A Restorationist Essay on America’s Constitutional Divide
BY V.A. BARAC
May 20, 2026
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
— James Madison, Federalist No. 51 (1788)
I. THE TWO FREEDOMS
There is a word in the American political vocabulary that is invoked with equal passion by people who want irreconcilably different things. That word is freedom. It appears in the speeches of senators and the signs of protesters, in Supreme Court opinions and late-night campaign rallies, in the preambles of legislation that would expand the size of government and in the manifestos of movements determined to shrink it. Both sides pronounce it with the same fervor. Both claim it as their inheritance. And yet, if you press them on what the word actually means — what it requires, what it forbids, who it protects and from what — the agreement dissolves instantly, and what remains is not a debate but a collision.
On one side stands a vision of freedom as the absence of coercion: the right of the individual to speak without censorship, to worship without interference, to bear arms without registration, to enter into contracts and conduct commerce without bureaucratic permission, and to keep the fruit of one’s labor without confiscation. This is freedom understood as a fence — a boundary that government may not cross. It is the freedom the colonists named when they listed their grievances against the Crown, the freedom Madison encoded in the structure of checks and balances, the freedom Jefferson declared to be an inalienable endowment of the Creator rather than a grant from the state.
On the other side stands a vision of freedom as the presence of conditions: the right to healthcare, to a living wage, to affordable housing, to education, to a retirement secured by the state. This freedom is not a fence but a floor — a guaranteed minimum beneath which no citizen should be allowed to fall. It cannot be achieved through restraint of government; it can only be achieved through the active exercise of government power, through taxation, regulation, and redistribution. Its most famous American articulation came from Franklin D. Roosevelt, who in 1944 proposed a “Second Bill of Rights” premised on the idea that political rights alone are insufficient to guarantee real freedom in an industrial economy.
These two conceptions have ancient philosophical lineages. Scholars call them, respectively, negative liberty and positive liberty — a distinction given its most enduring modern formulation by the philosopher Isaiah Berlin in his 1958 lecture “Two Concepts of Liberty.” Negative liberty asks: what is the area within which the subject is or should be left to do or be what he is able to do or be, without interference by other persons? Positive liberty asks: what, or who, is the source of control or interference that can determine someone to do, or be, this rather than that? The American founding tradition is rooted unambiguously in the negative. The American progressive tradition is rooted, with equal sincerity, in the positive. And the tension between them — unresolved, intensifying, and increasingly expressed in language that each side has weaponized against the other — is the defining constitutional crisis of our time.
This essay makes a specific and unapologetic argument: the American constitutional order was explicitly and deliberately designed around the negative conception of freedom, and the substitution of the positive conception — however well-intentioned — is not an evolution of that order but a departure from it. Recovering the original framework is not an exercise in nostalgia. It is the precondition for any honest resolution of the disputes that are tearing the republic apart.
II. WHAT THE FOUNDERS ACTUALLY BUILT
Read the Bill of Rights — not as a cultural artifact, not as a symbol, but as a structural document — and a pattern becomes unmistakable. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” “The right of the people to keep and bear Arms, shall not be infringed.” “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” “No person shall be deprived of life, liberty, or property, without due process of law.” Every one of the first ten amendments to the Constitution is a prohibition on government action. Not a single one commands government to provide anything. The structure is entirely negative. It is a document not of promises but of restraints.
This was not accidental. Madison, the principal architect of both the Constitution and the Bill of Rights, understood government not as a benevolent provider but as a necessary danger. In Federalist No. 51, he wrote with unsentimental clarity: the very existence of government presupposes that human nature is flawed, that men are not angels, and that power concentrated in any hands — even democratic hands — will tend toward abuse. The Constitution’s elaborate machinery of separated powers, bicameralism, federalism, and enumerated limitations was not designed for efficiency. It was designed for friction. The Founders built a system that would make it difficult to govern, because they believed the greater danger was not insufficient governance but insufficient restraint upon it.
