(James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.)
The Constitution is not a contract, however, since many view it as such, it will be useful to assume for the sake of argument that it is a contract. Would you sign a contract with a private firm that gave that firm sole power to interpret and enforce the contract? Would you sign a contract with a roofer that, in effect, allowed him to charge you $15,000 and not put a roof on your house? Only a fool would do so, yet, the Constitution is precisely such a sham “contract” as it gives the other party to it sole power to adjudicate any disputes about it. It is yet another nail in the coffin of conservatism that its chief ideological bulwark, constitutionalism, turns out to be a sophisticated hoax!
As if the above flaws were not enough, constitutionalism has other problems insofar as it purports to be a bulwark against progressivism. Surely, many constitutionalists believe that the constitution is a statement of various underlying objective truths about the world, human nature, government and politics. This overlooks the fact that progressives are pragmatists, that is, folks who reject the notion that there is an objective reality outside our minds that we can know and express in words understandable to other people. To cite a constitution to a progressive is like speaking Mandarin to a Martian or English to a wall. It’s a pointless exercise since pragmatists reject the notion of objective truth and are solely interested in the practical consequences of ideas and words. Thus, in the Pork Lawsuit, the five progressive judges in the majority, including two conservative Republicans, no doubt believed that state government must have the tools of economic development to compete with other states and countries that have them. They were oblivious to whether the Constitution of 1846 was true or not. It was, in 2011, no longer practical. The bottom line is that the 90 percent of the public that is progressive, elected progressive governors who appointed progressive judges who gave us a progressive result, the Constitution be damned!