Cafeteria Constitutionalists - The American Spectator | USA News and Politics
Cafeteria Constitutionalists

Last week, in my inbox appeared an invitation to an event sponsored by a major Beltway liberal organization. They were putting on a talk about the dangers of the Tea Party subtitled “The conservative effort to make everything unconstitutional.”

In selling the shindig, my would-be hosts trotted out all the golden oldies made famous in Ted Kennedy’s slanderous speech about Robert Bork. “Justice Clarence Thomas,” for example, “would strike down the national minimum wage and the ban on whites-only lunch counters.” Yes, I’m sure Justice Thomas is itching to legally exclude himself from the Silver Diner.

That’s enough to convince me that my Constitution Day would be more profitably spent watching Boogie Nights than attending this particular teach-in. But there were a few more eye-catching nuggets from the invite, especially this: “There is an alternate universe where most of the Twentieth Century violates the Constitution — and a growing number of lawmakers live in it.”

The idea that the Constitution creates a central government with a few, defined powers is always treated as new and novel, a fairly recent innovation gleaned not from the Federalist Papers but from the rantings of radio talk show hosts and the writings of RJ Rushdoony. By contrast, the notion that we have a federal government with virtually unlimited regulatory power and welfare functions is treated as mainstream and normal.

Talk about an “alternate universe.”

At the risk of accusations that I want to repeal indoor plumbing and restore the powdered wig to its proper place in American fashion, let’s be upfront about it: many limits on federal power that had largely survived the first 150 years of the republic began to erode in the 1930s. There is a sense in which the 20th century was as good for constitutionally limited government as the 1990s were for disco.

Needless to say, liberals find this point of view much more malevolent than the tastes of those who spent the Clinton years pining for more KC and the Sunshine Band airplay. “In their vision,” my anti-Tea Party save-the-date card continues, “everything they oppose is forbidden, and much of what they support is mandatory.”

Pot, kettle; rubber, glue. One might be forgiven for thinking that decades’ worth of liberal jurisprudence on abortion, religion, capital punishment, affirmative action, and a whole host of issues suggest at least a smidgen of a tendency to invoke the Constitution as an all-purpose guide for the judicial canonization of the Democratic Party platform.

After all, which method of interpreting the Constitution is more susceptible to politicization — attempting to discern what the public thought they were ratifying or figuring out which constitutional phrases judges can suffuse with magical meaning based on such subjective concepts as evolving standards of decency?

In fairness, though, it should be admitted that many Republicans — regrettably including some who consider themselves conservatives — regard upholding the Constitution as seasonal work. Like deficits, the Constitution matters only when Democrats are in power. Otherwise, it is perfectly fine for the president to wiretap, waterboard, or even wage war without being so sporting as to consult Congress.

Hopefully, Tea Party activists will not be silent the next time a Republican president unconstitutionally aggrandizes executive power. We’ve not been so fortunate with Bush-era peaceniks on the left who barely mustered a peep when the current president, unlike Bush, went to war without congressional authorization. Perhaps Republican wars are forbidden and Democratic “kinetic military actions” are mandatory.

Even so, it is true that conservatives would generally find a country governed by a rigorous interpretation of the Constitution more to their liking than liberals would. Therefore, it is not strange that conservatives occasionally admit the fact that numerous liberal policies are constitutionally dubious. What is downright bizarre is how many conservatives have traditionally been reluctant to say anything of the sort.

In fact, even now many high-profile conservatives basically agree with liberals that the Constitution means whatever the Supreme Court says it means. The redoubtable Jennifer Rubin expressed concern when conservative academic Robert P. George implied at a recent forum that Republican presidential candidates ought to have their own ideas about the elected branches’ constitutional prerogatives concerning abortion policy.

“Dwight D. Eisenhower didn’t ignore Brown v. Board of Education,” Rubin wrote. But doesn’t that example tell us something about the Court’s mastery of the Constitution in Plessy v. Ferguson? A constitutional conservatism that sees no alternatives between blindly following the courts and ignoring them entirely doesn’t give liberals much to worry about.

Yet plainly liberals are worried. They profess to be so not because they dislike the Constitution but rather because the Tea Party’s “imagined version of the constitution cannot be squared with the document itself.” There is a long liberal tradition of praising the Constitution as a “living document” while asserting that its substantive limits on federal regulatory and welfare powers are deader than disco.

Happy Constitution Day.

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