Underlying this architecture is a specific metaphysics of rights — one that the progressive tradition has systematically eroded without always acknowledging the erosion. Rights, in the founding philosophy, are not creations of government. They are pre-political. They inhere in persons by virtue of their humanity — they are, as the Declaration of Independence states, endowed by their Creator. Government does not grant rights; it recognizes and protects what already exists. This distinction matters enormously. If rights are pre-political, then government’s role is essentially negative: to prevent others — including itself — from violating what is already yours. If rights are political — if they are grants, allocations, or entitlements created by the state — then their scope and nature are always and necessarily subject to revision by whoever controls the state. The first conception grounds rights in something beyond government’s reach. The second places them permanently at government’s disposal.
The progressive interpretation of the Constitution has leaned heavily on the Fourteenth Amendment — ratified in 1868, in the wake of the Civil War — and its guarantees of equal protection and due process. The amendment has indeed been read expansively, incorporating the Bill of Rights against the states and eventually serving as the constitutional vehicle for a range of rights not enumerated in the original text. But the Restorationist reading of the Fourteenth Amendment is coherent and historically grounded: the amendment was designed to remove government-imposed barriers to individual liberty — to prohibit states from enforcing legal regimes that denied equal standing to persons on the basis of race. It was, in this sense, a clarification and enforcement of the negative-liberty framework, not a departure from it. It said: the government may not discriminate. It did not say: the government must provide. The subsequent judicial and legislative expansion of the amendment into a mandate for government provision of material goods is not an interpretation of the amendment — it is a transformation of it, accomplished through rhetorical substitution rather than constitutional amendment.
The Founders also anticipated change. They knew that the challenges of 1789 would not be the challenges of 1889 or 1989. They built, deliberately and carefully, a mechanism for constitutional evolution: the amendment process. Article V sets out a demanding but achievable path for altering the Constitution’s text. If the American people, through their representatives, decide that healthcare is a constitutional right, they may amend the Constitution to say so. The process exists. It has been used twenty-seven times. The Restorationist does not say that the Constitution is perfect or that it is immune to revision. The Restorationist says: if you wish to change it, change it — through the process designed for that purpose. Do not reinterpret it beyond recognition and call the result constitutional fidelity.
III. THE RHETORICAL BATTLEFIELD
The philosophical divide between negative and positive liberty might remain a tractable academic dispute if it were not for the systematic deployment of language designed to obscure the distinction, import the moral authority of one tradition into the claims of the other, and delegitimize the constitutional structures that might adjudicate between them. American political discourse is not merely confused on these questions. In many cases, it is strategically confused — and the strategy is worth naming.
The first and most pervasive rhetorical pattern is what might be called rights creep: the practice of appending the word “right” to any desired policy outcome. The “right to healthcare.” The “right to a living wage.” The “right to housing.” The “right to broadband internet.” Each of these formulations imports the full moral and constitutional weight of the rights tradition — the weight that attaches to your right to speak freely or to worship as you choose — into what is, constitutionally speaking, a legislative preference or a policy goal. The importation is not innocent. A right, properly understood in the negative-liberty framework, is a claim that imposes a corresponding duty of restraint upon others. Your right to free speech imposes on me the duty not to silence you. Your right to keep property imposes on me the duty not to steal it. These duties cost nothing to fulfill except forbearance.
A positive right is different in kind. Your “right” to healthcare imposes a duty on someone — doctors, hospitals, taxpayers, the government — to provide you a service. That provision requires resources. Those resources must come from somewhere. They can only come from the labor, property, and income of other people, which means a positive right can only be fulfilled by diminishing the negative rights — specifically, the property rights and the right to the fruits of one’s labor — of those compelled to fund it. This is not a reductio ad absurdum; it is the straightforward logic of redistribution. Rights creep collapses this distinction and makes every policy debate sound like a civil rights struggle, thereby placing anyone who questions the policy in the position of opposing rights itself. It is a rhetorical maneuver of considerable power and considerable dishonesty.
