakers of the divine spirit.”30
President Coolidge said more in that speech that becomes more resonant each day. He noted that at the time of the founding, “the people were not so much engrossed in how much they knew or how much they had, as in how they were going to live.”31
America now has the world’s oldest written Constitution. Its eloquence and venerable old age should be a reason to hold it in high esteem. Instead, as a couple of constitutional scholars have confirmed, the U.S. Constitution is increasingly out of step with global trends. An analysis of the 729 constitutions, adopted by 188 countries from 1946 to 2006, reveals that since the beginning of the 21st century, “there has been a precipitous decline in the use of the American Constitution as precedent.” Indeed, the constitutions of the world’s democracies are “less similar to the U.S. Constitution now” than at any time in the past 60 years.
And no wonder. Once we possessed confidence in our founding principles, and God blessed America because it was good. These days, we are not so sure. Legal scholars now seriously argue that we, out of “a decent respect [for] the opinions of mankind,”32 ought to reinvent ourselves; the Supreme Court has, at times, liberally sprinkled its opinions with citations of foreign law and foreign public opinion; and the loyal opposition that once characterized American politics has been reduced to an echo chamber of Old Europe’s virulent anti-Americanism. The U.S. Constitution, with all its amendments, is 7,299 words. Compare that with the Constitution of the EU — a.k.a. the Treaty of Lisbon — containing a staggering 76,000 words. As Daniel Hannan observes, the U.S. Declaration of Independence promises life, liberty, and the pursuit of happiness. The EU equivalent, the Charter of Fundamental Rights and Freedoms, “guarantees its citizens the right to strike action, free health care, and affordable housing.”33 The U.S. Constitution was the culmination of a popular uprising in which citizen soldiers left their crops in the fields to fight. In contrast, the EU Constitution was imposed over the objection of an electorate that had repeatedly rejected its provisions at the ballot box. “Where the one was based on empowering the people and controlling the state, the other was based on empowering the state and controlling the people.”34
Something has gone wrong. Ryszard Legutko may be right: There is a demon in democracy. But we seem to be in a place we have never been before. These are not our fathers’ totalitarians nor the social justice warriors of a decade ago. Maybe they are not even the “wokerati” of the 2020s. Like Butch Cassidy and the Sundance Kid, we keep asking, “Who are those guys?” I think we know.
In an age when we have had to deal with the looming malevolence of GAFA35 and the madness of crowds, we understand inventing a future for freedom won’t be easy. Whenever an open society comes into conflict with a closed society, the open society loses — at least temporarily. And the struggle is amplified when the closed society begins inside the gates — all the more terrible when our children and grandchildren label us the enemy. Ingratitude is ugly, class warfare uglier, and racial hatred is a horror from which we cannot avert our eyes, even when it pretends to be a religion focused on purifying and cleansing the stains of a reprehensible past.
Leszek Kołakowski’s long view of history echoes the elements of mythic struggle. He invokes St. Augustine’s poetic trope in The City of God, recalling how God enriches history by the same kind of antithesis that gives beauty to poetry. “[T]here is beauty in the composition of the world’s history arising from the antitheses of contraries — a kind of eloquence in events instead of words.”36 Thus, he concludes the devil often tries with great success to “convert good into evil,” but the battle is never ceded to him.37
God, Kołakowski says, may “reforge evil, havoc, and destruction into instruments of his own design.”38 But the devil's twisting of light into darkness has the potential to turn politics into a sheer struggle for power, which seems to be the best explanation of our toxic, top-down revolution.
America has been a beacon to the world because of its commitment to freedom; it has now become a pariah for the same cause.
In the 21st century, things have changed; America is routinely pilloried as the wors[t] society in the world, condemned for its domestic racism, as well as the spread of its cowboy capitalism and its cultural hegemony. A cynic might echo Revel’s rueful observation: “Were the American ‘melting pot’ [so cruel a mirage], we would expect to see disillusioned hordes abandoning the U.S.A. for Albania, Slovakia, and Nicaragua.”39
Instead, our southern border is being overrun by hundreds of thousands of people seeking to gain entrance.
The spirit of radical multiculturalism, a movement that began in the 1960s, morphed, in the fullness of time, into full-fledged wokeism. The revolution of 2020 seemed to take us by surprise. But had we been less distracted by video games, phony reality shows, and mind-numbing social media, we might have realized American universities have spent the last five decades making sure that college graduates in 2020 — especially those with advanced degrees — can’t quite grasp a concept that toddlers had no difficulty understanding in 1970, such as the wisdom of Sesame Street: “One of these things is not like the other”!
During a global pandemic — one that purportedly justified unprecedented restrictions on basic liberties — the press characterized the wanton destruction of the country’s historical legacy (statues being toppled, monuments defaced and vandalized, and businesses being pillaged) as legitimate expressions of social unrest. So, what if it looked like what Margaret Thatcher described in an earlier era as “crime masquerading as social protest”?40 The opposite of objective truth is poisonous subjectivism. And, as C. S. Lewis warned long ago, starting down that slippery slope must soon lead to the abolition of man.
Even in the 1990s, Christopher Lasch noted the culture wars were thinly disguised class warfare and “middle America . . . ha[d] come to symbolize everything that [stood] in the way of progress: family values, mindless patriotism, religious fundamentalism, racism, homophobia, retrograde views of women.”41 And yet, it is the new religion of social justice, or wokeism, or moral environmental purity, that insists on orthodoxy and dogma. It is their beliefs that are impervious to rational discussion. The poison of subjectivism dictates that “protest is the distinctive moral feature of the modern age” and “indignation the predominant modern emotion.”42
It is worth noting that this stifling new religion demands not only punitive zeal but also dogmatic self-righteousness. The narrow intolerance that characterizes this virulent iteration of identity politics is the antithesis of the transformative community ethos that possessed the souls of folks stirred by the religious revival that swept across the American colonies. Professor Joshua Mitchell says that the Christian notion of radical equality is being supplanted by a strange sort of anti-egalitarian “spiritual eugenics” that require pure and innocent groups to ascend while the stained transgressor group must be purged.43 However creatively it may be analogized, it is a vile, destructive, mean-spirited orthodoxy.
And it is being aggressively exported. Robert Cardinal Sarah has expressed dismay at the way international organizations are trying to impose “by any means” the deconstructive theory that differences between men and women are nothing but oppressive norms. “To say that human sexuality no longer depends on the identity of a man or a woman but rather on sexual orientations . . . is a nightmarish totalitarianism.”44 He concludes, “The battle to preserve the roots of mankind is perhaps the greatest challenge the world has faced since its origins.” More recently, the World Health Organization has published new abortion care guidelines that demand access to taxpayer-funded abortion at any time for any reason and prohibits any requirement for consent by the parents of a pregnant minor or by the father of the child.
This is a tyranny of those at the top of the social hierarchy, a self-interested, narcissistic minority committed to “warping . . . not just state power but all human institutions to serve private interests at public expense,”45 and they are indifferent to, indeed boldly dismissive of, the notion of the common good. How did America’s hopeful experiment in self-government devolve into this toxic, top-down war against truth? Against reason? Against objective reality? Against God? It is a story as old as Eden.
Orestes Brownson, in the wake of the Civil War, recognized the danger of the humanitarian impulse of the abolitionists, which might seem to the casual observer to be “building on a broader and deeper foundation . . . being more Christian, more philosophic, more generous and philanthropic; but,” Brownson warns, “Satan is never more successful than under the guise of an angel of light.”46 Brownson saw that humanitarianism and Christianity are not the same. Humanitarianism puts man in the place of God and loses men in humanity, thus sacrificing the rights of men in a “vain endeavor to secure the rights of man.” Brownson, like Prince, was quoting the Apostle Paul: “And no wonder, for Satan himself masquerades as an angel of light. It is not surprising, then, if his servants also masquerade as servants of righteousness” (2 Corinthians 11:14–15). It will take great courage to take a stand for truth when we live in the kingdom of lies. I do not know if the American experiment can be saved. I do know we must do everything in our power to rescue its ideals. We have not just a country to restore, not just a civilization to defend; we are struggling to preserve what God created as the crowning achievement of the cosmos — humanity itself.
The Honorable Judge Janice Rogers Brown served on the U.S. Court of Appeals for the D.C. Circuit from 2005 to 2017. From 1996 to 2005, she was Associate Justice of the California Supreme Court after serving on the state’s Third District Court of Appeals. She’s served in the California Attorney General’s Office and held various government roles in law schools and the private sector.
Judge Brown currently serves as a visiting professor of law at the University of California Boalt School of Law.
A native of Greenville, Alabama, Judge Brown is a graduate of the UCLA School of Law, California State University-Sacramento, as well as the University of Virginia School of Law’s Masters of Laws program.