8 Greatness of Constitution

The Greatness of the American Constitution, Part 8: A Critique of Gary North’s Anti-Constitutionalism

By Vern Crisler

Copyright, 2007

Rough Draft

1.  Introduction to the Constitution: Substantive or Procedural?

2.  North’s Objectivism: the Revival of Pharisaism

3.  The Articles of Confederation: A Halfway Covenant?

4.  Was the Constitutional Convention a Coup?

5.  The Greatness of the U.S. Constitution

1.  Introduction to the Constitution: Substantive or Procedural?

Immanuel Kant theorized that the problem of establishing a state can be solved “even for a nation of devils, provided they have sense….”[1]  Kant accepted Hobbes’ belief that the state of nature was one of war, and from this argued that a republican constitution brought men out of the state of war into a state of peace.  Locke would not have placed such a burden upon a constitution since he believed that a state of nature did not always mean a state of war.  Thus, for Locke, men already lived under natural morality or natural law prior to the formation of a constitution, and the purpose of the latter was not to rescue men from a state of war and immorality but to better secure life, liberty, and property against the inconveniences of the natural state.

Kant denied, however, that the state of peace was brought about by “inner morality” and rested it entirely on the “mechanism of nature, with its selfish propensities which naturally counteract each other” and can be “employed by reason” as a means for achieving peace.[2]  For the most part, the American founders would not have accepted any denigration of morality or reason as essential to wise government.  Recall the words of George Washington in his Farewell Address of 1796: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.  In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.”

For Washington, the state could only survive on the pillars of religion and morality, which is to say, it could not run on automatic.  It is true that the founders set up a government that provided “mechanical” means for limitations on evil consequences, i.e., checks and balances, but this was not enough in their view.  The state could not survive without the well-springs of morality, and if the people lost their character, i.e., their religion and morality, republican government was in peril.  The checks and balances of government were meant only to check a minority of devils (i.e., a faction), not a majority of them.

Gary North appears to have recognized some of this in his discussion of the 1973 Supreme Court decision legalizing abortion.  He says it was based upon a “Court-invented Constitutional guarantee of privacy: woman and physician.  State civil sanctions could no longer be brought against this class of murderers….”[3]  North infers from this that “The procedural limits of the Constitution proved to be no safeguard from the substantive apostasy of the humanists who dominated politics in the twentieth century.”[4]  But is this not simply a reaffirmation of Washington’s point, that government cannot work without religion and morality?  While the Constitution can limit some of the damage caused by a nation of devils, it cannot wholly limit it, or limit it for long.  Thus, decisions such as Roe v. Wade (including a prior “privacy” decision that paved the way for Roe) are inevitable when a nation’s character — its religion and morality — is in decline.  No Constitution — trinitarian oath or not — can save a people who are bent on destruction.

North, however, appears to believe that this decline is not in spite of, but because of the Constitution.  He says that “the U.S. Constitution is judicially anti-Chrisitan.”[5]  In this connection, North criticized R. J. Rushdoony’s point that the Constitution “is not a moral code,” and that it “does not give us a substantive morality.”[6]  Instead, says Rushdoony, the Constitution gave us a “procedural morality.”  North asks, “What if judicial procedure is not religiously neutral?[7]

According to North, the “Framers at the Constitutional Convention issued a death warrant against Christianity. . . . The death sentence was officially delivered by the Fourteenth Amendment.”[8]  We will see later that this use of the Fourteenth Amended to “incorporate” the Bill of Rights from the federal level to the State level is a spurious twentieth-century doctrine.  However, even if it were a valid interpretation, it would still not provide a justification for the abortion decision, nor subsequent decisions regarding substantive morality.

The Constitution is not entirely devoid of substantive morality or substantive law.  For instance, it gives Congress the power to declare war.  War, if anything, requires moral discernment on the part of those declaring the causes for engagement in hostilities.  In addition, the Constitution in discussing the removal of the President from office refers to treason, bribery, or other high crimes and misdemeanors, these requiring moral discernment on the part of the Senators.  Treason and bribery were actual cases of the violation of substantive morality, whereas high crimes and misdemeanors could cover other infractions of substantive morality that were not of immediate threat to the continuance of the state.  Further, Article I refers to piracies and felonies and offences against the law of nations, which again require some minimum of moral discernment from Congress.  Treason is punishable only on the testimony of at least two witnesses — a direct borrowing from the biblical requirement of objectivity or inter-subjectivity in criminal proceedings (Deut. 19:15).

In other words, the Constitution assumes the existence of a prior moral and legal order, and without this assumption, some aspects of the Constitution would not make much sense.  Nevertheless, it recognizes a difference between itself and legal codes, for in Article VI, there is a distinction between the Constitution and the laws of the United States “pursuant thereof.”  Additionally, if the Senate receives impeachments, it has the power to remove the officers, including the president, from office, but cannot indict them.  Such parties removed from office are subject to indictment, trial, and punishment according to law within the regular court system, a clear separation between procedural and substantive processes.

North believes the Constitution’s procedural neutrality led to substantive immorality (the abortion decision) and to anti-Christianity.  In fact, North thinks the distinction between ethics and procedure is “a basic dualism of all humanistic thought.”[9]  How so?  Aren’t the Ten Commandments different in kind from the rules of chess?  As proof of his claim, North cites his essay on Max Weber from the book Foundations of Christian Scholarship.[10]  From North’s discussion, it appears that Weber is discussing law that is universal and rational (formal law) as against law that was based on merely traditional grounds (substantive law).  The latter was concrete or particular rather than universal, and was therefore often arbitrary and non-rational.  The use of the term “substantive” to describe this latter type of law is unfortunate, for the antonym for “formal” is “informal,” a term that conveys a better idea of what Weber was talking about, e.g., something spur-of-the-moment, something unpredictable, something changeable.  Weber was not just talking about a simple dualism between ethics and procedure, but about the methodology of decision-making in the juridical field.  Was it based on traditional morals or on rational grounds?

