What has become of the “constitutional conservatives”?
For seven years now, President Obama’s opponents have shouted righteously outside the White House. This president, they have argued, does not care about the law; his Democratic party, they have charged, has adopted a “will to power” approach to politics; and the media . . . well, the media has been complicit in the ruse.
Offenses both small and great have been catalogued in horror. Obama has not only undermined the separation of powers, but he has arrested inconvenient video-makers, just like a fascist. He has not only unilaterally rewritten congressional law, but he has attempted to circumvent the right to bear arms, just as Adolf Hitler might. He has not only claimed powers that the Constitution clearly does not give him, but he has laid out plans to kill Americans without due process on their own soil. No departure has been too slight to invite protest. As Edmund Burke put it all those years ago, conservatives in the Obama years have not always waited for despotism before making their appeals, preferring instead to “augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.”
From my perspective, this development has been a salutary one. A free people should be reflexively distrustful of those who hold power, and they should be wedded to the idea that the law serves as the best bulwark against caprice. Human liberty is protected most effectively when its beneficiaries learn to separate their preferred outcomes from their preferred means and to elevate their future safety over their present expedience. We do not enjoy a codified constitution in this country because the founding generation was fearful of General Washington or John Adams, but because it was fearful of men in the future whose names and characters they did not — and would not — know. That the Right has demonstrated a flair for consistent dissent has been a good and welcome thing. That it has looked beyond the immediate and ushered in a host of public officials whose guiding lights lie within the nation’s supreme law is even better.
The idea of Trump as a paladin of civil liberties should make one howl with terrible laughter.
Or, perhaps, before he is gone? Indeed, if the current Republican front-runner is any indication of things to come, large swathes of the party have already abandoned their talk of “constitutional conservatism” and “limited government” and embraced a flat-out authoritarianism, at least as preached by “The Donald.” Whatever else he might be, the idea of Trump as a paladin of civil liberties should make one howl with terrible laughter. Since he announced his candidacy, Trump has threatened to ignore those who are carping about free speech and shut down parts of the Internet; he has promised to summarily deport those who are suspected of being illegal immigrants, without due process of law; he has endorsed extensive campaign-finance regulations that fly directly in the face of the First Amendment; he has vowed to restrict the Second Amendment rights of those on the terror watch list, again without due process; he has praised Franklin Roosevelt’s internment of American citizens, suggested that natural-born Americans can be deported against their will, and proposed that American Muslims be barred from reentering the country; he has described as “wonderful” a Supreme Court ruling that obliterated the “public use” limitations on the invocation of eminent domain; and he has refused to rule out registering Americans on the basis of their faith. Worse still, he has responded to the criticism that these positions have generated by channeling his inner Nancy Pelosi: “Are you serious?”And yet, despite all of these transgressions, 30 percent of GOP-primary voters still list him as their top pick. This is an unmitigated disgrace. For nearly a decade now, figures from all across the Right have been doing the vital intellectual spadework that is prerequisite to the Constitution’s revival. In the courts and in Congress, conservatives have made real progress in insisting that the law must sit at the center of our national political life. In the media, we have introduced “should we?” as the reliable bedfellow of “can we?” In the electorate writ large, activists and leaders have strived to ensure that “Is that constitutional?” is a litmus test for both policy and personnel. Who could have guessed that their efforts would be thrown to the curb the moment a cut-rate Roderick Spode began to bark and snarl at the fairgrounds?