In the pages of Commentary last Friday, Peter Wehner responded at length to my criticism of a National Affairs feature in which he had accused tea partiers of misunderstanding the nature of the American Constitution. Or rather, in the choice word of Wehner’s co-author Michael Gerson, Wehner “educated” me as to why I was wrong to challenge him.
Greatly thrilled as I am by all things didactic, I nevertheless have some queries for my tutors, with whom I must confess I still rather strongly disagree. For a start, I would respectfully remind Wehner of the question he set out in the first instance to address, which is whether the modern federal government can reasonably be said to tally with the Founders’ vision and with the Constitution that they produced, and which is not whether conservatives are electorally wise to attempt a resuscitation of that Constitution. In his reply, Wehner sticks largely to the latter inquiry, once again making a reasonable case that the conservative movement should accept that the priorities and desires of the American people have changed, delivering anew the vehement and wise warning that an overly aggressive program of constitutional repristination would be electoral folly, but ultimately doing little to establish that there is a strong connection between the positions he holds and the Founders’ Constitution. This, naturally, is a problem.
Last time around, I noted that the Constitution is not a mere suggestion booklet but instead a charter “of ultimate law — the provisions of which were fought over line by line,” and that, in consequence, it is incumbent upon us to hew closely to the text as it was written and, later, formally amended. I contended, too, that the Progressive amendments of the early 20th century dramatically changed the document’s scope and cannot therefore be used to link modern action with original intent. And I finished by arguing that one should be wary of anybody who approaches settled law by disparaging “abstract theories” and by referring vaguely to the “prescient mindset” of those who wrote the rules, lest they slide into living constitutionalism. “Our peculiar security is in the possession of a written Constitution,” Thomas Jefferson wrote. “Let us not make it a blank paper by construction.” Whether they mean to or not, my submission was that Wehner and Gerson’s line of argument will lead us inexorably to that very state, subordinating timeless meaning in favor of contemporary convenience and driving a fatal hole through the originalists’ cause.
Rather curiously, Wehner resolves to parry my complaint that he is making a strong case for living constitutionalism by . . . well, by making a strong case for living constitutionalism. “As for the charge of embracing a ‘living Constitution,’” he writes,
it is one thing, and I believe quite a problematic thing, for judges to invent and create and impose on the public invented rights. But in the representative democracy the founders created, they certainly believed that within certain parameters the will of the people, ratified in election after election and by Congress after Congress, needed to be taken into account. And Social Security has been ratified in dozens of staggered elections (presidential, Senate, and House) over the course of most of the 20th century and all of the 21st century.
This is a peculiar argument. For a start, I fail to see why it is better for an individual to have the rules of his government informally changed by a majority of his peers than to have them changed by a judge or nine. In both cases, a document’s legal meaning and practical effect is being substantially altered outside of the legitimate process for reform. Does the input mechanism really matter that much?
Wehner maintains that it does, recalling correctly that James Madison at first “opposed the creation of the First National Bank on constitutional grounds but, in revising his views” while president, “signed the act establishing” the second one. This is an accurate description of what did happen, certainly, but it is by no means a slam-dunk argument of what should have happened, nor does it serve as a contribution to the case that today’s sprawling, intrusive, illimitable government is the direct descendant of the charter-as-written. In fact, the example raises an important question: To wit, if Madison’s attitude toward the bank is to be our guiding principle in these matters, then why do we have a codified constitution at all? Why not instead declare parliament to be sovereign and determine to settle all questions by simple majority at the ballot box, as my country of birth has elected to do?
At the very least, I would like to know where the limiting principle lies. Wehner writes that,
the conduct of elections that tacitly or explicitly endorse existing policy, and people’s decisions with the passage of time to rearrange their own lives in light of the law, all amount to a public ratification.
To paraphrase Madison himself, I cannot undertake to lay my finger on that article of the Constitution that grants the public the right to ratify amendments outside of the amendment process. Perhaps Wehner could explain where it is? Perhaps, too, he could clarify whether this system applies only to expansions of general provisions — and if so, given that the Constitution is a charter of enumerated powers, why? Suppose that a) the First Amendment were being routinely undermined and b) that the American people seemed content with that and voted repeatedly to reelect those doing the undermining. In and of itself, would that change the First Amendment’s meaning? No, it would not. Would it mean that the document didn’t need amending by the usual means? No, it would not. It would merely mean that a majority was happy to ignore one of its provisions. I’d venture that, in such a case, the reinterpretation’s being “popular” would be of little consolation to those who expected what is ultimately a matter of law to protect them from the transient passions of the majority. Why, then, should this not apply with Medicare? Can simple majorities really change the meaning of counter-majoritarian rules purely because they are persistent?
