Enter totalitarian democracy

On the difficulties of making law in the modern world

by Andrew C. McCarthy

    "I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” 

The speaker was Associate Justice Ruth Bader Ginsburg of the United States Supreme Court. These, therefore, were astonishing words.

The authority over American law enjoyed by Justice Ginsburg and her colleagues on the Court owes solely to the existence of the U.S. Constitution, complemented by the high court’s proclamation that it has the last word on how that Constitution is to be construed. That latter power grab traces its roots back to Chief Justice John Marshall’s legendary 1803 opinion in Marbury v. Madison. Marshall “emphatically” declared it “the duty of the Judicial Department to say what the law is.” Despite naysayers from Jefferson to Lincoln, who thought that judicial supremacy would eviscerate popular sovereignty, Marshall’s assertion paved the way for the modern Court to claim even more boldly, in Cooper v. Aaron (1959) for instance, that judicial control over the Constitution’s meaning is a “permanent and indispensable feature of our constitutional system.”

In short, were there no Constitution, there would be precious little interest in Justice Ginsburg’s views. Yet, when she looks at this venerable source of her power—ratified in 1788 and, thus, as she explained, “the oldest written constitution still in force in the world”—she sees obsolescence. In its place, the Court’s senior progressive ideologue advised the assemblage of university students whom she was addressing to “look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, [and] had an independent judiciary.”

But wait. Let’s put aside the fact that no jurists in the world are more autonomous than the federal judges of the United States. Does not America’s fundamental law, with its robust Bill of Rights addendum, embrace basic human rights? Well, no. It embraces basic human freedoms. That makes all the difference.

Freedom is of minimal interest to progressives, certainly not freedom as is commonly understood: namely, the bedrock conceit that we are our own governors, autonomous over our own lives. To be clear, we are talking about freedom in a democracy, not an anarchy. In a rational social compact, freedom requires that we surrender a quantum of our independence to secure the nation and to honor the rudimentary norms of respect for life and property. If a free society is to flourish, nothing less than ordered liberty will do.

Alas, the “liberty” part of ordered liberty is not the concern of Justice Ginsburg and her fellow travelers. For them, the individual’s freedom is a relic of a bygone time, when life was simpler and dominated by sexist, slave-holding white men of a colonialist bent. The modern Left’s métier is rights, in the contemporary connotation: i.e., what you must give to me, with government handling both the confiscation and redistribution ends of the arrangement. In contrast to the traditional rights Justice Ginsburg finds so unrefined—to wit, the right to be free from government demands and the right to have government restricted to its expressly enumerated powers—the new rights cover everything from the mortgage arrears of spendthrifts for houses they could not afford to contraceptives for the sexual recreation of young women at nominally Catholic law schools.

On those sorts of “rights,” the U.S. Constitution never was much good. Better to go with South Africa or, as Ginsburg further recommended, the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights, and “all the constitution writing that has gone on since the end of World War II.”

What has actually gone on since the end of World War II is the rise of “totalitarian democracy,” to borrow the lapidary descriptor of the political scientist Jacob Leib Talmon. This is a form of “political Messianism” (another Talmon coinage) that must be distinguished from quaint old liberal democracy. Indeed, while the burden of this essay is to consider the place of the rule of law in an age of upheaval, it would be as apt to speak of the role of law. For what we will experience as “law” will be very different depending on which variety of democracy remains when the upheaval’s dust has settled.

The totalitarian democratic school, Talmon instructed, “is based upon the assumption of a sole and exclusive truth in politics.” Liberal democracy, by contrast, “assumes politics to be a matter of trial and error.” It takes human beings as basically good but incorrigibly fallible, and sees their political systems as just another pragmatic contrivance in lives that for the most part are lived “altogether outside the sphere of politics.” To the contrary, the avatars of totalitarian democracy maintain that they have arrived at a sole and exclusive truth. Consequently, the personal becomes the political. The car you drive, the clothes you wear, and the movies you watch—it all becomes, as President Barack Obama is fond of saying, a “teachable moment.” Politics is not on the sideline; it is the juggernaut that perfects mankind in accordance with the totalitarian truth. Law is the principal instrument by which this overwhelming force is wielded.

