Thursday, February 18, 2010

Constitutional Conservatism

Yesterday, with great fanfare, an assemblage of movement conservatives issued the “Mount Vernon Statement.”  In at least one respect, it’s a strange document. It consists mostly in an anodyne recital of constitutional principles. Who would dispute that the Constitution: “applies the principle of limited government based on the rule of law”; “honors the central place of individual liberty in American politics”; or “encourages free enterprise”? I suppose liberals might get their back up a little at the suggestion that the Constitution “supports America’s national interest in advancing freedom and opposing tyranny” or “informs the conservative defense of family, neighborhood, community and faith.” But in each case, the verbs I’ve italicized are too weaselly to make the proposition worth contesting. On its face, The Mount Vernon Statement isn’t an ideologically provocative document.

The strange thing is that accomplished ideological infighters like Ed Meese, Grover Norquist and Richard Viguerie clearly think that they’re lending their names to a conservative manifesto. Evidently, they’ve persuaded themselves that conservatives, and conservatives alone, are the guardians of a constitutional order because the Constitution is a conservative document (my emphasis).

"Each one of these founding ideas is presently under sustained attack. In recent decades, America’s principles have been undermined and redefined in our culture, our universities and our politics. The selfevident truths of 1776 have been supplanted by the notion that no such truths exist. The federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant. . . .

"The change we urgently need, a change consistent with the American ideal, is not movement away from but toward our founding principles. . . .

"If we are to succeed in the critical political and policy battles ahead, we must be certain of our purpose.

We must begin by retaking and resolutely defending the high ground of America’s founding principles."
There’s nothing unusual about accomplished partisans tying their agenda to, and portraying their political opponents as subverters of, widely embraced civic ideals. I’m interested in The Mount Vernon Statement for what it says about the evolution of American conservatism. Let’s take up the suggestion by one of the signatories, Kathryn Lopez of National Review, that “[t]he Mount Vernon Statement is . . . meant to be in the tradition of the 1960 Sharon Statement” that was signed by an assemblage of conservatives at William F. Buckley’s Connecticut home. The two documents present an interesting comparison.

The Sharon Statement is an extraordinarily elegant statement of conservative principles. But it portrays those principles as being independent of, and prior to, the constitutional order. The foundation of conservatism, on this view, is the belief in “the individual’s . . . God-given free will,” the indivisibility of political and economic freedom, limited government, the market economy and international communism’s being the principal threat to liberty.

The constitutional order is only commended as “the best arrangement yet devised for empowering government to fulfill its proper role.” Unlike The Mount Vernon Statement, The Sharon Statement affirms the Constitution because in constitutes an institutional framework within which political conservatism is possible. It doesn’t presume that the framework itself is inherently conservative.

That’s a big difference. The Sharon Statement takes the 1960 constitutional order for granted. That was period in which, owing to the constitutional revolution during the New Deal, liberal economic regulation was presumptively constitutional. But it was before a series of Supreme Court decisions inserted the judiciary into the middle of the culture wars by constitutionalizing questions of sexual morality. In 1960, it was still possible to regard the constitutional order as a neutral arena for the ideological contest between liberals and conservatives. That’s the sort of constitutional order that Antonin Scalia's jurisprudential originalism is designed to maintain.

The Mount Vernon Statement dispenses with the notion of an ideologically neutral constitutional order. It contests not just the wisdom of modern liberalism, but its constitutionality. In that respect, it recalls the constitutional jurisprudence of the Lochner era. 

I suppose you can’t blame conservatives for trying to put their ideological stamp on the constitutional order. Liberals have been doing that for a long time. But when both sides read their own ideology into the Constitution they'll come to regard every political setback as an intolerable usurpuation.  That's no way to run a constitutional democracy.

No comments: