Rand Paul’s Popular Constitutionalism

by Reihan Salam

Radley Balko of the Washington Post praises Kentucky Sen. Rand Paul for introducing the FAIR (Fifth Amendment Integrity Restoration) Act, legislation designed to protect citizens against abuses of civil asset forfeiture. Like Andrew Stuttaford, I’m also inclined to support Paul’s effort, though I can’t say I’ve thought very deeply about the issue. What is interesting is that Paul is interested in defending the spirit of the Fifth Amendment, and he’s not willing to leave its defense to the courts. This brings to mind Ramesh Ponnuru’s Room to Grow essay arguing that the work of recovering the wisdom of the Constitution is as much about political arguments made by candidates and elected officials as it is about the decisions made by federal judges:

Conservatives have invested a lot of hope in the courts: in the idea that appointing the right justices and making the right legal arguments will reset our constitutional trajectory. They are right, to a point: The federal courts have an important role in defending constitutional norms. The Supreme Court was right, for example, to set an outer limit to federal power by holding that Congress cannot simply make it illegal to refuse to purchase health insurance.

The task of recovery is too large to be plausibly entrusted in its entirety to the courts. They cannot set right all that is awry with contemporary government. They cannot do that for reasons of politics, of prudence, of institutional capacity, and of judicial restraint. The courts, for example, rightly treat the balance of power between the executive and legislative branches on matters of war and peace as a political question. Because our political culture thinks of the courts as the arbiters of all things constitutional, unfortunately, it tends to treat any governmental practice that the courts have left in place as constitutionally legitimate.

The rise of the Tea Party movement has in recent years begun to counteract this tendency. That movement is in part a revival of popular interest in constitutionalism. Instead of treating the Constitution as the property of lawyers and judges, it proposes that legislators, and even citizen-activists, have an independent duty to evaluate the constitutionality of legislation. Moved by this sentiment, the U.S. House of Representatives now requires legislation to identify its constitutional basis.

Though I often disagree with Paul, he has done much to advance the cause of a political and not just legal constitutionalism, and for that he deserves praise. The subject that I would benefit the most from a robust political constitutionalism is the nature of our federal system of government, a subject that Richard Epstein and Mario Loyola ably address in the new National Affairs.