Weber also discussed formal rationality in a capitalist system of production, where the emphasis is on calculation and efficiency.  North tends to run these two discussions together, though they were in fact from different essays, “Science as a Vocation,” and “Politics as a Vocation.”

Critics of Weber have called his philosophy the “Machiavellianism of the steel age” (Mayer) and described it as a phase of dangerous German realpolitik.  In the “Politics” essay, Weber argued that Christians cannot make good politicians.  In this, he was adopting, perhaps without realizing it, Rousseau’s specious claim that Christians cannot make good citizens because “True Christians are made to be slaves.”[11]  Weber interprets politics as an ends-justifies-the-means sphere of life, and Christians are in Weber’s view too saintly to get their hands dirty in politics.  However, Weber can only adopt this conclusion because his premises require an interpretation of Christianity that equates it with anabaptist or pacifist ideas.  To gain some perspective, Calvin used the term “fanatics” to describe those of his own day who thought government was too polluted for Christians to be involved with.

In our opinion, Weber was something of a neo-Luddite.  Just as the old Luddites feared the rationalization of life brought about by technology, so the neo-Luddites fear the rationalization of life brought about by large scale organization of business or government, i.e., bureaucracy.  It did not occur to either group of Luddites that more technology and greater rationalization (e.g., hierarchical organization of industry, cost accounting, etc.) might increase human freedom rather than suppress it.

Excursus:

The fear of rationalization and organization!  This fear and anxiety has a peculiar history in the twentieth century.  It can be seen in the philosopher Heidegger, in the views of ex-Nazis, in the ideas of the post-War French, and also in Francis Fukuyama’s “end-of-history” philosophy.  Heidegger, part anti-American philosopher of Being, and part Nazi enthusiast and informer, spoke with hostility of the man who falls in with the “they” (the crowd), and who is lost in “everydayness.”  Over against technology, calculation, and democracy, Heidegger waits for something like Weber’s charismatic leader, a hidden “advent” that will burst forth out of Germany’s sad situation.[12]  Other ex-Nazis developed a lamentation literature that took Germany’s defeat in World War II as the end of the heroic, as the end of great art and politics.  Arnold Gehlen, a social psychologist during the Nazi regime, said that we have “arrived at posthistory….”[13]  In Gehlen’s view, America had destroyed the German spirit, and replaced it with a modern society of technological rationality and bureaucracy, which resulted in mediocre mass culture.

French intellectuals of the 1950s and 60s, heavily influenced by Heidegger and Marxism, sounded a similar note, even going beyond moral equivalency.  “The Yankee,” says Louis Aragon, “more arrogant than the Nazi iconoclast, substitutes the machine for the poet, Coca-Cola for poetry, American advertising for La Legende des siecles,[14] the mass-manufactured car for the genius, the Ford for Victor Hugo!”  Albert Camus criticized Americans for their “worship of technology” and for their radio and movies.  Philosophers Sartre and de Beauvoir, among others, criticized America’s supposed conformism and consumerism.  To counteract the obvious affluence and happiness of the average American, French intellectuals of the left (and there is virtually no other kind) were forced to initiate a process of “unmasking” — where it had to be proven that Americans were really, deep down, a joyless lot, who were actually lonely individuals caught up in mass culture.  From our perspective today, the views of French leftists were little short of reactionary.  They disliked our snack bars, supermarkets, automatic washing machines, three bedroom-two bath houses, our silverware, large refrigerators, big stoves, sinks, new curtains, and spotless kitchens.  Nor did they like our movie theaters, vending machines, bars and cocktail lounges, drugstores, television sets, bowling alleys, ham sandwiches; nor our ice cream, paperback books, lounge chairs, or pipe racks.[15]

France’s ignorance of America would be dreadfully pathetic if it weren’t so laughable, but it is mainly based on the idea among French intellectuals that the cultivated European (the French intellectual) can be placed over against the “mechanical man” (the American).  This French snobbishness goes back at the least to the 18th century when one French historian, the Abbé Raynal, wrote his A Philosophical and Political History of the Settlements and Trade of Europeans in the Two Indies, 1770.  In this book, he claimed that the English settlers of North America had “visibly degenerated.”  This was during a period of time when America produced men who managed to defeat the British empire, the strongest nation on the earth.  It was also a time in which America produced some of the greatest leaders and statesmen in history — Washington, Jefferson, Madison, Hamilton, Franklin.  This snobbery was followed to some extent later by Raynal’s countryman, de Tocqueville, a French aristocrat and Catholic who visited America in the early 1800s.  De Tocqueville criticized democracy and equality in American and even accused Americans of having “a depraved taste for equality.”  This sort of thing echoed Raynal’s European bias, as well as Catholic caricatures of Protestantism.  One can also find such anti-American views in the writings of R. J. Rushdoony, who promoted de Tocqueville’s critique of individualism, equating it with social atomism.

Even the less snobbish critic of socialism, Wilhelm Röpke, echoed the French critique of bureaucracy and mass culture to slam America.  In his view, America had too many cars as well as too many people in suburbia just “dropping in.”  America had too much central cooling and heating, and the hospitals were like factories.  Even the living places (apartments?) were mass quarters.  In addition, Americans “spend their Sundays and vacations in masses [at the beach? the fair?], flood the universities, lecture halls, and laboratories in masses, read books and newspapers printed in millions . . . submit, with millions of others, to the same movie, radio, and television programs . . . flock in hundreds of thousands as thrilled spectators to the same sports stadiums. . . .”[16]  Röpke objected to those who call this anxiety about mass culture “intellectual twaddle,” but he did not make a good case against such a characterization.

Francis Fukuyama resurrected Hegelianism and argued in an essay (1989) and in a book The End of History and the Last Man (1992) that the collapse of Communism signaled the final stage of history.  By this he did not mean the end of time or events, but that the world had entered the stage where no other economic or political system would be able to rival Western liberal democracy and technological capitalism.  Because of this, humans had entered the era of the Last Man, a time of centralization, rationalization, and homogenization:

“Agreeing on ends, men would have no large causes for which to fight. . . . A dog is content to sleep in the sun all day provided he is fed, because he is not dissatisfied with what he is. . . . Human life, then, involves a curious paradox: it seems to require injustice, for the struggle against injustice is what calls forth what is highest in man.”[17]

The philosopher Nietzsche had invented the term “the last men” to describe men and women who were petty, satisfied, and non-heroic.  One can almost hear in Fukuyama’s words (“seems to require injustice”) a longing for one of Weber’s charismatic leaders to come on the scene and break up the monotony.  We did not have to wait very long, for an enemy of the Last Men came on the scene in the late 1990s, a Muslim leader named Osama Bin Laden, whose followers on September 11, 2001 ran modern jets into modern buildings, killing around 3000 of these modern-day Last Men.

End of Excursus

The neo-Luddites combine their anxiety of rationalization with a critique of mass culture, usually interlarding some virulent anti-Americanism into the mix.  While we cannot here enter into a long paper on Weber, or a criticism of his philosophy, we should at least point out that his distinction between formal legal rationality and substantive legal rationality reflects his cultural relativism and rejection of natural law.  Leo Strauss, a defender of natural law, made use of an interesting transcendental argument against historicism, and described Weber’s “perspectivalism” as leading to nihilism.[18]  However, in the same volume, Strauss makes the baffling claim that Hobbes — the absolutist! — was the founder of liberalism.[19]  In addition, one should consult Ludwig von Mises’s own book on Bureaucracy, where he rejects stage theories of history, and from his assumption of methodological individualism, argues that bureaucracy is itself a product of individual choices.  Mises saw dangers in bureaucracies, especially in terms of government intervention, but in our view Mises underestimates the correlation of bureaucracy with the requirements of large-scale organization in capitalist society, and he thus fails to see that even profit-driven businesses may require bureaucracies.  They are not always just the product of government interference.

In the face of rationalization Weber could only see the emergence of “specialists without spirit” or the advent of either “wholly new prophets” or a backward look to tradition.

We see nothing of this dualism in Rushdoony’s thought, and the North’s comparison of Rushdoony with Weber is misdirected.  Rushdoony’s distinction between substantive and procedural morality has little to do with any of the above concerns.  North’s own examples of what Weber means by formal legal rationality are Roman law and Medieval canon law.[20]  Thus, his attempt to equate the views of Rushdoony and Weber does not hold up to analysis, and seems more based on their common use of the term “substantive.”  Rushdoony, however, did not mean by “procedural” anything like Weber’s concept of rational legalism.[21]  By procedural, Rushdoony meant operational, much like the rules of a game (such as chess).  He did not mean to deny that that the Constitution was based on fundamental principles, but he distinguished between principles and processes.  Whether North will admit it or not, there is a difference between morals that can damn one’s soul to perdition, and the procedures of Robert’s Rules of Order, whose chief danger, perhaps, might be in boring one to death.

In a way, Weber’s notion of judicial formalism is akin to Kant’s idea that a nation of devils could make a workable government, as long as they were rational.  The government, in this view, works in a mechanical fashion to prevent dangers to the system.  We have seen that Washington would have rejected such an idea.  Similarly, the notion of juridical formalism is supposed to be a kind of rational machine that prevents dangers to the system from arbitrary interference from monarchs or rulers.  Again, the idea is that a nation of devils could work within this formal judicial system, and the answer is the same.  Life is not mechanical, and no matter how universal or abstract or formal a juridical system is, it will not save a system in which the people prefer to be devils.

Parenthetically, we hope in the future to discuss Weber’s theory of the origins of large-scale, rational capitalist organization as based on the religious ideas of Calvinism.  In our opinion, the hypothesis of the “work ethic” is only half of the explanation, for work can only increase capital, not capitalism.  The hypothesis must be combined with another in what might be called the “productivity ethic.”  Productivity means the increase of output by way of a decrease in labor (or material) input.  The discovery of productivity combined with the discovery of work (as opposed to the medieval direction of energy into church matters, holy days, pilgrimages, etc.) helped to produce large scale capitalist enterprise.  George Gilder’s Wealth and Poverty, 1981, despite some conceptual flaws — e.g., business exchange is not the same as charity, cf. Lk. 14:12-14 — has once again called attention to the importance of “the metaphysical capital of human freedom and creativity” that makes up the driving spirit of capitalism.

North has difficulty with Rushdoony’s claim on the Bill Moyers’ interview show that the Constitution cannot save America:  “The Constitution gives us procedural law,” said Rushdoony, “not a substantive morality, so anyone can use the Constitution for good or ill.  So the Constitution gives us a good procedural manual, and is on the whole a very good one.  But it has to be the people as they change and govern themselves; the Constitution cannot save this country.”[22]

North did not like Rushdoony’s statements, and even claimed that Rushdoony’s view led to his “reversing his entire intellectual career . . . including his commitment to Van Til’s presuppositional apologetics, as well as his commitment to biblical law. . . .”[23]  According to North, “. . . Rushdoony said that the Constitution’s procedural morality can be and is legitimately religiously neutral….”  Furthermore, any interest group can adopt the Constitution “to create whatever law-order they choose, without violating the text of the nation’s covenanting document.”  Disagreeing with Rushdoony, North says that “Constitutions are inherently substantive; their ethical foundations are manifested in their procedural stipulations.”[24]

Of course, one could argue that even if the latter point were true, it would not show that the procedures of the U.S. Constitution are anti-Christian.  North’s whole discussion of the correlation of morality and procedure goes up in smoke if he cannot show a relation between Constitutional procedure and anti-Christianity.  Instead, he merely asserts that the U.S. Constitution is anti-Christian.  We will explore this in greater detail in our forthcoming section on the greatness of the Constitution.

