Conservatives and the Constitution

 
 

Conservatives must resist the temptation toward “big-government conservatism.” Easy acceptance of extra-constitutional federal powers betrays the philosophical roots of the conservative movement.

To argue that conservatism is not an ideology is not to imply that it has no firm guiding principles. On the contrary, it has, at its core, a fixed moral and philosophical framework. Conservatism contends that representative self-government must be grounded in the moral self-control of its citizens, that liberty should be ordered to prevent it from descending into license, and that liberty should only be constrained in order to ensure the public good. The ontology of conservatism has its foundation in the concepts of human equality under God, the nobility of man, and the reality of our imperfectability.

This philosophical framework naturally leads to a certain vision of government. Conservatism maintains that government must be modest in scope, ordered but not repressive, and established in personal liberty. It must be true to its founding principles yet responsive to the needs of the moment. It must also be grounded in a shared understanding of the nature of the state, the nature of man, and its governing Constitution.

These ideals are valuable and important to understand at all times, but they take on a special urgency now, as “big government conservatism”—oxymoronic as that title may be—steadily gains ground.

A Written Text and Human Equality

The Founders believed in effective government. Had they not, they would simply have continued under the dysfunctional Articles of Confederation. However, they also disavowed a government that does too much. The Founders consistently argued that the central government’s strength should be concentrated in limited fields of action.

It is for that very reason they gave us a written Constitution, one that clearly defines both the duties and boundaries of the federal government. Reacting against Britain’s arbitrary political and legal conduct, the founders wanted a text that would clarify the roles of the federal government and prevent the kind of abuses they had experienced. The written Constitution was designed to permanently explain what the federal government was to be, what it could do, and what it could not do.

To that end, the founders drafted a text that assigns a relatively small number of functions to the federal government. It does so on the basis of the recognition that God has bestowed upon man certain “unalienable rights” whose protection and advancement is government’s duty.

The premise of these essential rights is the equality of all men. Abraham Lincoln called this the “central idea” of American political conviction, the one “from which all its minor thoughts radiate.” If God is the Creator of persons, and He has given them all ontological equality before Him, then that same equality should be honored by all men toward one another, as they all possess the same set of fundamental rights. It is the job of government, as noted in the Declaration, to defend these rights—to life, liberty, and the pursuit of happiness.

Without these essential rights, justice wilts. And, as Supreme Court Justice Joseph Story put it in his masterful 1833 Commentaries on the Constitution,

Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected. And if these, or either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed, when violated, by no certain remedies, society fails of all its value; and men may as well return to a state of savage and barbarous independence.

Put more simply, if justice is not grounded in dependably permanent laws that themselves are grounded in the Constitution, all of our rights become matters of any given jurist’s, president’s, or legislator’s whim.

The Application of the Constitution in Public Life

Consider Abraham Lincoln’s address at the Cooper Union in 1860. Although it is an undeniably powerful speech, at times it reads like a term paper examining the framers’ views of federal authority. Lincoln’s premise is that the Constitution’s drafters believed that the federal government had the authority to prevent slavery in properties owned by the federal state.

But, one might ask, if the original meaning of the Constitution were unimportant, if it could simply be reinterpreted according to the whims of a given judge, a given Congress, or a given generation, why worry about what the framers said and did concerning the expansion of slavery? The premise of what arguably was Lincoln’s greatest speech—other than the Gettysburg Address—seems irrelevant, even pathetic, in the light of today’s positivist jurisprudence.

It was Lincoln’s respect for the Constitution that drove him to enact the Homestead Act in 1862, which “proposed the selling off of vast tracts of federally owned land to homesteaders at fire-sale prices.” As historian Allen Guelzo notes:

The Homestead Act was, in modern terms, the greatest privatization scheme in American history. Yet it is based upon the same premise as the railroad legislation and the ‘land-grant’ colleges: that government may indeed have a role in the life of citizens by encouraging and promoting entrepreneurship and ownership.

Lincoln understood that such a role was limited by the Constitution. Thus, the Homestead Act did not involve state lands, establish new federal agencies, or pick “winners and losers” in the private sector. It simply opened up land (over which the federal government had authority) to opportunity for private risk and, consequently, prosperity that Americans would create for themselves.

An analogous modern example is the charitable deduction one can subtract from his federal income tax. This policy encourages citizens to donate to private charities. By removing the onus of responsibility from the government, it encourages a thriving civil society—without overextending the federal government’s realm of authority.

