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The Spectacle Blog
In National Review, Ramesh Ponnuru lays out a eminently reasonable explanation of constitutionalism. It's a newly controversial topic, with a number of factors influencing its relevance: the rise of the Tea Party, the constitutionality of Obamacare, and the debates about federalism in the early going of the GOP primary, among other things. Ponnuru defends the idea of a broadly originalist constitutionalism:
Constitutionalism, in short, is simply a special case of respect for the rule of law: the case in which the law in question is the supreme law of the land. The rule of law demands that those who apply the law -- be they judges, sheriffs, presidents, or governors -- apply it faithfully. If those officials can change the meaning of the words, there is no point to having a written law.
There are different types of originalism, and legitimate debate about what counts as originalism. But constitutionalism -- which is, again, to say the rule of law -- entails some sort of originalism. The law has to be knowable, and its meaning has to be fixed at the time of enactment (although, of course, its application may change based on the circumstances to which it applies). Officials who have to interpret the Constitution may or may not err in ascertaining the original meaning of the provisions at issue, or in inferring what norms that meaning implies, or in applying the norms to the legal case or policy dispute at hand. But any authoritative interpretation of the Constitution that departs from plausible understandings of the original meaning is itself a violation of the rule of law. Hence originalism is not merely one interpretive methodology among many.
To put it another way, constitutionalism rules out certain courses of action. It means that it is never acceptable for a congressman to vote for unconstitutional, or even doubtfully constitutional, legislation on the theory that the courts will sort it out. Nor can a constitutionalist judge treat the Constitution as simply raising questions -- e.g., what is the right relation of society to the individual? -- to which the judge makes up an authoritative answer. Both are cases of disobedience to the Constitution.
Current liberal-conservative debates about constitutionalism are not so much about jurisprudence as they are about whether officials are bound by the rule of law or a fixed rule of law in the first place, with liberals taking the position that they are not.
The next step for Ponnuru: defining Consitutional Conservatism.
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JP| 9.27.11 @ 1:17PM
All of these "isms" belay the fact that a significant portion of our legal elite do not accept the rule of law. I think its called results oriented law. As long as the elite like the results of the law it is constitutional. Philosophical deconstructionalism now runs so deep in our law schools (the idea that one can never know the real meaning of any simple sentence. Think of O'Douglas' emenations and penumbras), that conservatives have had to build new ways of saying the same things.
Rogue Elephant| 9.27.11 @ 2:11PM
The turning point for our Constitution came in the Revolution of 1937, when the New Deal Court abandoned prior economic liberties jurisprudence (authorizing untrammeled economic regulation), separation of powers (empowering the regulatory state), and federalism (enlargng the commerce clause). Yet, even as the progressives abandoned prcedent, they demand adherence to their precedents.
The weakest branch became the strongest - a rogue branch that demands "judicial independence" (freedom from interference by the "political" branches). However, the judicial branch is a political branch (albeit a "slow" one, that is designed to respond less quickly than the legislative and executive). The court's ever growing willingness to legislate on difficult social/economic issues threatens its own independence, and worse, threatens its own credibility. And when the court loses that credibility completely, it threatens not only the rule of law, but the stability of our government.
Stare decisis, the idea that courts must stand on precedent, has (at least for the Supreme Court) lost its force. And progressive judicial activists have themselves to blame for it. Given that, conservatives should have little compunction in rolling back the errors of the Revolution of the 1937, and restoring limited government and our Constitutional liberties. Otherwise, our very Republic will be lost.
Dan Phillips| 9.27.11 @ 6:27PM
Originalism is clearly an essential element of constitutionalism, but that originalism must lead you to embrace the hard concept of enumerated powers or it is no originalism at all. (Both the Federalists and the anti-Federalists concurred with enumerated powers so it really isn't open for dispute.) Does self-proclaimed constitutionalist Ponnuru support enumerated powers? Does National Review for which he writes? Don't make me laugh. NR is much more likely to call someone who supports enumerated powers a fringe kook than it is to advocate for the position itself.
Dan Phillips| 9.27.11 @ 6:37PM
For one example, NR and Ponnuru have recently been whining about all the conservative hostility toward the Fed. So I guess "constitutionalist" Ponnuru thinks there is an enumerated power that authorizes the Fed? What an embarrassment to authentic conservatism NR and Ponnuru are.
William| 9.28.11 @ 3:03PM
I will read Mr Ponnuru's article, but I have some reservations based on this report. I agree that the rule of law is central to our system of government. But there is a difference between laws reflected in statutory enactments and constitutional law. The former are directed to more specific, concrete situations and can readily be changed. The Constitution is more general, laying out a framework for government for the indefinite future, and it is difficult to amend.
This means that the Constitution necessarily leaves a lot of issues uncertain. Those who drafted the Constitution and governed the country in the first two decades after it was adopted, argued bitterly about what it meant. Now, two centuries later and in a global and much more complex world, we cannot expect that the Constitution has miraculously become certain in its meaning.
I am of the view that the Court should be as true as possible to the original meaning of the Constitution and apply it regardless of consequences or the personal views of judges. But, speaking as a lawyer, I understand this is far more difficult than it sounds. There are issues in which the outcome necessarily depends on the judgment and good faith of the justices.
It is here where I think the Court fails us. While I believe the justices on the left are more at fault, those on the right are not faultless. What is missing is an adherence to fundamentals of jurisprudence: Judges should be affirmatively non-political and objective (that is, they should actively seek to put aside the human biases they have); they should have great respect for their limited role in our system of government, and they should exercise what is commonly called judicial restraint. When you can predict the votes of the justices by the politics of their appointment, these principles of jurisprudence are being disregarded. And as I say, I think the justices on the right of the court have also been guilty of this transgression at times.