Parenthetically, our agreement with Rushdoony as over against North does not mean we accept all of Rushdoony’s ideas about the American Republic.  His claim that the Revolution was a “Protestant feudal restoration” is bizarre, and his claim that American law was essentially “county” law is not sourced, and does not explain why most criminal laws are state laws.  In addition, his idea that the American political system is not based on the views of John Locke or Whig politics is groundless.[25]  Aside from these, however, Rushdoony’s understanding of the Revolution and the Constitution is fairly mainstream, though leaning to a more “conservative” interpretation.  As with North, Rushdoony believes that Constitutionalism “is a form of covenantalism.”[26]  Unfortunately, this appears to widen the term “covenantalism” so much  that just about any fixed or limited government could be a form of covenantalism.  However, Rushdoony at least made the good point that the “stability” and “vitality” of the Constitution requires “character” on the part of the people, and in this he is making the same (anti-Kantian) point that Washington did.  This lack of character — or of what Rushdoony called the “personal covenant” (between God and the individual) — is Rushdoony’s explanation of why the U.S. Constitution cannot very often be imitated:

“Attempts to transport constitutionalism, as to South America, the Mexican Constitution of 1824 (a copy of the U.S. Constitution), and to the African states have resulted in futility.  Without the conception of the personal covenant of grace, the civil covenant and constitution is rootless and quickly invalid.”[27]

North, of course, believes that the Constitution is a covenant—an apostate one in his view — but his discussion is marred by the attempt to squeeze the Constitution into a so-called five-part covenant model.  In the strict sense, the Constitution is not the real covenant or compact between the states, but is rather the “instrument of government” of the compact.  Madison in the Virginia Resolution refers to the Constitution as the “instrument constituting that compact.”  He thus makes a distinction between the compact between the States and the instrument of that compact.  The compact between the States was made at the time of their ratifying conventions and the Constitution is the “instrument” of this compact.

North says that the voters through “state ratifying conventions in 1788, had insisted on retaining numerous powers in the states.”[28]  Of course, this is basic to Lockean contract theory, that the parties transfer some of their rights and also retain some of their rights.  In Madison’s view — contrary to the later Calhoun and Southern apologists for slavery — sovereignty was divided in the Constitution.  It was no longer a unitary sovereignty, but an alienation of sovereignty by the States with respect to national matters.

Interestingly, North undermined his whole theory that the Constitution was set up as an anti-Christian covenant.  John Adams had said: “[I]t can no longer be called in question whether authority in magistrates and obedience of citizens can be grounded on reason, morality, and the Christian religion, without the monkery of priests or the knavery of politicians.”[29]

North takes this to mean that a state can be constructed “without benefit of clergy” or “elected politicians.”  But Adams specifically mentioned that government can be grounded on the Christian religion (along with reason and morality).  In other words, he clearly distinguished the Christian religion from the monkery of priests and the knavery of politicians.  North’s whole argument has been that the founders rejected the Christian religion in the formation of their government, but this quotation from Adams shows rather the opposite.

2.  North’s Objectivism: the Revival of Pharisaism

In the previous discussion of the influence of the Tyler group (primarily James B. Jordan), it was noted that North holds to the “Federal Vision” model of ecclesiology.  This ecclesiology is essentially totalitarian due to its “raging objectivism.”  Presumably, this would mean that certain Episcopalian churches could not sever ties with the larger denomination even if the latter allows the ordination of a homosexual.  The father always backs up the mother even when she is wrong, and besides, in this view, thinking for oneself is “rot.”  Indeed, so “objective” does North’s ecclesiology become that he is willing to say that if Christians do not attend church, or participate in communion, they cannot be counted as Christians.

North, however, is selective in his objectivity.  The fact that 50 of the 55 attendees of the Constitutional convention were church members is not enough for North.  Even though they were members in good standing in their churches, North intimates that we should question their Christianity.[30]  Washington’s infrequent communion, says North, should have been grounds for excommunication.  But what happens to “objectivism” in this case?  Washington’s church did not excommunicate him, and therefore in terms of North’s ecclesiastical objectivism, he has no right to question the “public legitimizing of Washington as a Christian.”  Apparently North has decretal insight when he is attacking Washington or other framers, but only covenantal insight when defending the British Empire.[31]

T. E. Wilder criticized North in a similar connection, noting that Hitler was a member in good standing in the Roman Catholic denomination: “Adolf Hitler and Martin Heidegger were Roman Catholics to their dying day and hordes of mafiosi were and are members of the Roman Church.”[32]  Presumably, North would have to accept that Hitler went to heaven, and German believers who refused to go to church anymore under the Nazi regime went to hell.  Thus, North’s objectivism leads to ecclesiastical naiveté on the one hand or rank Pharisaism on the other.  The Bible says the Pharisees “trusted in themselves that they were righteous and despised others” (Lk. 18:9).  The Pharisees were institutional objectivists, too, and thought they were sons of Abraham, even though Christ said they were sons of the devil.  Can such distinctions, however, be made in the light of North’s ecclesiology?  Apparently, as long as men proudly display their church-membership, they are fine in North’s book, unless, of course, they were framers of the U.S. Constitution.

3.  The Articles of Confederation: A Halfway Covenant?

North’s presumptuousness with regard to the framers is bad enough, but he also applies his hyper-objectivist notions to the basic governmental documents of the United States, and in such a way that would baffle most historians who are unaware of his ecclesiastical views.  North, for instance, argues that the “Articles of Confederation” served as a “halfway civil covenant.”[33]  North is here making an indirect reference to the older Puritan notion of a “halfway covenant.”  Essentially, the halfway covenant was a solution to the problem of mere formalism in religion.

