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.