The Constitution, at Last
From the May 17, 2010, issue of NR.


Having tried almost everything else, perhaps conservatives should consider the Constitution again. It is, as they say, no panacea. (Neither is it a panacea to note that something is no panacea!) But it could provide the spirit, the principles, the example, and even some of the institutions that might help to restore limited government to America.

The Constitution is, first and foremost, a republican document, grounded in the people’s authority, even as the people’s authority is grounded in the moral law. The frame of government’s first words, “We the People,” proclaim this, as do many of its particular provisions. “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts,” the Federalist explains, are prohibited by the Constitution because they are “contrary to the first principles of the social compact and to every principle of sound legislation.” They are prohibited because they are wrong, in other words, not wrong because they are prohibited. And their wrongness has nothing to do with the race or sex or class of the person who might be the object of a bill of attainder or the group that might be ensnared by an ex post facto law. The Constitution is not racist, sexist, or anti-democratic; though the original Constitution incorporated notorious compromises with slavery, it did so to obtain a Republic whose principles were anti-slavery, as well as a Union in which, as Lincoln put it, the public mind could rest content knowing that slavery had been put on a course toward extinction. Elementary as these points are, they are essential to rebut the Left’s moral indictment of the old Constitution. Fortunately, Harry V. Jaffa, Hadley Arkes, and the late Robert Goldwin and Martin Diamond have written copiously and brilliantly on the subject.

The Constitution establishes a government with two main structural principles — federalism and separation of powers — and each offers handles that citizens may grasp today to help relimit the national government.

Ours is, or was, a regime of enumerated legislative powers, in addition to certain implied powers that were “necessary and proper” to carry out the enumerated ones. The Founders disagreed among themselves about the extent of the implied powers (e.g., to charter a national bank) as well as about the exact bounds of presidential and judicial authority. But they expected to disagree in hard cases and left enough political play in the system for the people to take sides as they saw fit. Federalism was thus partly a legal or constitutional doctrine and partly a political one. Nonetheless, the state governments could serve as rallying points for opposition to federal encroachments, and still can. Though weakened by the Seventeenth Amendment (which destroyed the state governments’ control of the Senate) and other factors, the states may invoke their Tenth Amendment rights and link arms with one another in demanding that the offending national officeholders be voted out and a party of constitutionally faithful ones be voted in. This is the real electoral point of the states’ resistance, on display now in the impressive numbers of states protesting Obamacare. Schemes of neo-nullification (as Matthew Spalding has called them) purporting to declare a federal law null and void in a particular state are based on bad history and worse jurisprudence.