Constitutional Conservatism: Its Meaning and Its Future

Whatever the results of the 2016 presidential election, the process has raised hard questions about conservatism’s future in America. Whether it is social conservatism, fiscal conservatism, or national-security conservatism, important setbacks for these causes have taken place across the board in the past nine years. Today the United States is less socially cohesive, less economically free, and less internationally secure than in 2007.

Much of this state of affairs owes something to a particular political mindset that insists upon a very active—in fact, activist—role for the federal government, taking the form of extensive top-down intervention into the political, social, and economic order. The objective is to exert more control over the free choices of individuals, associations, and communities, invariably in the name of a leveling egalitarianism.

Such a viewpoint is difficult to reconcile with the roots of the American experiment. It is no coincidence that those in the business of “fundamentally transforming” America rarely make more than token reference to the people whose ideas shaped documents such as the Declaration of Independence, the Constitution, and the Bill of Rights. Drawing attention to these ideas, I’d suggest, should be at the core of what some have called “constitutional conservatism”—a project with great potential for placing the idea of ordered liberty and its associated moral, political, and economic apparatus back at the center of American public life.

More than Words on Paper

In a September 2015 interview, political scientist Charles Murray stated, “The American project, as originally defined, is dead.” One need not accept that stark claim to recognize that impeding (let alone reversing) America’s continuing drift toward an ever-expanding administrative state, rampant crony capitalism, shrinking protections for religious liberty, and a public discourse dominated by sentimental humanitarianism, populist demagoguery, and even socialist rhetoric is not, to put it mildly, going to be simple.

One of America’s advantages is that many of its citizens remain attached to the United States’ distinct set of founding texts: documents unequivocally designed to promote not only limited government but also particular political ideals. Such texts and principles can serve as reference points for assessing the extent to which America is being faithful not only to its explicit commitment to limited government but also to the ends served by constitutionally limiting state power.

Making a constitution is not an exercise in spontaneity. In De Laudibus Legum Angliæ (1485), English jurist Sir John Fortescue pointed out that new regimes usually emerge following the overturning of a previous political order. America’s 1787 Constitutional Convention owed much to the need to respond to the Articles of Confederation and Perpetual Union’s manifest inability to adequately resolve conflicts between the states, a looming public debt crisis, and some Americans’ desire for a stronger central government.

It would also be naïve to imagine that the process of establishing America’s constitutional order was somehow immune from the impact of specific agendas. In We the People: The Economic Origins of the Constitution (1958), the late Forrest McDonald portrayed the many economic interests that exerted different influences upon the formation of America’s Constitution. Yet in this and other works such as Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985), McDonald also illustrated the variety of philosophical ideas in play, many of which had little to do with the specific economic concerns of particular individuals or groups.

Consensus amidst Disagreement

In an 1834 letter to William Cogswell, James Madison commented that the Constitution was “the work of many heads and many hands”—and those heads disagreed about many questions. These ranged from the specific powers to be assigned to the federal government to the charged issue of slavery and deep dissension about the type of republic that America should be. Some envisioned an agrarian order, while others believed that America’s future lay in becoming a commercial society.

Such variations among the Founders have led some to suggest that the project of constitutional conservatism cannot coalesce around a relatively stable set of political commitments. That suggestion, however, may underestimate the degree to which many Founders agreed about significant issues. One position they all shared was a strong conviction about the importance of life, liberty, and property. While this may sound vague, familiarity with their writings makes it hard to imagine any of the Founders suggesting that the government treat human life lightly, or that liberty should be subordinated to forcing equality of outcomes, or that private ownership could be regulated to the point of being reduced to mere form.

These views were themselves underpinned by a range of philosophical positions, which, for all their differences, held many things in common. As Adam Seagrave has recently observed, the Constitution was developed in a context in which various natural-law and natural-right doctrines were known and widely affirmed by the text’s drafters and many Americans of the time.

Other important common influences that shaped many of the Founders include Blackstone’s Commentaries, Montesquieu’s Spirit of the Laws, John Locke’s Second Treatise, Scottish Enlightenment thinkers such as Francis Hutcheson, Protestant natural law scholars, and the law of nations tradition. Then there was the influence of classical republican thought and specifically Christian ideas. Again, the fact that these minds and sources were not in accord about some subjects should not obscure the fact that they also had much in common. After all, they all belong to the Western canon.

Liberty under Law

So how might attention to the political and philosophical underpinnings of the American regime, formally ratified in 1789, shape constitutional conservatism’s contribution to contemporary public debates?

First, these roots remind us that constitutional conservatism cannot merely be concerned with general initiatives, such as reinvigorating federalism by taking the Tenth Amendment seriously. Such measures are important, but their effects will not last unless they go hand in hand with promoting the ideas underlying America’s constitutional order—over and against those who prefer to see the Constitution in positivist terms or who desire to ground it upon, say, progressive or Rawlsian premises.

Constitutional conservatism thus involves reminding Americans of the Constitution’s purpose, in light both of what it says and of what its authors had in mind. As the debates between Alexander Hamilton and Thomas Jefferson during the first Washington Administration illustrate, there was immediate disagreement even among America’s Founders about how the Constitution’s enumerated powers should be understood. Nevertheless, it is not hard to identify a number of political ideals that the Constitution seeks to realize.

Perhaps the most prominent of these was a broad effort to establish liberty under law within the context of a specific sovereign nation. The Constitution’s drafters were not simply trying to create a power map that identified which persons and institutions may do what. They sought to establish an order that limited the exercise of authority by fallible and often weak human beings who, by definition, cannot be trusted with excessive political power. This deliberate impeding of potential despotism is the point of constitutionally limited government—not, for instance, the realization of an equality of economic conditions, outcomes, or even starting points through a technocracy. That’s why the Constitution seeks to balance and separate executive, legislative, and judicial powers, and why it does not decree the establishment of, say, a guaranteed minimal income.

All of this stands in stark contrast to Progressive, New Deal, and Great Society visions of the federal government’s role, most of which are underpinned by a certain confidence that humans can be perfected in this world through state action. But what also distinguishes such programs from constitutional conservatism is the latter’s emphasis on other themes that pervade the Founders’ writings and bolster the end of liberty under law. These themes include the importance of mediating institutions, the regular evocation of the language of virtue, a strict distinction between desires and rights, and an understanding that the equality that matters most in societies that take liberty seriously invariably arises from the rule of law.

To be sure, if constitutional conservatism is to become a significant force in American public life, it can’t try to recreate a late eighteenth-century world. Nor should it fall into the trap of mistaking limited government for weak government. The rule of law doesn’t exist if the government cannot enforce its provisions. Constitutional conservatism also allows room for the workings of prudence within a framework of principles. Constitutions can’t, and aren’t supposed to, anticipate every eventuality.

Nevertheless, constitutional conservatism reminds us that (1) not all that is new in the world of ideas is good and reasonable; (2) there is much wisdom in the thought of the American founding generation, knowledge that continues to matter today; and (3) statesmanship in America involves working within a context that respects that knowledge. From this standpoint, at a time when many Americans seem susceptible to populist and socialist siren calls, constitutional conservatism’s relevance for the cause of liberty under law could not be greater.