Our Unsettled Constitution

I often point out to students that several debates that moved outside the mainstream of American politics for most of the second half of the 20th century (or longer) have reentered or are on the verge of reentering the mainstream today. For example, yesterday in my U.S. Constitutional Law (POLS 4130) class, we talked about Jacobson v. Massachusetts (1905), a case in which the U.S. Supreme Court declared the U.S. Constitution does not bar states from enacting mandatory vaccinations in order to promote public health. Of course, mandatory vaccinations have once again become a hotly politicized issue in recent years, although this has not yet resulted (as far as I know) in a new round of constitutional litigation. Another example is the call for repeal of the 16th Amendment (under specified conditions) in the 2012 Republican Platform. Similarly, the Tea Party has endorsed repealing the 17th Amendment. Yet another example, as Sandy Levinson has pointed out, is the reemergence of serious arguments over the constitutional right of states to nullify federal laws (once thought long settled by Cooper v. Aaron in 1958 if not Andrew Jackson’s 1832 “Proclamation Regarding Nullification”) and even to secede (once thought long settled by the Civil War). Still another example is Rand Paul’s insistence during his successful 2010 campaign for the U.S. Senate that he rejected the Supreme Court’s  unanimous 1964 opinion in Heart of Atlanta Hotel v. U.S. that the Commerce Clause of Article I, Section 8 authorizes Congress to outlaw racial discrimination by certain kinds of privately owned businesses (as Congress did with the Civil Rights Act of 1964). (I could also point to various  other proposals for radically amending the Constitution or drafting an entirely new constitution but that do not yet seem to be on the verge of entering the mainstream of political debate. That said, here are some examples if you are curious.)

My point in mentioning all this in class is to illustrate how the nature and meaning of the Constitution is never really settled. We have moments of relative consensus on certain issues, but you never really know which issues, long thought settled, will reemerge as objects of debate in response to changes in social conditions, intellectual developments, political movements, etc.  And I think a defining characteristic of our time is that an unusually broad array of fundamental questions about the constitutionality of decades-old political-institutional “settlements” are increasingly being raised and debated within the political mainstream.

This was very much on display in a recent exchange among self-described “conservative” opinion leaders over the constitutionality of the welfare state–i.e. much of what the federal government has done since the New Deal era. It started with Charles Krauthammer’s appearance on The Daily Show with John Stewart in which he magnanimously praised “the great achievements of liberalism — the achievements of the New Deal, of Social Security, Medicaid, Medicare.” Krauthammer said this in the course of defending what he contends is “true conservatism,” which, he says, is supportive of those “great achievements” but only concerned with keeping them sustainable into the future.

This prompted Andrew McCarthy to argue that Krauthammer’s “conservatism” is no such thing. Rather, it is simply the “moderate statism” of the “Republican establishment” that “‘is more sympathetic to Obama’s case for the welfare state than to the Tea Party’s case for limited government and individual liberty.'”  Importantly, McCarthy did not simply claim that true conservatism is opposed to the welfare state. He went further to insist that it is unconstitutional:

[C]onservatives revere an enriching cultural inheritance that binds generations past, present, and future. It obliges us to honor our traditions and our Constitution, preserve liberty, live within our means, and enhance the prosperity of those who come after us. The welfare state is a betrayal of our constitutional traditions: It is redistributionist gluttony run amok, impoverishing future generations to satisfy our insatiable contemporaries…

This, in turn, led Conor Friedersdorf, a third self-proclaimed “conservative,” to offer an extended rebuke of the views expressed by McCarthy, whom he refers to as more of a “fundamentalist for originalism” than a true “conservative.”

You’d think, given the totality of McCarthy’s positions, that “constitutional conservatism” is an end in itself. It isn’t. Advancing life, liberty, and the pursuit of happiness—that is the end. I, like many conservatives, believe that for the most part those ends are best advanced by working within the constitutional framework. Like many liberals, I also believe that slavery and Jim Crow were such abominations that, if the choices were to strictly construe the constitution or to free the slaves and end Jim Crow, to hell with originalist notions of states rights.

What does that have to do with McCarthy’s argument? He is too enamored of the heuristic that what’s constitutional is liberty-enhancing and what’s unconstitutional is liberty-destroying. It’s a good heuristic, but it doesn’t always hold.

Arguing with him, I normally point out why I think that his expansive views of executive power betray Madison’s vision. Today let’s imagine, for the sake of argument, that he has been right all along: that strict adherence to the Constitution really does permit secret kill lists, torture, massive surveillance, and indefinite detention; and it really does prohibit, say, Social Security and Medicare.

Even if that were true, it would not change the fact that the national-security state and its open-ended concentration of unaccountable power poses a far greater threat to liberty than federally bankrolled social-welfare spending (even if you think, as I do, that the spending could be improved upon).

… The Constitution ought to play a prominent role in our politics. But I’d like to see McCarthy construct an argument for his favored policies without any mention of or recourse to the document. Perhaps that would make it clearer that suspending due process puts a country farther along the road to serfdom than old-age pensions.

I say that his position is not conservative because, while conserving our constitutional design is certainly a coherent part of a conservative approach to governing, McCarthy isn’t proposing to conserve something that still exists—rather, he is proposing that we take an approach to social-welfare policy that hasn’t been tried since the early 1930s and apply it to the modern economy: a radical change, whatever one thinks of it. The radicalism and unpredictability of what might happen next doesn’t necessarily make him wrong. But conservative is a weird word for it. . . .

Regardless of one’s views on this normative debate, as a factual matter, I think it’s safe to say that the Constitution–specifically, the debate over its fundamental nature and meaning–is playing and will continue to “play a prominent role in our politics,” and that this means knowledge of constitutionalism is essential for understanding contemporary politics.

(On that note, I highly recommend taking courses offered by the Political Science and History departments on American constitutionalism — usually under the title of “constitutional law” and/or “constitutional history”.)