During the 1600s and after, the Puritan colonies were covenantal societies, and membership in the covenant was restricted to those who could claim a conversion experience.  The requirement of a conversion experience — a subjective feeling of inward renewal — was a reaction to what was perceived as the secularization of the church in Anglicanism and Roman Catholicism.  Far too many members of (say) the Church of England were either indifferent to religion, or were leading lives unworthy of saints.  The requirement of a statement of personal regeneration was thus a way to purify the church of nominal Christians—hence, the not so complimentary term “Puritan.”

When the children of the first generation of Puritan parents were born, they were baptized, but unless they could later attest to a conversion experience, they could not partake of communion or become voting members.  Around 1662, after the second generation of Puritans began raising families, controversy arose as to whether their own children could be baptized and have full church privileges.  In answer, a synod of Congregational churches ruled that as long as the second generation professed a conversion experience, they could partake of communion and voting rights, and their children could be baptized.  However, if they could not profess a conversion experience, they could not partake of communion or have voting rights, but their children could still be baptized.  In short, any Christian who could not profess a conversion experience was required to take a half-way covenant oath.  The main thing missing from such a declaration was the description of a subjective conversion experience.

According to North, the Puritan halfway covenant was conceptually the same declaration used by European Calvinist churches, that did not require a conversion experience for anyone to be full members of the church, but only confession of faith, pious living, and partaking of baptism and the Lord’s supper.[34]

Halfway-covenant Calvinists, like their European counterparts, needed only to understand and profess the Christian faith, live unscandalous lives, and “own the covenant,” that is, give themselves and their children over to the Lord, and submit to the government of the church.  Calvinists who professed this in Europe could receive the Lord’s supper, but in America, such Calvinists would not be able to since they could not confess the all-important conversion experience.

Essentially, the halfway covenant was a form of partial church membership — baptism yes, but no communion or voting rights.  Over the years, the halfway covenant resulted in the commonwealth’s settling into a state of equilibrium where one could not tell a Puritan saint from a mere church or parish member.  In effect, it was a return to the quasi-secularization of the Church of England.  Incidentally, this problem only comes about due to adherence to covenant theology or to the practice of infant baptism.  Many churches have solved this problem by adopting the practice of “confirmation,” or else they have become baptists (who do not baptize infants).

In what way does this relate to the Articles of Confederation?  Did the articles allow people to become citizens without a personal conversion experience?  No — the Articles did not have anything to do with church membership.  In what way, then, was it a halfway covenant in the civil realm?  Was it because the Articles appealed to “the Great Governor of the World” rather than to the Trinity?  The document does mention the “year of our Lord” both at the beginning and end of the Articles, similar to the Constitution which mentions the “year of our Lord” at the end.  This is a reference to Jesus, since his birth was used to mark the number of years that had passed to the present.

A little later, North describes the Rev. John Witherspoon, a signer of the Declaration of Independence, and teacher of James Madison, as “a man who defended a halfway covenant philosophy and subsequently pressed for an apostate national covenant.”[35]  What exactly is a “halfway covenant philosophy”?  In North’s view, it apparently means the replacement of “biblical covenantalism” with Locke’s compact theory.  Witherspoon’s philosophy is described as “common sense realism” and apparently, the idea of common principles of political philosophy is regarded as a halfway covenant philosophy.  From what can be gathered from North’s discussion, Witherspoon was entirely orthodox in his theology, so halfway covenant philosophy would not involve a denial of any orthodox doctrines, such as the Trinity.  However, North regards Witherspoon’s “common principles” view as the most “common cultural error” of 18th century Protestantism, and it supposedly led to the breaking of all earlier colonial political covenants.[36]

Finally North provides reasons why the Articles are to be regarded as a halfway covenant.  It is because, even though they did not deny the God of the Bible, neither did they affirm him.  The Articles were an “intermediary step” in the transition between older trinitarian state covenants and the later “apostate” state covenants.[37]

There is some conceptual confusion in North’s use of the term “halfway covenant.”  On the one hand, it is used primarily to describe a governmental document that does not name the Trinity, while on the other it is used to describe a philosophy of rational commonality, and finally it is used to refer to a temporal transitional step between older covenants and newer covenants.  It does not seem to have anything to do with the Puritan idea of the halfway covenant other than the mere term “halfway.”  North is obviously using the term in a derogatory sense, as if one were to say, “This historian of Puritan economic experiments is guilty of halfway scholarship.”  It means something that is not quite up to par.

From our point of view, the Articles are not a halfway civil covenant, nor are they much like biblical covenants.  There is no agreement between a superior power and its vassals (God and man, or king and people).  Nor is God invoked in order to bind the States in covenantal fashion.  Rather God is invoked as the Cause of their coming together and approving the Articles.  The great Governor of the world, says the Articles, is pleased to “incline the hearts” of the legislatures to approve and authorize the ratification of the Articles (after Article XIII.)

The Articles are an instrument of government.  Article I designates the title of the confederacy as “The United States of America.”  Article II is important in that it says that the States retain “sovereignty, freedom, and independence” and all powers not delegated to the United States are retained by the States.  This was incorporated into the Constitution under the 10th Amendment, though with the addition of the “people” as retaining non-delegated power as well.   The Articles go on to describe the powers of the “national” government in matters of treaties, alliances, making war, raising armies and navies, hearing disputes between different States, and so on, i.e., national issues.

Unfortunately, the power of the government under the Articles was extremely weak.  It was not a real government in the way that England had a real government.  The Articles only go so far as to say that the compact was a “firm league of friendship” (Art. III).  Its purpose was to “better secure” mutual friendship among the people of the several States (Art. IV), and was set up for the “more convenient management of the general interests of the united states” (Art. V).  To be sure, the Articles spoke the language of Lockean contract theory, but they left out a crucial element, namely any real power to enforce its measures or determinations.  This would prove nearly disastrous for the Continental army, which usually had to scrape by on scraps because the Congress could not readily supply it with arms or provisions¾and the States and the people were slow in helping out.  It would also lead to the near disintegration of the Union in the years prior to the Constitutional Convention, and its manifest weakness was the primary reason for that meeting.