The second pattern is the deployment of “democracy” as a trump card against constitutional constraints. The phrase “our democracy” has become, in recent years, a specific rhetorical weapon — used not to describe a form of self-governance but to delegitimize the particular constitutional structures that were designed precisely to check majoritarian overreach. The Electoral College, the Senate’s equal apportionment of states, the lifetime tenure of federal judges, the filibuster — each of these constitutional features is now routinely described as “anti-democratic” and, by extension, as an enemy of freedom. What goes unexamined in this rhetoric is that the Founders were explicitly and deliberately afraid of pure democracy. Madison, in Federalist No. 10, warned against the “violence of faction” that pure democracies historically produce. The constitutional republic he helped design is structured to prevent temporary majorities from trampling permanent rights. When “democracy” is invoked to justify abolishing constitutional limits on majority power, it is being turned against the document that defines and protects American self-governance — and the word is doing the opposite of what its invokers claim.
The third pattern is the use of the “living Constitution” as a rhetorical rather than merely a jurisprudential device. The argument that constitutional meaning must evolve with the times has legitimate philosophical dimensions — there are serious legal scholars who hold it in good faith. But as deployed in public political rhetoric, it functions as a license: it allows the interpreter to claim constitutional authority for positions the text does not support, while dismissing those who rely on text and original meaning as impractical antiquarians stuck in the eighteenth century. The rhetorical advantage is obvious. If your preferred policy is constitutional — not because the text says so, but because an evolved understanding of the Constitution’s purposes requires it — then you can claim the prestige of constitutional grounding without the inconvenience of actually amending the document. The Restorationist response is blunt: the Founders knew times would change. That is precisely why they included Article V. The living-Constitution argument does not update the Constitution; it bypasses it — and calls the bypass an update.
The fourth pattern is the false equivalence embedded in progressive freedom language, which frames deregulation, tax reduction, and the protection of gun rights as “freedom for the powerful” while framing redistribution as “freedom for the many.” This rhetorical move accomplishes something subtle and damaging: it collapses the distinction between freedom and equality of outcome. Freedom, properly understood, is indifferent to outcomes. The First Amendment does not guarantee that your speech will be effective. The Second Amendment does not guarantee that you will be safe. The right to contract does not guarantee that you will prosper. Freedom guarantees the process — your rights are secure, the playing field is governed by law, and the state may not arbitrarily intervene on behalf of one party against another, without guaranteeing the result. When “freedom for the many” means “ensuring that outcomes are more equal,” the concept of freedom has been replaced by the concept of equality, and the replacement has been dressed in freedom’s language. Both concepts are important. Neither is served by pretending they are the same.
IV. THE COST OF CONFUSION
When two incompatible definitions of freedom are allowed to coexist in the same political discourse without resolution — when the word is permitted to mean whatever any given speaker needs it to mean in any given moment — the result is not pluralism. The result is incoherence. And incoherence, in political life, is not a neutral condition. It is an opportunity for power.
Consider what happens to constitutional argument in this environment. A Restorationist points to the text of the First Amendment and argues that the government may not compel speech. A progressive responds that in a world of concentrated corporate media power, meaningful free speech requires redistribution of broadcast access and regulation of platforms. The Restorationist points to the Fourth Amendment and argues against warrantless surveillance. The progressive responds that national security requires tools that the Founders could not have anticipated. At every turn, constitutional argument is met not with a better constitutional argument but with a utilitarian counter — a claim that the stakes are too high, the circumstances too novel, the need too urgent to be constrained by eighteenth-century text. And when constitutional argument is systematically answered with utilitarian counters, the Constitution ceases to function as law and becomes merely one input among many into an ongoing political negotiation. It loses its authority. It loses its finality. It loses the one quality — the quality of being a rule rather than a preference — that makes it capable of settling disputes rather than merely reflecting them.
