There’s a connection between the Prop 8 trial and my column today on the main site. Liberals like to argue, as William Brennan did, that when conservatives ask for the constitutional justification for a federal policy, they are “arrogantly” enlisting the Founding Fathers to their side of a contemporary policy dispute. But it is actually constitutional liberals who tend to argue that an evolving understanding of the Constitution — sometimes invoking particular Framers, more often by waving around certain phrases like “general welfare” and “equal protection” — mandate their policy preferences.
Serious constitutionalists believe the Constitution has a meaning independent of whatever the politicians or judges of the day personally believe. That meaning is instead based on what the people who wrote the original text thought they were writing and, more importantly, what the ratifying public thought it was ratifying. So when there is doubt about the meaning of the plain text of the Constitution, these — rather than our personal policy preferences — ought to be the things we look at. Otherwise, there is no point in having a written constitution.
This isn’t to say that conservatives don’t ever engage in “results-based” constitutional arguments. I even think results-based arguments are fine up to a point. Liberals are quite right to find strict adherence to the Constitution constraining of their political vision. Conservatives ought to understand that strict adherence to the Constitution would produce a government much more to their liking (although most self-described conservatives plainly don’t espouse strict constitutionalism). But those policy preferences don’t dictate what the Constitution itself means.
The so-called conservative approach to interpreting the Constitution imposes limits on federal decision-makers, as the Constitution was intended to do. The liberal approach empowers those decision-makers to take stray phrases in the Constitution and read into them their own beliefs,which they can then foist upon the American people through the exercise of raw judicial power. People on both sides often strain to interpret the Constitution in ways that will allow their side to do whatever they want anyway. Compared to this, “constitutional conservatism” doesn’t seem very arrogant after all.
