Political catch-phrase or principled doctrine?
Penned by our Founding Fathers 224 years ago, the Constitution has long been construed differently by political forces to justify their own political agendas. Conservatives in particular have been active in using this document to advocate for fundamental changes in government policy. Their efforts have culminated with congressional proceedings questioning legislation’s constitutionality, an effort led by Republicans like Senator Mike Lee (R-UT), who told the HPR that “The resurgence of constitutional conservatism has to do with the growth of the federal government.”
The roots of “constitutional conservatism,” the term applied to the GOP’s recent rhetoric, trace back to Barry Goldwater’s emphasis on individuals rather than government as the driver for prosperity. Though Reagan’s smashing electoral success brought this fashion into the norm, today’s conservatives have strayed from Goldwater’s and others’ original intent.
Conservative Discontent
As Peter Berkowitz of Stanford’s Hoover Institution wrote in January 2009, renewed focus on the constitutional question originated with the Republican Party’s immense losses in 2008. The devastating setbacks inflicted on Republicans rallied an ideologically narrow base and fostered new rhetoric. Further, the libertarian sect of the Republican Party had grown discontented with President Bush, whose administration had substantially increased the government’s purview over fiscal matters and civil liberties. Once President Obama began to implement his agenda, conservatives began to rally against a president they viewed as guilty of fundamentally unconstitutional actions. Trevor Burrus, a legal associate at the Cato Institute’s Center for Constitutional Studies, told the HPR that the bailouts were “the main culprit.” Conservatives, unable to defeat the President’s agenda in Congress, attacked legislation on constitutional grounds.
This appeal has manifested in many forms. Presidential candidate and Congresswoman Michele Bachmann (R-MN) has hallmarked her campaign as one motivated by constitutional conservatism, which includes repealing “Obamacare.” The current House, led by Speaker John Boehner (R-OH), mandated that every piece of legislation passed by the lower chamber identify the relevant portion of the Constitution that provides legal legitimacy. Even more, Joe Miller, the 2010 Tea Party-backed Senate candidate in Alaska told the HPR, “In 2010, a number of Tea Party candidates, including myself, self-identified as constitutional conservatives in order to differentiate ourselves from ‘compassionate conservatives’ who nearly bankrupted the country while leading us into wars and nation building.”
Though Miller narrowly lost his election, over the past two years, constitutional rhetoric has become winning vocabulary and spurred a movement that, according to TeaParty.org founder Dale Robertson, has “decided to follow in the footsteps of Gandhi and Martin Luther King” in peacefully accomplishing goals and gaining “the attention of our leaders.” Some, however, are more dismissive. Ian Millhiser, political analyst for the Center for American Progress, tells the HPR, “This notion that the primary purpose of our Constitution is to handicap our national leaders’ ability to solve national problems has been around, and it rears its ugly head every now and then.”
Constitutional Rigidity?
Prominent conservative minds like the late political philosopher Frank Meyer and National Review founder William Buckley promoted a certain constitutional conservatism that, as Berkowitz suggested, is accurately grounded “in America’s founding ideas, and the intellectual coherence of the alliance…between partisans of freedom and partisans of tradition.” Berkowitz adds, “It’s a characteristic…of conservatives to respect the wisdom of the past contained in tradition.”
Nonetheless, as Georgetown professor Jeffrey Rosen suggests, “Citizens disagree plausibly and legitimately as to the meaning of the Constitutional text.” For instance, though many conservatives view universal health care legislation as unconstitutional, there are few who would argue for complete repeal of New Deal programs such as Social Security. Offering a different perspective, Howard Phillips, chairman of the Conservative Caucus and Constitution Party founder, suggests that conservatives “are cautious about the political impact of being comprehensively critical of Social Security.”
Harvard Law professor Richard Fallon notes that, in interpreting our Constitution, those on the “left, right, and center all think that if people knew more about the Constitution then we would have a better polity than we have now.” But, Fallon adds, the “vast majority of what Congress does is constitutional…and these numbers do not vary much from administration to administration.” The political tension over interpreting the Constitution has seen the right challenging what it perceives to be overly expansive legislation and liberals deferring to the vagueness of constitutional wordage. This debate, which Burrus views as revolving around “the very important principle…that the Congress cannot have unlimited power,” is challenged by those who naturally resist against substantial changes. Fallon notes, “The fact that, when Congress does something dramatic of a kind it has not done before, people ask the question of whether or not it is constitutional is not a surprise.”
Gone Astray?
The Tea Party movement, citing the Constitution as the basis for smaller government, has also received considerable criticism. Rosen, when asked about the Republican presidential candidates, argues that hypocrisy exists in that “those same candidates that hope that the courts will strike down health care reform and much of the welfare state…then bash those same courts for judicial activism.” Rosen also critiques the conservative employment of constitutional arguments, saying, “There is too quick a tendency on the right to run to court to reverse their political defeats by invoking the constitution.”
Neither has the constitutional issue reconciled the conservative and libertarian GOP wings. Berkowitz says, “I don’t think there has been a philosophical meeting of minds of the two conservative camps.” Indeed, one might well wonder whether the constitutional conservatism espoused by today’s Republicans has strayed from the roots originally examined by Meyer and Buckley, and put into practice by Goldwater and Reagan.
As the pseudonymous W.W. wrote in The Economist in June 2011, liberals, when speaking about the constitutional movement, often hint “at a far more radical agenda than meets the untrained eye.” Yet, some like Joe Miller advocate for this radical approach, saying, “Time is not any patriot’s ally in this fight. Moderation in advocacy and delay in reform will almost certainly fail in its attempt to save the Republic.”
What the Future Holds
By Robertson’s estimation, “The job of the Tea Party is far from over because we have a lot of work to do before we are able to bring back a constitutional form of government.” Senator Lee adds, “What happens in 2012 in the direction of constitutional conservatism is going to make what happened in 2010 look like a Sunday picnic.” However unsettled the debate over the significance and intent of constitutional conservatism may be, conservatives have found a winning electoral message, even while legal scholars anguish at its usage.
Tom Gaudett ’14 is the Circulation Manager. Simon Thompson ’14 is the Interviews Editor.
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