The confusion is, in part, strategic. A confused electorate is easier to mobilize with emotional appeals than a constitutionally literate one. When “freedom” can mean anything, it means nothing — and political actors rush to fill the vacuum with whatever definition serves their coalition’s interests in the moment. The result is not a debate about freedom but a war of competing grievances dressed in freedom’s language. Each side accuses the other of tyranny. Each side describes itself as the last defender of liberty. Each side invokes the Founders, selectively and tendentiously. And the shared vocabulary that might allow them to adjudicate the dispute has been so thoroughly corrupted that no adjudication is possible. What remains is not argument but mobilization, not persuasion but polarization.
This is the Restorationist’s deepest concern, and it goes beyond any particular policy dispute. Bad policies can be corrected. Majorities change. Elections are won and lost. What cannot easily be recovered — once lost — is the institutional and conceptual architecture within which correction is possible. When constitutional structures are delegitimized as “anti-democratic,” when courts are described as illegitimate because their decisions are inconvenient, when the amendment process is bypassed in favor of reinterpretation, when the rule of law is treated as an obstacle rather than a foundation, the mechanisms of self-correction weaken. And a political system that has lost its mechanisms of self-correction is not merely dysfunctional — it is dangerous. Not to any particular ideology or party, but to the project of self-governance itself.
V. THE RESTORATIONIST CASE
Restoration is not nostalgia. Let that be stated plainly, because the charge of nostalgia is the most common and least serious objection to the Restorationist project. No serious Restorationist wishes to return to the social conditions of 1789 — to a world of slavery, of property qualifications for voting, of women excluded from civic life. The Restorationist case is not about those conditions. It is about the operating principles of constitutional self-governance — limited government, enumerated powers, natural rights, separation of powers, federalism, and the rule of law — and the application of those principles to contemporary challenges with honesty and rigor.
What does this look like in practice? The Restorationist argues that the answer to unjust laws is not more government power directed in a different direction, but more constitutional fidelity to the restraints that prevent unjust laws from becoming entrenched. The answer to inequality of outcome is not the redistribution of liberty — the compelled transfer of one person’s rights in order to subsidize another’s outcomes — but the vigorous removal of government-created barriers to equal participation: barriers of discriminatory law, of cronyism, of regulatory capture, of the thousand mechanisms by which government power has historically been deployed to benefit the well-connected at the expense of the rest. The answer to political dysfunction is not to circumvent constitutional structures because they are inconvenient in the moment, but to restore their integrity so that they can perform the function they were designed to perform. And the answer to rhetorical manipulation — to rights creep and democracy-as-trump-card and living-Constitution-as-license — is to insist, relentlessly, on definitional precision. To refuse to concede the language of rights and freedom to those who are deploying it to advance positions that are, constitutionally speaking, their opposite.
There is an objection to the Restorationist argument that deserves honest engagement, because it is not trivial. The objection goes like this: constitutional principles have historically failed to protect marginalized groups. The Constitution coexisted with slavery for nearly a century. It coexisted with Jim Crow for nearly another century after that. The natural rights philosophy did not save Frederick Douglass’s people from the lash, or Japanese Americans from the internment camps, or women from legal subordination. If the constitutional framework was so well-designed, why did it fail so many people for so long?
The Restorationist answer is this: the failures were not failures of the principles. They were failures of fidelity to the principles — willful, sometimes violent violations of the very framework that was nominally in place. The Constitution said “all persons” and the courts read it to mean “all white persons.” The natural rights philosophy declared that all men are created equal and the law declared that some men were property. These were not the Constitution in operation. They were the Constitution betrayed. And the response to the betrayal of principles is not the abandonment of those principles — it is the insistence on living up to them. The civil rights movement at its most constitutionally grounded was Restorationist in character. Thurgood Marshall argued before the Supreme Court not that the Constitution was insufficient, but that it was being violated. The great speeches of Martin Luther King Jr. returned again and again to the founding promise — the Declaration’s “all men are created equal,” the Constitution’s guarantee of equal protection — and demanded, with extraordinary moral authority, that America make good on commitments it had already made. This was not a rejection of the constitutional framework. It was the most powerful possible affirmation of it.
