Lincoln Caplan struggles to understand constitutional conservatism:
The phrase is used mainly in opposition: against health care reform; against the General Motors bailout; against President Obama’s policies. A year ago, conservatives focused on the gravity of economic problems. This election, their concern shifted to the danger represented by solutions….
The anger felt by those who favor constitutional conservatism is potent. Call the slogan vague. Call it arrogant. It would be shortsighted to dismiss this increasingly used rallying cry.
Caplan follows up with some nonsense about “We the people,” equality, and the arrogance of believing we know what the Founders would think about contemporary political questions. But constitutional conservatism is quite simple, really. It is rooted in the idea that we are governed by a written Constitution that lists the few, specific powers delegated to the federal government. If there is no express grant of authority in the Constitution, the federal government doesn’t have the power to do it.
We need not conduct seances with the Framers when can consult the plain text of the Constitution and see which powers have been delegated to the federal government. This is not to suggest there are no interpretive difficulties whatsoever. But the Constitution is generally pretty clear in what powers are enumerated. Article 1, Section 8 isn’t exactly rocket science. And while this may be a radical concept to the New York Times, it was once a pretty mainstream view that if something isn’t listed in that section of the Constitution, Congress has no power to legislate on it.
Granted, the phrase “constitutional conservatism” can seem vague when it is appropriated by people who are only concerned with enumerated powers or the Tenth Amendment when Democrats are in power. I’d very much like to see how the incoming House speaker squares his support for the manifestly unconstitutional No Child Left Behind with his new constitutional standard. But it is a sign of progress when even Republican leaders and the New York Times feel the need to discuss, however incompetently, the idea that the federal government is supposed to be limited by the Constitution.