As such, law manifests the central contradiction of political Messianism. Totalitarian democrats, also known as “progressives,” have feigned homage to the centrality of freedom since the French Revolution. But whereas the conservative (i.e., the classic, Burkean “liberal”) finds the essence of freedom in what Talmon described as “spontaneity and the absence of coercion,” progressives like Justice Ginsburg and President Barack Obama “believe it to be realized only in the pursuit and attainment of an absolute collective purpose.”

Thus, the circle that cannot be squared: Even if we assume for the sake of argument that totalitarian democrats are well-intentioned—that their quest for social justice, their “absolute collective purpose,” is not merely a thin veneer for the pursuit of raw power—human freedom is not compatible with an exclusive pattern of social existence. Thinking that it is leads to cognitive dissonance of the Jean-Jacques Rousseau variety. Rousseau was the seminal totalitarian democrat who thought that man must “be forced to be free” because liberty “tacitly includes the undertaking, which alone can give force to [the social compact], that whoever refuses to obey the general will shall be compelled to do so by the whole body” of society.

How fitting, then that Justice Ginsburg chose Cairo, ground-zero of the “Arab Spring,” as the setting for her speech. Even as she uttered words to consign America’s fundamental law to the ash heap, Egypt’s triumphant Islamic supremacists were in the process of winning 80 percent of the seats in the new parliament. Their first major task will be the drafting of a new constitution—which is why Justice Ginsburg was asked to ruminate about America’s in the first place. Only one thing is certain about the constitution the Muslim Brotherhood and its Islamist coalition partners will establish: Section Two of the current constitution, which makes Islam’s repressive sharia supreme, will remain sacrosanct and be given real teeth. Ginsburg thinks our two-hundred-and-thirty-years-old Constitution is outdated, but at fourteen-hundred years old and counting, Islam’s totalitarian legal code is practically primeval—and yet, here it is born anew. After all, it serves precisely the function that law serves in totalitarian democracy: It suppresses free expression, free will, and volition. Conformity eventually becomes “free choice” because it is the only available alternative. As Talmon put it, addressing the tension between freedom and the progressive vision:

This difficulty could only be resolved by thinking not in terms of men as they are, but as they were meant to be, and would be, given the proper conditions. In so far as they are at variance with the absolute ideal they can be ignored, coerced or intimidated into conforming without any real violation of the democratic principle being involved. In the proper conditions, it is held, the conflict between spontaneity and duty would disappear, and with it the need for coercion. The practical question is, of course, whether constraint will disappear because all have learned to act in harmony, or because all opponents have been eliminated.

Islam, we are tirelessly reminded by its apologists citing Sura 2:256, prohibits compulsion in matters of religion. We need, however, to read the sharia fine-print. True, Islam will not force you to become a believer—at least not officially. It has no compunction, however, about imposing what Talmon would call “the proper conditions”—the sharia system, which, in fact, assumes the presence in the caliphate of non-believers, whose subjugation has a sobering in terrorem effect (and whose obligatory poll tax promotes the sharia state’s fiscal health). The concept is that with enough coercion, there will eventually be no need for coercion: everyone, of his own accord, will come to the good sense of becoming a Muslim—all other alternatives having been dhimmified into desuetude.

Post–World War II, “all the constitution writing” so admired by Justice Ginsburg for its promotion of human rights has become totalitarian democracy’s cognate version of social engineering. It seeks to create the proper conditions that might mold us into what progressives think we are meant to be. The wellspring of this rights revolution is “international humanitarian law,” a now bulging corpus of bien pensant pieties.

The global human rights movement represents over half a century’s erosion of first principles: that nations are sovereign; that international standards may not be applied to them absent their consent; and that treaties are political agreements between national governments, not banquets of individual and largely redistributive “rights” that citizens may enforce judicially against national governments. This regression, from the venerable “Law of Nations” enshrined in our Constitution to today’s amorphous international humanitarian law mirrors the ongoing contortion of domestic “rights” from freedom-preserving safeguards enjoyed by all citizens against government into freedom-killing intrusions into private life by government for the benefit of some citizens over others.

The “Law of Nations,” derived from antiquity’s jus gentiumprinciple, was invoked by ancient Rome when the jus civile, the law applied to citizens, was inapposite. A bow to natural law, the principle recognized that basic strictures honored by diverse peoples across the empire must be grounded in human reason. This was the framers’ classic meaning in empowering Congress to proscribe offenses against the Law of Nations. As construed by the English jurist William Blackstone, the grant was exceedingly narrow, relating only to piracy and the protection of diplomats.