The Restorationist does not minimize the distance between constitutional promise and historical reality. That distance has been real and painful and costly. But the lesson of the civil rights movement — the lesson the Restorationist takes most seriously — is that the answer to the gap between promise and reality is fidelity, not substitution. Replace the framework with something else and you have not closed the gap; you have removed the standard by which the gap was measured.
VI. SPEAKING CLEARLY IN A TIME OF CONFUSION
In an era defined by political noise, the most subversive act available to a serious citizen may be the insistence on precise language. Not precision as pedantry — not the retreat into technicality as a way of avoiding the moral weight of political questions — but precision as intellectual honesty, as the refusal to let words be emptied of meaning by those who find ambiguity useful.
When someone invokes “freedom,” ask the question the word demands: freedom from what, or freedom to what? These are not the same question. The first describes a sphere of protection around the individual. The second describes a claim on the resources or labor of others. Both are important, but they operate on different logic, have different constitutional standing, and make different demands on the political order. Collapsing them — treating them as though they were two descriptions of the same thing — is not nuance. It is confusion, and it should be named as such.
When someone invokes “rights,” ask who bears the corresponding duty, and whether that duty is constitutionally authorized. A right without a duty is a wish. A duty imposed without constitutional authority is a command without legitimacy. The rights framework that Americans inherited from the founding is powerful precisely because it is disciplined — because it tells you not only what you are entitled to, but who owes you what, and on what basis. Importing the language of rights into policy debates without that discipline does not strengthen the rights framework; it degrades it, until “rights” means nothing more than “things I want very much.”
When someone invokes “democracy,” ask which democratic framework they mean. The constitutional republic the Founders designed — with its distributed powers, its counter-majoritarian protections, its deliberate inefficiencies, its insistence that process matters as much as outcome — or an unmediated majoritarianism that the Founders explicitly studied, explicitly feared, and explicitly rejected? These are not the same thing. One is the system America has. The other is the system that has, historically, preceded tyranny. Confusing them is not a rhetorical error. It is a political danger.
The Restorationist project is not, ultimately, about winning elections, though elections matter. It is not about any particular party, though parties are tools for pursuing political ends. It is about preserving — and where necessary, recovering — the conceptual vocabulary and institutional architecture within which genuine self-governance can occur. Without shared definitions, there can be no shared argument. Without shared argument, there can be no persuasion. Without persuasion, there can be no consent. And without consent, what is called democracy is merely the organized imposition of the will of the stronger upon the weaker, dressed in whatever language the moment requires.
America’s philosophical divide is real. The two conceptions of freedom that animate its political life are genuinely in tension, and that tension will not resolve itself through good feelings or calls for unity. It can only be resolved — not eliminated, but resolved in the sense of adjudicated, channeled, managed — through a return to the constitutional framework that was designed precisely for this purpose. A framework that says: here is the arena of legitimate political contestation, here are the rules of engagement, here are the rights that are not available for majority purchase at any price, and here is the process by which the framework itself may be changed, if the people genuinely will it.
The republic, as Benjamin Franklin is said to have remarked upon leaving the Constitutional Convention in 1787, is a republic — if you can keep it. Two and a half centuries later, keeping it still requires the same thing it has always required: citizens who understand what it is, who can articulate what it is, and who are willing to insist on it in the face of every temptation to trade it for something simpler, louder, and easier to promise. That insistence is not partisanship. It is the precondition for everything else.
— Vic
Upper Grand Lagoon, Florida | May 2026