It is this kind of principled constitutional application that remains needed today.

Warring Views of the Constitution

Conservatives view the Constitution’s restraints and guarantees with relief and appreciation: they prevent the state from invasive and exorbitant actions while encouraging “ordered liberty” in all spheres of life. Contemporary liberals, on the other hand, often regard this understanding of the Constitution with alarm. The many restraints imposed by the Constitution can be maddening to those who wish to bring about social transformation that seems unattainable through legislation. Advocates of such change often rely on judicial means to achieve their political ends; to do so, it can often seem expedient to redefine words or creatively interpret the Constitution’s text.

There is a difference between the clarity of meaning and limits of scope in the Constitution and their application to changing circumstances and needs. For example, in the early 1830s, Chief Justice Marshall ruled that the constitutional provision calling for “postal roads” implied that Congress had to pay for the construction of roadways on state land. In other words, the federal government had to pay for the land it requisitioned from the states.

This is a reasonable application of the Constitution to a situation its drafters had not envisioned, and it is consistent with what the framers had in mind. Nowhere in the text does the Constitution suggest that the federal government should pay for the strategic defense initiative or that the prosecutorial offices of the Department of Justice should be ordered as they are; these are commonsense applications of the authority granted by the Constitution to national policy.

However, applications of constitutionally authorized functions are different from deliberate attempts to get around what the Constitution says Uncle Sam can and cannot do and to stretch its meaning into something it was never intended to be. As Jefferson put it, such a view of the Constitution reduces it to “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” These days, it seems that the legislative and executive branches are molding the wax quite well in their own rights.

Extra-Constitutionality as a Pretext for Federal Action

As Jay Cost has observed, “Our government was never meant to accomplish the grand, bold tasks that both sides today believe it should.” Instead, he says,

There is a reason why Congress and the courts, for instance, have had to expand the meaning of the interstate commerce clause almost to the point of absurdity: This is the only way around what was intended to be, and was sold to skeptical citizens at the time as, a limited grant of power.

Extra-constitutionality is the stock-in-trade of the Left: what the Constitution does not explicitly prohibit becomes fair game for federal action. Sadly, many conservatives have fallen into this same mindset.

Some conservatives find in extra-constitutionality sort of an agreeable middle ground between originalism and positivism and between the founders’ Constitution and its degradation into an ever-growing administrative and authoritarian state. For example, viewing the disarray and pain caused by government inaction, they argue that the development and maintenance of a federally-run social safety net (e.g., Medicare, Social Security, Medicaid, food stamps, etc.,) not only is appropriate for government but is constitutionally acceptable. They claim that the social fabric is too fragile for the recreation of institutions now seen as intrinsic to the job of Uncle Sam, and that such change is too radical to be politically viable. Extra-constitutionality becomes the pretext for doing all kinds of things the Constitution does not specifically forbid.

If the best conservatives can say is, “We’re just like the other guys—only not as much,” we should close up shop. We must never be at peace with bloat, and we must not accommodate the growing behemoth that is the federal government.

In a scathing 2005 editorial, the Washington Post called out conservatives for their pale and persistent imitation of those they claim to disdain.

The nation is at war. It faces large expenses for homeland security. It is about to go through a demographic transition that will strain important entitlement programs. How can this president -- an allegedly conservative president -- believe that the federal government should spend money on the Red River National Wildlife Refuge Visitor Center in Louisiana? Or on the Henry Ford Museum in Michigan? The bill Mr. Bush has signed devotes more than $24 billion to such earmarked projects, continuing a trend in which the use of earmarks has spread steadily each year. Remember, Republicans control the Senate and the House as well as the White House. So somebody remind us: Which is the party of big government?

We cannot fight every battle simultaneously, but we should never abdicate principle for the pottage of illusory political peace. That includes ludicrous expansions of the federal state just to calm roiling political waters.

Some battles are more important than others. Ending elective abortion is more urgent than reshaping Social Security. The precedence of human personhood over constitutional and fiscal reform should be obvious. But we should never surrender our arguments or fail to make them in a compelling and appealing way.

You never win an argument you surrender or fail even to make. If something is true, it is worth advancing, even in the face of overwhelming opposition. This requires discretion and, as noted immediately above, a healthy sense of priority, but simply acceding to the political zeitgeist is not an option for conservatives.

Rob Schwarzwalder is Senior Vice President of the Family Research Council. 

 

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