Friday, January 7, 2011

Conservative Constitutionalism

You can decide for yourself whether House Republicans' decision to open the new congressional session with a recital of the Constitution was an inspiring display of civic piety or a degrading political stunt. But it’s a sure sign that movement conservatives are carrying a new banner into their running battle with liberals. Here’s Charles Krauthammer giving it an attractive name ("constitutionalism") and describing the ideological impulse that moves conservatives to raise it (my emphasis):
“Americans are in the midst of a great national debate over the power, scope and reach of the government established by that document. The debate was sparked by the current administration's bold push for government expansion - a massive fiscal stimulus, ObamaCare, financial regulation and various attempts at controlling the energy economy. This engendered a popular reaction, identified with the Tea Party but in reality far more widespread, calling for a more restrictive vision of government more consistent with the Founders' intent. 

“Call it constitutionalism. In essence, constitutionalism is the intellectual counterpart and spiritual progeny of the ‘originalism’ movement in jurisprudence. Judicial ‘originalists’ (led by Antonin Scalia and other notable conservative jurists) insist that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries. Originalism has grown to become the major challenger to the liberal ‘living Constitution’ school, under which high courts are channelers of the spirit of the age, free to create new constitutional principles accordingly.

What originalism is to jurisprudence, constitutionalism is to governance: a call for restraint rooted in constitutional text. Constitutionalism as a political philosophy represents a reformed, self-regulating conservatism that bases its call for minimalist government - for reining in the willfulness of presidents and legislatures - in the words and meaning of the Constitution."

"Hence that highly symbolic moment on Thursday when the 112th House of Representatives opened with a reading of the Constitution.”
They don’t make conservatives any more lucid and self-conscious than Krauthammer.  So let’s concede that he has put his finger on the ideological impulse animating today’s movement conservatism. Is it an intellectually defensible and civically responsible impulse?

The best way to answer that question, I think, is to appreciate the superficiality of Krauthammer’s proposition that “[w]hat originalism is to jurisprudence, constitutionalism is to governance: a call for restraint rooted in the constitutional text.” That sounds plausible until you reflect on the fact that originalism, at least as Justice Scalia propounds it, and constitutional conservatism, as Krauthammer is propounding it, are designed to restrain different governmental agents: originalism purports to constrain judges from usurping the authority of elected politicians; constitutional conservatism empowers judges (like the Virginia District Court Judge who recently held that the individual insurance mandate is unconstitutional) to constrain elected politicians. That’s about as big a difference as there is.

The differences between originalist jurisprudence and “constitutionalist” political philosophy are just as stark with respect to competing ideologies. Scalia claims that his originalism is a jurisprudential recipe (indeed the only jurisprudential recipe) for strict ideological neutrality. On his view, it was equally deplorable when the Supreme Court intervened in the democratic struggle between conservatism and liberalism on the conservative side with decisions like Lochner v. New York (striking down state regulations on the length of the working day in bakeries) and on the liberal side in decisions like Roe v. Wade (striking down state laws against abortion). According to Scalia, originalism is a judge's way of standing aside so that conservatives and liberals can fight their battles on equal footing in democratic forums.

Maybe you don't buy Scalia's professions of ideological neutrality, but at least he's offering them.  Krauthammer’s “constitutionalism” is an act of naked ideological aggression.  It's conservatives' way of telling liberals that their core political impulses are unfit for democratic forums. As such, it signals a determination on the part of conservatives to put an ideological weapon back into their arsenal that they surrendered 70 years ago and have been congratulating themselves for surrendering ever since.

1 comment:

Mr. Republican said...

Doesn't a liberal who insists that the legal recognition of same-sex marriage is constitutionally required politicize the constitution just as much as Krauthammer's conservative "constitutionalists"? If we conservates are going to get attacked by liberals in the courts, why shouldn't we use them to fight back?