Two centuries later, however, seizing on the previously moribund Alien Torts Act enacted in 1789 by the first Congress, the federal courts began expanding the doctrine to meddle in the affairs of other countries—for example, entertaining a lawsuit by Paraguayan victims tortured by Paraguayan officials in Paraguay. Today’s judges rationalize that conduct should be actionable if, in their estimation, it transgresses “definable, universal, and obligatory norms.” As night follows day, the busybody jurists of other nations reciprocate, claiming “universal jurisdiction” to hound former American government officials with “war crimes” investigations over their execution of U.S. policy.

The Law of Nations is not to be confused (which is to say, it is forever confused) with “international law.” As George Mason University’s Jeremy Rabkin explains, the latter is a broader concept, based on the mutuality of obligations between consenting sovereigns: “a law that was entirely between nations, rather than reaching into their internal affairs.” The simplest iteration is the written treaty.

The Constitution makes treaties the supreme law of the land, provided they follow a fairly arduous ratification procedure: presidential agreement approved by two-thirds of the Senate. But nothing about the “rule of law” is ever simple for long. Once ratified, a treaty has the same legal force as a statute—or does it? In theory, a statute cannot override the Constitution, but in an obscure 1920 case, the Supreme Court held that, by striking down a treaty with Great Britain that regulated the hunting of migratory birds, the federal government effectively preempted the laws of Missouri—something that federalism and the separation-of-powers principle barred Congress from doing, bird hunting having always been a matter of sovereign state control. So, could Leviathan, by making a treaty with, say, Mexico, degrade or eviscerate other powers our allegedly outdated Constitution reserves to the states or the people? What does one suppose Justice Ginsburg would say?

The question is not idle. Treaty writing has exploded since World War II. Reeling from the unprecedented carnage, victorious nations undertook to prohibit war, or at least regulate it out of existence, convincing themselves that human nature could be altered by parchment. This was an irony coming from the generation that had endured a hellacious war precisely because it realized there were worse evils, like Fascism—a generation that watched Nazi atrocities give way to Soviet tyranny. Beyond the Geneva Conventions, the post-war era gave birth to the nascent United Nations’ 1948 Universal Declaration of Human Rights.

To this day, the Declaration animates the rights revolution Justice Ginsburg now heralds. Midwifed by Eleanor Roosevelt, it proclaimed us all as a single “human family,” collectively responsible to guarantee each other not just life, liberty, and property but personal security, freedom from torture, slavery, and arbitrary arrest, equality before the law, travel and asylum, employment with “just and favourable compensation,” education, healthcare, food, clothing, housing, leisure time, and on and on. Today, the utopian world envisioned by the Declaration lives on in the economically sclerotic and unsustainable nations of continental Europe.

For all its dreamy rhetoric, the Declaration is merely hortatory, a tocsin, not a treaty. Moreover, the cold, hard fact that we are so not one big happy human family inevitably arrived in the form of an aggrieved Muslim response: the 1990 Declaration of Human Rights in Islam, which advocates the global hegemony of sharia. Nevertheless, numerous treaties were weaved from the original Declaration’s nostrums. The two most prominent, by way of the United Nations, are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The former hopes to forbid degrading treatment, hate speech, advocacy of war, unequal burdens in child-rearing, and capital punishment (a later add-on). The latter is a progressive wish-list that envisions government-controlled economic sectors, comparative worth compensation, a mandate to end hunger, and universal healthcare (perhaps galactic healthcare was too modest). The torrent of human rights treaties eventually added conventions prohibiting discrimination against women, racial discrimination, torture, and cruel, inhuman, and degrading treatment, as well as conventions promoting the rights of migrant workers, the “rights of the child,” and so on.

For the most part, the authoritarian and redistributive components of these monstrosities would stand little chance of being enacted into domestic law by Congress. Knowing that, presidents—especially those of a Leftist orientation—often play a cynical game. They sign on to the document as a show of internationalist solidarity but do not press for its ratification to avoid political damage at home. Who, after all, wants to be labeled as an opponent of such treacle as “the rights of the child”? And yet, who in America wants to be accountable for seeking to nationalize education, grant children rights of action against their parents, and, according to the drafting committee, require the criminalization of all corporal punishment? Justice Ginsburg’s patron, President Bill Clinton, not only signed, but helped draft this convention. With even Somalia on board, it has become a source of no small embarrassment to President Obama that the United States is the only country on earth (besides the newly minted South Sudan) to refuse its ratification.

