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


Once upon a time, and not so long ago, American politics revolved around the Constitution. Until the New Deal, and in certain respects until the mid-1960s, almost every major U.S. political controversy involved, at its heart, a dispute over the interpretation of the Constitution and its principles. Both of the leading political parties eagerly took part in these debates, because the party system itself had been developed in the early 19th century to pit two contenders (occasionally more) against each other for the honor of being the more faithful guardian of the Constitution and Union. Even from today’s distance, it isn’t hard to recall the epic clashes that resulted: the disputes over the constitutionality of a national bank, internal improvements, the extension of slavery, the legality and propriety of secession, civil rights, the definition and limits of interstate commerce, liberty of contract, the constitutionality of the welfare state, the federal authority to desegregate schools, and many others.

What’s different today is that, although it still matters, the Constitution is no longer at the heart of our political debates. Today’s partisans compete to lead the country into a better, more hopeful future, to get the economy moving again, to solve our social problems, even to fundamentally transform the nation. But to live and govern in accordance with the Constitution is not the first item on anybody’s platform, though few would deny, after a moment’s surprise at the question, that of course keeping faith with the Constitution is on the program somewhere — maybe on page two or three.

Presidents still swear (or affirm, for you sticklers) to “preserve, protect, and defend the Constitution of the United States,” and other state and federal officeholders take similar oaths. And, perforce, constitutional questions continue to arise now and then in our politics. But these rarely command center stage. The Democrats, for example, condemned George W. Bush’s supposed abuse of presidential war powers, but they never bothered to turn their carping into a doctrine; the only remedy they were really interested in was a change of personnel, and Barack Obama now carries out many of the previous administration’s policies without a whimper from the Democratic majorities in the House and Senate.

It’s a little different when federal judges — especially Supreme Court justices — are to be appointed. Then the political class focuses at least momentarily on constitutional matters, usually in such a tendentious way that at the end of the process everyone is glad not to have to think about those issues again for a while. Besides, the kabuki dance of judicial nominations is now well choreographed on both sides. Sonia Sotomayor was a wise enough Latina to sound, in her testimony, like the second coming of William Rehnquist.

Against this sideshow version of constitutionalism, the tea partiers are lodging a memorable protest. President Obama’s victory in the health-care battle, combined with his administration’s relentless march toward higher taxes, deeper debt, and bigger government, have led to an outcry for renewing constitutional limits on the ambition and growth of the federal establishment. The new movement’s very name recalls the revolt against an unwritten constitution (the British) that had become an excuse for unlimited government, and the replacement of that arrangement by a written constitution limiting government power. For Republicans, the tea party has proved tonic. Reminded of arguments they haven’t made in decades, the GOP’s leaders are denouncing Obamacare not only as bad medicine but as political malpractice: the deliberate and wicked violation of constitutional norms.

At this hopeful juncture, two questions need to be asked. First: Whatever happened to the Constitution? That is, why did it go into eclipse in the first place? Second: What is so good about the Constitution’s strictures, and what guidance and assistance do they offer toward their own revival?