Politics & Policy

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?

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.

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.

When pointing to the state governments, we mean more than the state attorneys general. When the legislatures and governors object to an unconstitutional federal law, their protest carries more weight. And the state governments hold in reserve two other constitutional powers: to ask Congress for a constitutional amendment, and — the nuclear option — to call for a convention of the states to propose such an amendment if the Congress will not.

The Constitution wisely separated the powers of government, not only to prevent tyranny but also to enable each branch to perform its functions well. When the separation of powers worked unimpaired, it helped to prevent the disease we call Big Government. That ugly term implies, among other things, a centralization of administrative authority in Washington, or, to put it differently, a bureaucracy that thinks it possesses the wisdom and the right to administer state and local affairs all around the country. Big Government thus strikes simultaneously at federalism and the separation of powers, at the external and internal checks on the federal establishment, inasmuch as a bureaucracy of this sort must combine legislative, executive, and judicial powers to be effective.

For a hundred years, liberalism has worked to overcome the constitutional separation of powers, winning many battles — but not quite the war. In the current crisis, conservative efforts to restore the separation of powers may even be more important than a campaign to shore up federalism. TARP, for example, was an unprecedented delegation of legislative power to the Treasury secretary, of all people. It was a desperate, essentially lawless grant resembling the ancient Roman dictatorship, except that the Romans wisely confined their dictators to six-month terms. Obamacare is a 2,000-page monstrosity that will need thousands, perhaps tens of thousands, of pages of additional regulations before it can operate. These will be issued by more than a hundred new bureaucracies, each a source of unaccountable power wielded over individual Americans. These multiplying centers of petty tyranny will accelerate our transformation from a republic of laws to a corrupt regime of muddled and ever more arbitrary power.

To unravel these new structures of unconstitutional power — and their predecessors, added primarily since the mid-1960s — is an enormous challenge. But our efforts can start with the restatement of the constitutional goal, and the resolution that at least we shall go no farther toward centralizing and combining what should be separated. Obamacare must be repealed, even if the older bureaucracies cannot be. No new TARPs — and let us usher this one into the grave as quickly as possible. No new delegations of legislative power to unaccountable bureaucracies. We need to constitutionalize the government we have, as far as we can: to pare it back as much as possible to the functions it was designed to perform, and where that is not possible, to prefer more constitutional to less constitutional means in every policy area. Here is the beginning of an agenda for conservative legislators and presidents, and for citizens, to guide us back — or rather forward — to a healthier, more responsible, and more constitutional political life.

Charles R. Kesler is a senior fellow of the Claremont Institute, editor of the Claremont Review of Books, and professor of government at Claremont McKenna College. This article originally appeared in the May 17, 2010, issue of National Review.


The Latest