4.  Was the Constitutional Convention a Coup?

North is so hostile to the Constitution that he refers to the Constitutional Convention as a “coup.”  What is a coup?  In a standard dictionary, a “coup” means a “sudden action taken to obtain power or achieve a desired result.”[38]  The word was originally part of the French term coup d’état (pronounced koo day-tah), meaning “the sudden overthrowing of a government by force or by unconstitutional means.”

The emphasis is on suddenness, a “sudden action” or a “sudden overthrowing.”  There was certainly nothing sudden about the Constitutional Convention (hereafter “Convention”).  It lasted for four months, became widely known thereafter, was under the authority of Congress, and its results were subject to approval or disapproval by the independent and sovereign States.  So why use such a pejorative term to describe the work of the Convention?  Is it because North believes that procedural irregularities are enough to constitute a coup?

It is no doubt true that the Convention exceeded its mandate by offering a Constitution in place of merely revising the Articles of Confederation, but what are we to infer from this?  After all, from the standpoint of the English government, there was nothing “legal” about the Articles of Confederation, the Declaration of Independence, the Continental Congress, or the Stamp Act Congress.  Moreover, from the point of view of the Stuart kings there was nothing legal about the Glorious Revolution, or the English civil wars that removed Charles I, or about Cromwell’s Protectorate.  For the pedantic legalist, no change in government in history is ever lawful.  So what other reason would North have?

Extreme libertarians hate the state in all its forms, so they at least have some consistent grounds for thinking the Convention was illegitimate, that its results were evil, and that the actions of the States in ratifying the Constitution were short-sighted.  Is North an extreme libertarian?  To be consistent, such libertarians would also have to oppose the Articles of Confederation for setting up even a minimal Union, and they would also have to oppose the various governments of the several States making up the Union.  It is unlikely that North goes that far, and in fact he approves of the charters or constitutions of the several States.

In North’s view, the “coup” was not really against the Articles of Confederation, or the Declaration of Independence, or any of the other documents of the Revolutionary era.  Nor was it merely a matter of substituting a national government for a weak alliance between States.  For North the “coup” (and its ratification) was really the overthrow of the “covenant” that had existed between God and the country since Puritan times.  Here is what he says:

“The ratification of the United States Constitution in 1787-88 was not an act of covenant renewal.  It was an act of covenant-breaking: the substitution of a new covenant in the name of a new god. . . . [T]he story of the new American nation: a ‘grand experiment’ in which the God of the Bible was first formally and publicly abandoned by any Western nation.”[39]

In the title of these essays, we have spoken of the dangers of covenant theology, and North is a primary example of it.  His strict version of covenant theology has led him into an extreme hostility to the American Constitution and its framers, enough, in our opinion, to discredit North’s version of covenant theology.  North is also hostile to those who maintain that America was ever a Christian nation, and that all that is needed is to go back to the original intent of the founders.  In his view, such people are self-deceived.  “There is no greater deception,” says North, “than one which continues to deceive the victims, over two centuries after the deed was done.”  Aside from poisoning the well of discourse, what evidence does North have for this?

There is in fact a difference between a society or nation and the government of that society or nation.  The framers believed that it was possible to have a Christian society or nation along with a secular government.  It may seem paradoxical at first, but it was almost a necessity.  There was no majority religion in America, and American society was not dominated by any one branch of Christianity, but had many different groups — Congregationalists, Presbyterians, Lutherans, Baptists, Quakers, and so on, each vying for freedom of doctrine, liturgy, and practice.  There was simply no way that the governments of the colonies and states could go on being strictly intolerant.

This is what Cromwell learned, since his army was made up of different groups within the Christian church.  The only solution in Cromwell’s case was to allow freedom for (Protestant) religions, holding men accountable only for their actions (that is, public morality, e.g., looters or traitors were executed no matter their denomination).  Similarly, in America, toleration grew because of religious diversity.  Unfortunately, Richard Hofstadter attempted to trace the advance of religious freedom to economic motives, showing that he had not entirely escaped the tentacles of the Beardian folly.[40]  He even absurdly credited Charles II as an “instrument” for the furtherance of toleration!  That would be news to the Conventiclers.

So the framers were confronted with a religiously diverse society, but also with the need to establish national unity.  They wanted a weak enough government to prevent the rulers from abusing the peoples’ freedom, but also a strong enough government to prevent the people from abusing their own freedom.  As Madison said, “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”[41]  Our present Constitution reflects this balanced and moderate goal, and within this context, the framers obviously felt it was possible to have a religiously neutral frame of government amidst a religiously non-neutral society.

North admits that the Convention was “authorized by Congress” and that it was required to report its changes to Congress and the States for their agreement and confirmation, respectively.[42]  The “sole and express” purpose was to revise and alter the Articles to render them “adequate” for the “exigencies” of government, and the “preservation of the union.”  It is doubtful that such goals could be achieved with a mere tinkering with the Articles, and this is the point made by Madison.  Further, as Madison argued, the Convention’s work was purely advisory.  Its results had no force of law and could have easily have been tabled or sent back for revisions.  The Convention proposed:

“. . . a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”[43]

In any case, all the States agreed to the procedures for ratification, which indirectly fulfilled the “confirmed by the legislature of every State” clause.  Moreover, most of the States went on to ratify the new Constitution, and the two holdouts eventually ratified within a couple of years.  How can any of this legitimately be described as a coup?  To do so is to substitute rhetoric for reality.