Alternatively, some human rights treaties do finally get ratified, but only after the Senate lards them with sweeping reservations and caveats. The UN Convention Against Torture is an example: while a government with weighty security responsibilities does not want to be seen as pro-torture, neither can it afford to endorse such inscrutably vague terms as a prohibition on “degrading treatment” (many Muslim men, for instance, find it degrading to be interrogated by a female investigator). So the UNCAT was ratified with the proviso that, other than torture—which is controlled by a federal statute—the “cruel, inhuman and degrading” terms do not proscribe anything not already forbidden by the Constitution.

The palpable objective of these precautions is to enable practical politicians to nullify lunatic treaties while ostensibly endorsing both the ideal of “human rights” and the illusion of an “international community”—each immensely popular among progressive academics and their media echo-chamber. The Constitution was once our insurance against the consequences of these shenanigans: absent clear, unconditional ratification, we could not be saddled with bad treaty terms even if presidents made a show of embracing them. This is no longer the case, though. The transnational Left, spearheaded by judges, law professors, bar associations, NGOs, and international bureaucrats, has devised several stratagems for defeating the Constitution’s preference for American self-determination over foreign consensus.

The simplest of these devices is the “executive agreement,” a favorite of presidents across the ideological divide. To avoid ratification disputes, presidents make deals with their counterparts in other nations, maintaining that their plenary authority over foreign affairs permits this autocratic streamlining. It also, they insist, dictates compliance at home, even if that means riding roughshod over both the constitutional check of Congress and the constitutional prerogatives of states and citizens. There is today no shortage of politicians, even self-avowed “conservatives,” who urge that national security, or at least national honor, requires rallying behind the commander-in-chief, regardless of the fall-out.

Still, executive agreements can at least be seen, grasped, and theoretically undone by straightforward legislation. Far more troublesome is “customary” international law, which is not easily grasped because it is forever evolving and forever breaking with its own bedrock tenet of sovereign consent. This species of law is referred to as “custom” because there is no express agreement; abstract principles are simply deemed to have transmogrified into binding law once they achieve some mystical degree of claimed consensus. Deemed by whom, and based on what consensus? These are the questions, but the answers are elusive. What is “customary” turns out to be very much in the eye of the beholder—invariably, a progressive party, organization, or court desirous of radiating its statist predilections with the majesty of “law.”

This is not to pooh-pooh the whole idea of custom. That some deeply rooted customs achieve nigh-global consensus is beyond a doubt. Were it not patently imperative that a nation’s emissaries be given safe conduct in foreign lands and were pirates on the high seas not regarded as hostis humani generis (the enemy of humanity), there would be no foreign commerce to speak of—hence, the Law of Nations recognized by the framers. To take another example, the “laws and customs of war” were developed over centuries of international practice—limiting legitimate combat to sovereign states; proscribing intentional or disproportionate attacks against civilians; and requiring soldiers to identify themselves as such (wearing uniforms, carrying their arms openly, etc.).

Back when international understandings were not typically memorialized on paper, these truly were time-honored norms, basic and civilizing. It is unsurprising, then, that even after the modern spate of multilateral treaties commenced in the nineteenth century, it became, well, customary to insert the so-called “Martens Clause” (from the Hague Convention of 1899), stipulating that, notwithstanding the reduction of extensive agreements to writing, “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.”

But that was before the ascendancy of the Lawyer Left. Once the rights revolution took hold, terms like the “laws of humanity” and the “public conscience” gave cavernous maneuvering room to progressives who see law as their social-justice cudgel. They play the “customary law” game as follows: Some law is written and some is unspoken but widely accepted. As we’ve seen, countries may decline to adopt the written law by refusing to join treaties, signing but declining to ratify them, or freighting ratification with caveats, as the United States is wont to do when treaty terms against, say, free expression, gun ownership, or the death penalty run afoul of the Constitution. Yet, once a written treaty is adopted by a critical mass of countries over a period of years, progressives contend that it has been subsumed into customary law. This, they assert, means that even countries that have never consented are now obliged to submit to the treaty terms, as originally written by the international community’s left-leaning lawyers, not as qualified by ratification caveats.

