For the most part, the Constitution’s diminishment was the work of modern liberalism, beginning in the progressive era and accelerating with the New Deal. Though the original Constitution has not disappeared entirely, it grows less and less relevant, or even legible, to our political class.
The precise character of the new constitutional arrangements may seem mysterious. In the New Deal, liberals called for judicial restraint to keep the courts from blocking legislative experiments at the state and federal levels. From the Warren Court on, they cheered judicial activism, at least until the bench threatened to fill up with conservative judges. The thread connecting their shifting positions is not simply their fondness for social experiments by whichever branch is mounting them, but a deep-seated attachment to a new kind of experimental or historical right. For the Framers, rights were attributes of individual human beings who had been endowed with them by nature and nature’s God. The same government needed to secure these rights could possibly threaten them, so a constant vigilance was called for to keep government limited to its just powers. For contemporary liberals, rights reflect society’s stage of evolution and become real only when they are actualized, i.e., granted and enforced by government. Rights are therefore government-friendly. Indeed, after a certain point of social evolution, the more power given to government, the more rights it can and will give to the people. Far from checking, limiting, and channeling government powers, a proper constitution should therefore liberate them. Only from Big Government come entitlement rights, ethnic and racial preferences, and the newfangled “identity” rights without which liberty would be meaningless. The tea party is inherently reactionary, liberals believe, because it doesn’t grasp that Big Government, far from being a threat to liberty, is freedom’s greatest achievement.
Conservatives have done their part to sideline the Constitution, too. In the 1960s they invoked it in opposing Medicare and Medicaid, while southern Democrats cited it in fighting the Civil Rights Act and the implementation of Brown v. Board. This mixed bag of causes — and the defeat of all of them — helps to explain conservatives’ subsequent shyness about making constitutional claims. Ronald Reagan appealed to the Constitution’s spirit of federalism: In his losing 1976 campaign, he advocated returning $90 billion (a lot of money in those days) in welfare expenditures and programs to the states, and in 1980 he warned that the federal government showed signs of having grown beyond the consent of the governed. But by 1984 he was proclaiming, “It’s morning again in America,” as if the danger had been a bad dream.
Morning quickly turned to night as George H. W. Bush espied a thousand points of light in the sky. His son later ran for president preaching the four Cs: courage, compassion, civility, and character; Constitution, notice, was not one of them. In 1996, Republican congressional majorities had forced Bill Clinton to return a federal entitlement program to the states. Seven years later, George W. Bush and his Republican congressional majorities passed a new federal entitlement, Medicare Part D, the first since the Great Society and the first ever with no specific source of funding attached to it. Complaints about the ineptitude and intrusiveness of the federal government remain a conservative staple, and the GOP has run through a pharmacopoeia of remedies for the problem without success: tax cuts, tax pledges, tax limits, spending limits, term limits, part-time legislatures, full-time conservative judges, divided government, and a host of never-enacted, barely serious constitutional amendments.