During a recent examination of alleged executive overreach, Justice Scalia asked the government’s counsel whether his position was that “if you ignore the Constitution often enough, its meaning changes.” The suggestion is, of course, preposterous. And yet Wehner relies heavily upon precisely this conceit. For the second time in a row, he recruits to his cause the case of the Louisiana Purchase, presenting the affair as if it supports his argument rather than mine:
I can’t help but note that even Thomas Jefferson, who was more skeptical of a strong federal authority than many others of the Founders, managed to conclude the Louisiana Purchase without amending the Constitution to permit so massive an exercise of federal power.
Even if we were to buy into the peculiar notion that the refusal of the government to live by the rules that restrain it effectively changes those rules, this example would remain as misleading this time around as it was the first. Contra the implication here, Thomas Jefferson believed strongly that the Louisiana Purchase exceeded the bounds of the federal government’s enumerated powers, and he said so repeatedly, contending before the Senate ratified his treaty that Article IV of the Constitution allowed for new states to be added but included no permission for the federal government to add foreign territories, and writing that “the General Government has no powers but such as the Constitution gives it. . . . It has not given it power of holding foreign territory, and still less of incorporating it into the Union.” His conclusion? “An amendment of the Constitution seems necessary for this.”
As Gordon S. Wood records in his magisterial Empire of Liberty, Jefferson’s “great enthusiasm for the purchase” by no means clouded his constitutional judgment. “Being a firm believer in limited government and strict construction of the Constitution,” Wood writes, “for seven weeks he worried about the issue and tinkered with the idea of amending the constitution.” It was only when Napoleon started to have second thoughts that Jefferson rushed ahead, and, even then, his concern remained sufficiently great for him to draft an amendment that would have retroactively authorized the move. (Congress ignored it.) One can certainly point to this incident as an example of the federal government’s ignoring the constraints in which it was placed — and of Jefferson’s abandoning his firmly held principle for the sake of ambition and expedience. But to claim that the lack of an amendment makes the case that there was no need for one in the first instance is nothing short of extraordinary.
Wehner spends much of the rest of his post doing precisely what I said he would: that is, making a political and not a legal case. Ronald Reagan, he correctly points out, not only made his peace with the likes of Social Security, but did so enthusiastically. This, he appears to believe, is a trump card: “What do Cooke and others including so-called ‘constitutional conservatives’ who praised his article,” he asks,
make of the fact that Ronald Reagan, the most important figure in the history of modern conservatism, praised Social Security and went out of his way to assure voters he had no intention of dismantling the New Deal?
I must confess to being unsure of at what point exactly the 40th president became the ultimate arbiter of constitutionality. Wehner and I are having a debate here, and I’d suggest that merely throwing Reagan’s name at me and saying “huh, huh?” as if Reagan’s word were gospel does little to contribute to it. Wehner further asks:
Does Cooke detect a “whiff of living constitutionalism” and a “tendency to subordinate ‘enumerated powers’” in Reagan’s words? Surely he must, since Reagan never challenged the constitutionality of Social Security and the New Deal and in fact affirmed them.
Well, yes. I do. It seems to follow as a matter of basic logic that if I’m right about this, then Reagan was wrong — and vice-versa, naturally. And Ronald Reagan was wrong about many things. Indeed, much as I admire the 40th president, I think that he was wrong about the scope of the Second Amendment, wrong on a whole host of First Amendment questions, and wrong about the legality and wisdom of the Drug War. If we are going to play this game, why not ask me about the founder of this magazine, William F. Buckley Jr., whose constitutional opinion on the limits of free speech differed rather wildly from my own? I’ll tell you why: because it’s irrelevant. Arguments must stand or fall on their own merits. One cannot reasonably expect them to be rescued by warm feelings toward their proponents.
As I wrote in my initial response, Wehner is wholly within his rights to argue that, as a matter of practical politics, Republicans should make their peace with modern federal government. But just as pointing to Ronald Reagan by no means settles anything, asking me over and over whether or not I would recommend that the GOP take on Social Security and Medicare in the next election does nothing whatsoever to advance the case that Social Security and Medicare can realistically be said to tally with the Founders’ vision. Wehner asks me:
Is Social Security unconstitutional? If he believes it is, does Cooke therefore believe conservatives and Republicans should run for elective office and base their governing agenda on repealing Social Security on the grounds that it qualifies as an assault on the Constitution? He seems to suggest they should.
This is a remarkable non sequitur. One can simultaneously recognize that it would be suicidal for a politician to strike a particular pose and also acknowledge that that pose would be consonant with the rules. One can acknowledge, too, that the polity has changed and that it is now happy to live under a warped, perhaps exiled, charter. Nevertheless, as before, I would that those who believe this to be true had the courage to argue bluntly that the Founders’ Constitution is dead and that conservatives should deal with it — that the modern world has outrun the law, if you will. If Wehner thinks that the future has no place for “constitutional conservatives” such as myself, then that is his prerogative. He may even be right. Why attempt to rewrite the prologue to my extinction?
— Charles C. W. Cooke is a staff writer at National Review.