Thus, for example, does the Supreme Court circumvent the Constitution’s treaty-ratification procedure by citing unratified treaties. In 2010, for example, Justice Anthony Kennedy cited the Convention on the Rights of the Child in invalidating a Florida law that permitted a minor to be sentenced to life imprisonment for a non-homicide offense. Justice Kennedy is the centrist “swing justice” who, like Justice Ginsburg and the Court’s three other reliable Leftists, trends transnational-progressive in human rights cases. He rationalized that the Eighth Amendment bar against cruel and unusual punishment had expanded to include the provisions of the unratified treaty and other indicia of global decency norms—“global” and “norms” evidently excluding the law and practices actually followed in land masses east, west, and south of the Euro Zone sliver.

Worse, in elevating their sensibilities over democratic self-determination, customary law enthusiasts do not limit themselves to treaty terms that have never been ratified. Rather, as Adam Roberts and Richard Guelff detail in their essential treatise, Documents on the Laws of War, customary law is also informed by, among other things: (a) diplomatic, political, and military behavior by states (including their official statements, court decisions, legislation, and administrative decrees); (b) the judicial decisions of international tribunals such as the United Nations International Court of Justice (the pretentiously self-styled “World Court” which, for example, ruled in 2004 that Israel’s security fence, a passive security measure that reduced Palestinian suicide bombing attacks by over 90 percent, somehow violated international law); (c) the International Criminal Court (which claims jurisdiction over the United States despite our refusal to join); (d) such ad hoc tribunals as those established at Nuremburg and Tokyo after World War II, and after the genocides in Rwanda and Yugoslavia in the mid–1990s; (e) treatises and other writings by international law experts interpreting treaties and customs; (f) military manuals; (g) the proceedings of the United Nations and its various components (which tend to be rabidly anti-Israeli and anti-American); and (h) interpretive publications and conventions produced by such influential (and reliably progressive) non-governmental organizations as the International Committee of the Red Cross, Amnesty International, and Human Rights Watch.

On the international stage, human rights revolutionaries do not content themselves with inventing law out of thin air and the minutes of progressive gab-fests. They have perverted the very idea of the treaty, and thus of the point of having international law at all.

Since 1648, when the Treaty of Westphalia for the most part ended a century of war in Europe, the sovereign nation-state has been the foundation of the international order. Law is essentially a domestic affair. Treaties are political agreements between sovereigns, and violations of them are the stuff of diplomacy, which can run the gamut from compromise to appeasement to economic sanctions to war. Judicial processes may not be imposed on sovereigns without their consent, either in the courts of another nation or in international tribunals.

The human rights revolution seeks to cataclysmically change these assumptions. Transnational progressives are post-sovereign. They see nation-states like they see the U.S. Constitution: as obsolete. Theirs is not a world—like the real one—in which order is kept by the assurance that sovereigns will pursue their interests and use force as necessary to maintain security. It is a mirage: a global legal order overseen by supranational agencies and managed by courts, whose writs will be enforced by—er, well, never mind. Enforcement will be unnecessary in a world devoted to the rule of law, meaning all that old-fashioned military spending can be diverted to healthcare, retirement security, education, housing, employment, and recreation.

In such a world, treaties are not sovereign-to-sovereign agreements. They are repositories of rights that run to the individual, who may enforce them in court. That the treaties would never have been entertained in the first place if that were the case—that there would be no Geneva Conventions had Harry Truman, Dwight Eisenhower, and the post-war Senate understood that al Qaeda could one day use them to put the United States on trial in our own courts over the manner in which we wage a war that the terrorists started—is beside the point for progressives. Professor Rabkin observes that this is a radical departure: until recently, “talk of an ‘international law of human rights’ would have seemed . . . oxymoronic.” International law used to mean that sovereigns would protest the mistreatment of their own citizens in foreign territory. But the central conceit of “human rights law”—namely, that a growing body of rights and privileges “apply to human beings, as such” and may be judicially enforced by them, even against their own governments, even if their fellow citizens have not consented—would have been thought absurd.

So what is the end game? When acolytes of totalitarian democracy gush, as Justice Ginsburg did, over the foreign embrace of “basic human rights,” they are celebrating a radical transformation not just of international law but also of what a “right” is.

In 2001, Illinois State Senator Barack Obama gave an interview to Chicago Public Radio in which he lamented the timorousness of the Warren Court. Now, most Americans remember the Supremes of the Sixties and Seventies as a rather revolutionary bunch—blazing the trail on abortion, the rights of the criminal, and today’s imperial judiciary. To Obama, though, they had flinched. They had failed to confront “the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.”

