Even if we were to buy into the peculiar notion that the refusal of the government to live by the rules that restrain it effectively changes those rules, this example would remain as misleading this time around as it was the first. Contra the implication here, Thomas Jefferson believed strongly that the Louisiana Purchase exceeded the bounds of the federal government’s enumerated powers, and he said so repeatedly, contending before the Senate ratified his treaty that Article IV of the Constitution allowed for new states to be added but included no permission for the federal government to add foreign territories, and writing that “the General Government has no powers but such as the Constitution gives it. . . . It has not given it power of holding foreign territory, and still less of incorporating it into the Union.” His conclusion? “An amendment of the Constitution seems necessary for this.”
As Gordon S. Wood records in his magisterial Empire of Liberty, Jefferson’s “great enthusiasm for the purchase” by no means clouded his constitutional judgment. “Being a firm believer in limited government and strict construction of the Constitution,” Wood writes, “for seven weeks he worried about the issue and tinkered with the idea of amending the constitution.” It was only when Napoleon started to have second thoughts that Jefferson rushed ahead, and, even then, his concern remained sufficiently great for him to draft an amendment that would have retroactively authorized the move. (Congress ignored it.) One can certainly point to this incident as an example of the federal government’s ignoring the constraints in which it was placed — and of Jefferson’s abandoning his firmly held principle for the sake of ambition and expedience. But to claim that the lack of an amendment makes the case that there was no need for one in the first instance is nothing short of extraordinary.
Wehner spends much of the rest of his post doing precisely what I said he would: that is, making a political and not a legal case. Ronald Reagan, he correctly points out, not only made his peace with the likes of Social Security, but did so enthusiastically. This, he appears to believe, is a trump card: “What do Cooke and others including so-called ‘constitutional conservatives’ who praised his article,” he asks,
make of the fact that Ronald Reagan, the most important figure in the history of modern conservatism, praised Social Security and went out of his way to assure voters he had no intention of dismantling the New Deal?
I must confess to being unsure of at what point exactly the 40th president became the ultimate arbiter of constitutionality. Wehner and I are having a debate here, and I’d suggest that merely throwing Reagan’s name at me and saying “huh, huh?” as if Reagan’s word were gospel does little to contribute to it. Wehner further asks:
Does Cooke detect a “whiff of living constitutionalism” and a “tendency to subordinate ‘enumerated powers’” in Reagan’s words? Surely he must, since Reagan never challenged the constitutionality of Social Security and the New Deal and in fact affirmed them.
Well, yes. I do. It seems to follow as a matter of basic logic that if I’m right about this, then Reagan was wrong — and vice-versa, naturally. And Ronald Reagan was wrong about many things. Indeed, much as I admire the 40th president, I think that he was wrong about the scope of the Second Amendment, wrong on a whole host of First Amendment questions, and wrong about the legality and wisdom of the Drug War. If we are going to play this game, why not ask me about the founder of this magazine, William F. Buckley Jr., whose constitutional opinion on the limits of free speech differed rather wildly from my own? I’ll tell you why: because it’s irrelevant. Arguments must stand or fall on their own merits. One cannot reasonably expect them to be rescued by warm feelings toward their proponents.
As I wrote in my initial response, Wehner is wholly within his rights to argue that, as a matter of practical politics, Republicans should make their peace with modern federal government. But just as pointing to Ronald Reagan by no means settles anything, asking me over and over whether or not I would recommend that the GOP take on Social Security and Medicare in the next election does nothing whatsoever to advance the case that Social Security and Medicare can realistically be said to tally with the Founders’ vision. Wehner asks me:
Is Social Security unconstitutional? If he believes it is, does Cooke therefore believe conservatives and Republicans should run for elective office and base their governing agenda on repealing Social Security on the grounds that it qualifies as an assault on the Constitution? He seems to suggest they should.
This is a remarkable non sequitur. One can simultaneously recognize that it would be suicidal for a politician to strike a particular pose and also acknowledge that that pose would be consonant with the rules. One can acknowledge, too, that the polity has changed and that it is now happy to live under a warped, perhaps exiled, charter. Nevertheless, as before, I would that those who believe this to be true had the courage to argue bluntly that the Founders’ Constitution is dead and that conservatives should deal with it — that the modern world has outrun the law, if you will. If Wehner thinks that the future has no place for “constitutional conservatives” such as myself, then that is his prerogative. He may even be right. Why attempt to rewrite the prologue to my extinction?
— Charles C. W. Cooke is a staff writer at National Review.