James Ceaser on Political Constitutionalism

by Ed Whelan

Now available online from the spring 2012 issue of the Claremont Review of Books is an excellent essay by University of Virginia professor of politics James W. Ceaser that aims to recover the concept of political constitutionalism. Here, with some selected excerpts, is my stab at presenting Ceaser’s main points:

There are two senses of the Constitution, both of which are important.

The dominant—and, for many, exclusive—understanding of the Constitution is legalistic constitutionalism, a set of rules and doctrines developed by judges to decide cases. Legalistic constitutionalism by itself doesn’t offer much promise of constraining undisciplined government.

The second sense, of political constitutionalism, “must assume the principal role in any campaign for a constitutional revival.” Unfortunately, the very concept “has all but slipped from our grasp.” Political constitutionalism recognizes that under our Constitution “it falls mostly to political actors making political decisions to protect and promote constitutional goals”:

Political constitutionalism consists of the public presentation of views of what is (or is not) constitutional policy, not just in a legal sense, but in a way that looks to the goals the Constitution was meant to promote and the kind of government it was designed to create. Political constitutionalism was once a concept widely understood.…

Political constitutionalism is not laissez-faire, Hayekian, liberal, or conservative. These political schools all contain premises about politics that do not derive from the Constitution. Each school can pursue its aims, up to a point, under the Constitution. A true constitutionalist may therefore be a certain kind of liberal or conservative, but only a liberal or conservative within the boundaries and jurisdiction fixed by the Constitution…”

Political constitutionalism is less concerned with checking the box for a particular method than in securing a net result over a longer time period. It will consider the direction in which we should now be moving, e.g., more or less autonomy for state governments, rather than fidelity to a prevailing rule.… Political constitutionalism goes to the broader policy. In instances, for example, of laws passed under the Commerce Clause, political constitutionalism will focus on whether the purpose of the policy is in fact to facilitate commerce among the states, or whether instead the real aim is to exercise a plenary national police power to regulate conduct or mores.

Conservatives, Ceaser argues, must resist the temptation to imagine that the Constitution dictates their political agenda. “Conservatives should have little difficulty, however, in articulating a compelling program [of political constitutionalism] that includes an emphasis on the limitation of federal powers and on a proper understanding of the character of constitutional rights” as natural rights (rather than as the “liberal wish list of social and economic rights”).

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