It was an early glimpse of the change agent who, as a presidential candidate seven years later, would admonish an ordinary Ohioan named Joe Wurzelbacher, now known to America as “Joe the Plumber,” that social progress could come only when government “spread the wealth around.” The Warren Court, Obama explained back in 2001, failed to “break free from the essential constraints that were placed by the founding fathers in the Constitution.” Instead, Obama complained, the justices clung to the hoary construction of the Constitution as “a charter of negative liberties,” one that says only what government “can’t do to you.” Obama explained that real economic justice demands the positivecase: what government “must do on your behalf.”

This philosophy is a reprise of what Jonah Goldberg elegantly calls the “apotheosis of liberal aspirations.” It first surfaced in President Franklin D. Roosevelt’s 1944 proposal of a “Second Bill of Rights,” a mandate that government construct “a new basis of security and prosperity.” The new guarantees—which, not coincidentally, also found their way into Mrs. Roosevelt’s Universal Declaration of Human Rights—would include “a useful and remunerative job,” “a decent home,” “adequate medical care and the opportunity to achieve and enjoy good health,” “adequate protection from the economic fears of old age, sickness, accident, and unemployment,” and a “good education.”

This is the dream of totalitarian democracy, and Obama hopes to be its political Messiah. Law is to be the principal tool for achieving it. Politically, it cannot be done: the cost would be too prohibitive even if a rising tide of citizens were not already growing restive over the debt crisis that Washington blithely ignores. Thus, the Left’s reliance on law: Americans like to see themselves as law-abiding—which is why politicians lace their rhetoric with allusions to the “rule of law” though they exhibit scant allegiance to the law in their own machinations. Americans are apt to abide even that which they deeply resent if they come to believe the law requires it.

The sad irony is that the inversion of rights from safeguards to entitlements is a profound betrayal of our fundamental law. The political commentator Mark Levin has explained it well:

This is tyranny’s disguise. These are not rights. They are the Statist’s false promises of utopianism, which the Statist uses to justify all trespasses on the individual’s private property. Liberty and private property go hand in hand. By dominating one, the Statist dominates both, for if the individual cannot keep or dispose of the value he creates by his own intellectual and/or physical labor, he exists to serve the state. The “Second Bill of Rights” and its legal and policy progeny require the individual to surrender control of his fate to the government.

For the framers, government was a necessary evil. It was required for a free people’s collective security but, if insufficiently checked, it was guaranteed to devour liberty. The purpose of the Constitution was not to make the positive case for government. The case for government is the case for submission—submission to, as Talmon put it, the “sole and exclusive truth,” the progressives’ “absolute collective purpose,” their “proper conditions” for making men not what they are but what “they were meant to be.”

In stark contrast, the Constitution is the positive case for freedom—real freedom, not freedom in the sense (actually, the nonsense) of Rousseau, the Islamists, and totalitarian democracy, in which the individual complies because a coercive environment leaves him with no other options. Freedom cannot exist without order, and thus implies some measure of government. It is, however, a limited government, vested with only the powers expressly enumerated in the law of the land, our Constitution. As the framers knew, a government that strays beyond those powers is necessarily treading on freedom’s territory. It is certain to erode the very “Blessings of Liberty” the Constitution was designed to secure. Freedom is our protection from that kind of government.

There is a positive argument to be made for government, and the Constitution does not ignore it. It is eloquently stated in the document’s opening lines, which enjoin government to establish justice and protect national security. These injunctions are vital: there is no liberty without them. But they do not involve social engineering or the picking of winners and losers. These guarantees, instead, are for everyone, uniformly: Government must “provide for the common defense” and “promote the general welfare.” The Blessings of Liberty are to be secured “to ourselves and to our posterity”—not to yourself at the expense of my posterity.

We are in an age of upheaval, and what becomes of our law will go a long way toward determining how it ends. In a free society such as ours, grounded in a culture of ordered liberty, law should not be a didactic force. It undergirds economic and social life as it is already lived, reflecting the society’s values rather than instructing the society on what to think and how to live. But today’s progressive legal elites would have it another way. To them, the “rule of law” is code for a “social justice” crusade in which the courts, government bureaucracies, and international tribunals replace democratic self-determination with their sole and exclusive truth. If the progressives get their way, upheaval will not yield utopia. It will yield totalitarianism.