Lincoln Caplan is confused. He has been given
space on the prestigious New York Times op-ed page to
explore “the meaning of constitutional conservatism.” Yet though he
struggles mightily, Caplan ultimately comes up short in his quest
for understanding.
“The phrase is used mainly in opposition: against health care
reform; against the General Motors bailout; against President
Obama’s policies,” Caplan observes. “A year ago, conservatives
focused on the gravity of economic problems. This election, their
concern shifted to the danger represented by solutions.”
Never mind that many voters adduced that unconstitutional
solutions were in fact causing our grave economic problems. Caplan
finds it odd that anyone would find the federal government owning
an automobile manufacturer, mandating the purchase of health
insurance, or spending vast sums of money on purely local projects
difficult to square with the Constitution. Why can’t the government
make cars or run the health care system if it promotes the general
welfare of “We the people” in our more perfect union?
Caplan invokes the authority of the late Justice William
Brennan. “It is arrogant to pretend that from our vantage we can
gauge accurately the intent of the framers on application of
principle to specific, contemporary questions,” Brennan averred.
But the argument has never been that we can know with certainty
what James Madison would think about the stimulus package (though
the Federalist Papers certainly give us a clue). The Constitution
itself specifies what activities the federal government is
authorized to undertake.
The U.S. Constitution is essentially a list of things the three
branches of the federal government are permitted to do, with a few
activities specifically prohibited. The entire American system of
government is premised on the idea that the people delegated
defined, specific powers to Washington. That doesn’t mean there are
no problems of interpretation. But the doctrine of enumerated
powers is basic.
Now you can edit Legal Affairs and write for the
New Republic, the New Yorker, U.S. News and
World Report, and the New York Times while guided by
the apparent belief that these basics are incoherent mumbo-jumbo.
There have been disagreements about the size and scope of the
federal government since beginning of the Republic. But the notion
that the Constitution imposed substantive, rather than merely
procedural, limitations on that government was for a long time
fairly uncontroversial.
As recently as the early 20th century, the consensus was that it
would require a constitutional amendment to give the federal
government the power to ban the sale, manufacture, and
transportation of alcoholic beverages. In 1933, it took a second
constitutional amendment to repeal this power. Today, if Washington
were inclined to ban Demon Rum it would be justified under the
pretext of regulating interstate commerce.
Consider the constitutional amendments that ended slavery.
Slavery had a much bigger impact on interstate commerce than most
things the federal government today claims the power to regulate
under the interstate commerce clause. Yet even people who in the
context of those times held fairly expansive views of the role of
government did not think the interstate commerce clause gave the
federal government the power to end the massive human rights abuse
of slavery.
The slavery example proves that the Constitution itself was not
perfect. That’s why the Framers included an amendment process. But
it also shows that even our political class once took seriously the
idea that their actions must be authorized or justified by
constitutional text to be legitimate. Caplan treats this belief as
a form of madness.
Why, Republican Sen.-elect Mike Lee of Utah apparently “views
much of what the federal government currently does as
unconstitutional.” When Nevada Republican John Ensign said the same
thing during his unsuccessful 1998 campaign against Harry Reid, he
was accused of appealing to the “black helicopter” crowd.
Similarly, Caplan appears to think it bizarre that John Boehner
would want “every bill to identify the part of the Constitution it
rests on.” When then Attorney General Ed Meese made
constitutionalist arguments during the Reagan administration,
liberal Supreme Court justices rebuked him and the “news media
judged that the justices got the better of the attorney
general.”
But this is hardly surprising. For decades, the federal
government has ignored the non-procedural parts of the
Constitution. Instead of treating it as something that limits the
government’s power, the Constitution has been reduced to Robert’s
Rules of Order. Even many of the Republicans who speak loudest
about “constitutional conservatism” will be perfectly content to
engage in unconstitutional activity once they, rather than the
Democrats, wield power.
When the Iraqis were haggling over their new, post-Saddam
constitution, wags rightly joked: “Let’s just give them ours. We’re
not using it anymore.”
Far from being an obstacle to solving our economic problems,
fidelity to the Constitution would have prevented many of them. If
the federal government operated within constitutional constraints,
we would not stand on the brink of national bankruptcy. Our
currency would not be debased. The federal government would not be
inflating real estate or investment bubbles. Taxes would be much
lower yet there would not be deficits as far as the eye can
see.
Instead future generations will be saddled with obligations they
never freely chose, struggling to pay for unconstitutional programs
that politicians (and, to be frank, many of their constituents) can
never summon the courage to reform. Freed from the chains of the
Constitution, we are instead enslaved by what Belloc called the
“servile state” — a state we cannot even pay for.
“The anger felt by those who favor constitutional conservatism
is potent,” Caplan warns at the end of his column. Let’s hope so.
Given the shambles we find ourselves in, it ought to be.