The Convention’s extra-legal recommendations were not without precedent.  Madison says that the Continental Congress (under the Articles) was not an entirely representative institution, and sometimes assumed not only “recommendatory, but . . . operative, powers….”[44]  Interestingly, Madison also appealed to the right of revolution enunciated in the Declaration, that the people have the right to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.”

So in a very real sense, the Convention was a new revolution (not a coup).  It was an alteration of the previous weak alliance in favor of a stronger national government.  It was therefore much like the 17th century Glorious Revolution in England, a bloodless revolution, though in this case there was no need to toss out a king and send for another.  This was not a sudden coup, but was a revolution of the mind that took place over several months, and after intense debate by representatives of the people of the respective States.  Madison compared this right of the people to change the Articles to the same right the people exercised in originally forming the Union against the Crown:

“They [the people] must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness that the States were first united . . . that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several States for establishing the constitutions under which they are now governed.”[45]

The “consent of the governed” was also fulfilled in the State ratifying conventions, and as North admits, the States were Christian states.[46]  He would have it that all of these Christians were self-deceived, and did not understand the “covenantal implications” of their actions.  In our opinion, however, this criticism is both untrue and unfair.  It is not the Constitution that is responsible for modern day judicial usurpations, or for bloated bureaucracy, as North claims.[47]  The Christians at the Convention, and the representatives at the ratifying conventions believed they were setting up an instrument of government that protected their liberty as Christians, not one that destroyed it.  It is highly unlikely that they were deceived about something as important and as fundamental as their own religious freedom.

Much of North’s criticisms of the Constitution were first brought up by the anti-federalists, including the “not legal” argument.  Nevertheless, the latter was not pressed with any great zeal, for the anti-federalists surmised it was subject to an obvious tu quoque, namely that neither their own Revolution nor the Articles of Confederation had been “legal” from the point of view of the Crown.  North has no such worries since he rejects the Articles as a “halfway civil covenant” and also rejects the legitimacy of the Revolution.  Nevertheless, in our opinion, this is simply the price that North has to pay for his covenant theology — his own personal march of folly.

5.  The Greatness of the U.S. Constitution

Aristotle said that the goal was to find not just the best constitution for government, but also the possible, i.e., the best possible constitution.  There were flaws in the U.S. Constitution, the slavery issue, for instance, and the electoral college, which due to the rise of the major parties, does not work as it was intended to.  Moreover, the Constitution said nothing about the right to vote for women, or the right to vote for 18 year olds, and so on.  Doubtless, one might always be able to write a better constitution, perhaps a near perfect constitution, but such a result may be too theoretical or too inflexible.  It would not be ratified by anyone, and even if ratified, one might not be able to live under it.  When one takes Aristotle’s point into account, the U.S. Constitution is the best that has ever been written that was also at the same time politically possible.  That the framers could agree to such a Constitution that would cover so vast a territory, and over so diverse a population, and last as long as it has, through civil war and world war, is a measure of its greatness as the governing charter for the nation.

One person who celebrated the greatness of the U.S. Constitution was Verna Hall, who was well-known among Christians for her books on American history.  Her primary publishing interest was in gathering a great many documents from our colonial and Revolutionary past and compiling them into three volumes of “Christian history.”  Gary North, as a leading defender of anti-constitutionalism in our day, could not let this go by without criticism.

He says he met Hall in 1963 in a conference organized by R. J. Rushdoony on the subject of American history.  He feels it is necessary to mention that she was still a member of Christian Science when she began her American history compilations, and was working for Mildred LeBlond, a teacher in that sect.  The editor of the compilation, Joseph Montgomery, was also a Christian Scientist.  North does admit that Hall left Christian Science at some later point, but claims that Montgomery did not.  Why mention any of this?  Is it not simply an attempt on North’s part to denigrate Hall in the eyes of Christians, who take a dim view of Christian Science?

North points out that Hall’s books “never reached the era of the Convention.”[48]  She published a second volume, titled Consider and Ponder, that covered the Revolution at least until 1777.  North wonders why she never reached the Constitution.  Rather than ascribing it to lack of time or money, or even old age, North claims that Hall could not write a third volume because there was not much Christian history after the war and during the Constitutional period.  “What the documents of the era do show,” says North, “is that after the war ended, Christian influences in the country declined for a decade or more.”[49]

We do not always agree with Hall.  For instance, she believed in a “providential” historiography of America as opposed to a “secular” historiography.[50]  Granted she makes too strong a use of this theological concept of providential control, believing that God answered the prayers of Christian homes in America “to win our independence from the world’s greatest military power of that day.”[51]  Of course, the “world’s greatest military power” was England, a Christian country for all intents and purposes, with an established Christian church, which may well have had Christian homes praying for the opposite outcome.  As we intimated in our discussion of Rousseau, Christians should not be fighting as Christians, especially when the other side is composed of Christians, and this is a primary example of why not.  It is not sound theology or good judgment for Christians to pray that divine wrath should fall on other Christians.

Hall wanted to know why America had gone down the path to socialism.  It came to her after her planned lecture at a local PTA meeting was canceled when the organizers found out she would speak on the religious character of the Declaration and Constitution.  (This was prior to the 1960s.)  She says:

“It seemed to me that this incident revealed a startling fact; that Americans evidently had forgotten the Christian foundation upon which this nation is reared and the importance of its relation to the form of government established by the Constitution.  We as a people, were allowing ourselves to become separated from the keystone of our national structure — our Christian heritage — through such occurrences as had happened at this small school.  By omission, America had deflected into socialism.”[52]

Ironically, Hall shares North’s theory that “each religion has a form of government.”[53]  She, however, used this idea to argue that the U.S. Constitution reflects American’s Christianity, just the opposite of North’s view.  She even mentions the “sacred covenant” of individual freedom and self-government in “all spheres entrusted to its care.”[54]  So it is indeed ironic that Hall shares North’s assumptions, though both arrive at opposite conclusions.

Hall felt that the various Federal bureaus she worked for up to 1947 had only paved the way for socialism.  She resigned from her government work and started a study group dedicated to studying the Constitution in order to show the connection between “Christianity, individual freedom, and local self-government.”  North points out that she had learned much from LeBlond and had taken over LeBlond’s classes at some point, though Hall did not mention this in her books.  The result of these classes was a series of projected volumes on the Christian history of our basic governing documents.  The first two volumes in the series were published, with the first covering the beginnings of Christianity to the American Revolution, and the second covering American history from 1643 down through the Articles of Confederation.  The third volume was meant to discuss the idea of Christian self-government as exemplified in the Constitutional Convention and in the state ratifying conventions.  It does not appear that this third volume was ever published.

North wondered why Hall never finished the third volume, and ascribed it to the supposed non-Christian character of the Constitutional period.  A more likely reason is a lack of time or money.  In fact, it may be that her company remained solvent precisely because Hall did not commit her assets to publishing the third volume.  Perhaps the third volume is in the works, and will be published within a few years.  There are a number of reasons that are more plausible than North’s claim that Christian history stopped during the Constitutional era.

There are number of court cases that give evidence of the Christian character of the nation in the post-Constitutional period, and that the Constitution was never hostile to Christianity, or Christian morality, or even to the various religious establishments of the States.  One could also cite Joseph Story, who said that at the time of the adoption of the Constitution, the general consensus was that Christianity should be encouraged.  “An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”[55]

In sum, then, we believe that Verna Hall was right in celebrating the Constitution.  It may not have been a perfect Constitution, and it admits right up front that it is only trying to establish a “more perfect” union, not an absolutely perfect union, but its greatness as the form of government of America should never be denied by anyone who values liberty and the rule of law.

Next: The Doctrine of Incorporation


[1] Immanuel Kant, To Eternal Peace, 8:366.1

[2] Kant, 8:367.

[3] Gary North, Conspiracy in Philadelphia, p. 126.

[4] North, p. 127.

[5] North, p. 354; emphasis in original.

[6] North, p. 363.

[7] North, p. 363; emphasis in original.

[8] North, pp. 367, 368.

[9] North, p. 369.

[10] Gary North, ed. Foundations of Christian Scholarship, pp. 141-46.

[11] See our discussion of Rousseau at https://vernerable.wordpress.com/politics-history/6-locke-newton/ Appendix, Section 5.

[12] Mark Lilla, The Reckless Mind: Intellectuals In Politics, 2001, pp. 27; 34.

[13] Richard Kuisel, Seducing the French: The Dilemma of Americanization, 1993, p. 41.

[14] Victor Hugo’s poem of history “The Legend of the Ages.”

[15] See Kuisel, for a discussion of these attitudes among French thinkers, pp. 111-123.

[16] Wilhelm Röpke, A Humane Economy: The Social Framework of the Free Market, 1960, pp. 39ff; 41.

[17] Keith Windschuttle, The Killing of History, p. 180.

[18] Leo Strauss, Natural Right and History, 1950, pp. 25; 39-42.

[19] Strauss, p. 182.

[20] North’s review of Weber’s “Protestant Ethic” hypothesis in Journal Of Christian Reconstruction, Vol. 3, No. 1, 1976, pp. 189-90.

[21] North, Conspiracy, p. 372.

[22] “God and Politics: On Earth as It Is in Heaven,” Public Affairs Television, Dec, 23, 1987; quoted in North, Conspiracy, p. 345.  Note: The researchers for this episode met with, inter alios, publisher David Thoburn and this writer, for background, as well as with the former acolyte then later critic of Tyler theology, David Chilton.  It is interesting that these friendly and conscientious researchers spent a great deal of time doing background work on the subject of “reconstructionism” but the constraints of television only allowed a small portion of their work to be shown.  Moyers, of course, is the “ideal type” of a flaming liberal, who was not really interested in reconstructionism except to trash it.  His admissions about the sincerity of the Christian Reconstructionists was probably more the result of his researchers’ honesty than of his own objectivity.

[23] North, p. 370.

[24] North, p. 370.

[25] R. J. Rushdoony, This Independent Republic, 1964, pp. vii; viii; 22.

[26] Rushdoony, p. 43.

[27] Rushdoony, p. 43.

[28] North, p. 107.

[29] North, p. 109.

[30] North, pp. 159, 161.

[31] North, pp. 258; 318; The Federal Vision makes a large deal out of this distinction, arguing that election should be read in light of covenant rather than covenant in light of election.  This is the heart of their objectivism and consequent institutional absolutism and Pharisaism.

[32] T. E. Wilder,  “Ecclesiology: the Achilles Heel of the Federal Vision,” 2004.

[33] North, pp. xiii; 103.

[34] Gary North, Crossed Fingers: How Liberals Captured the Presbyterian Church, “Introduction to Part 2.”

[35] North, p. 17.

[36] North, pp. 18, 19.

[37] North, 104.

[38] Oxford American Dictionary, 1980.

[39] Gary North, p. vii.

[40] Richard Hofstadter, America at 1750: A Social Portrait, 1971, p. 189.

[41] James Madison, The Federalist Papers, 51.

[42] North, p. 149.

[43] Madison, 40.

[44] Madison, 40.

[45] Madison, 40; emphasis in original.

[46] North, p. 186.

[47] North, p. 187.

[48] North, p. 327.

[49] North, p. 328.

[50] Verna Hall, The Christian History of the Constitution of the United States of America, hereafter Christian History; original 1960; bicentennial edition, 1975, p. Ia.

[51] Hall, p. Ib.

[52] Hall, p. II.

[53] Hall, p. III.

[54] Hall, p. IV.

[55] Joseph Story, Commentaries on the Constitution of the United States, 1833.)  Judge Story wrote the Amistad decision that freed African slaves.