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Calling all con-cons: Revive constitutional conservatism

By W. James Antle III
web posted May 19, 2003

We are living in a season of conservative infighting and navel-gazing. Numerous factions, groups and sub-categories within the larger right have emerged to describe everything from ideological and philosophical distinctions to demographic or even purely cosmetic differences. The paleoconservatives, or paleocons, and the neoconservatives, or neocons, are at war over the true meaning of conservatism. There are more of flavors of conservatism than of ice cream at Baskin Robbins: compassionate conservatives, metropolitan conservatives, national greatness conservatives, crunchy-cons, evol-cons, theocons, rock 'n' roll conservatives, South Park Republicans, big government conservatives. Some of these labels are worn proudly; others are pejorative terms resisted by everyone except those who use them to describe ideological opponents.

Conspicuously missing from this list are con-cons or any other cute, commonly used shorthand for constitutional conservatives. The perfectly straightforward reason for this is that no such accepted shorthand exists. Constitutional conservatism does not elicit impassioned feature articles pro or con in the right's major periodicals. Constitutionalism almost seems spent as an effective political force.

It used to be taken for granted that one of the most important objectives, if not the central task, of modern American conservatism was conserving the constitutional republic of our Founding Fathers. This meant that the United States should have a limited federal government with its relatively few powers defined by the U.S. Constitution. The liberal welfare state constructed during the New Deal was to be opposed because of its effects on the people's character, the free enterprise system, private property rights, but not least of all because it expanded the federal government beyond its constitutionally enumerated powers. All conservatives were constitutional conservatives.

Today, few are. Only a handful of Republican members of Congress – stalwarts like Ron Paul, John Shaddegg, Roscoe Bartlett and Jeff Flake – routinely press their colleagues to justify proposed legislation by pointing out where in the text of the Constitution it is authorized. Shaddegg's bill to force them to do so, the Enumerated Powers Act, is stalled. In the policy debates over education, health care and spreading democracy internationally, the constitutional rationale for various proposals is seldom even discussed.

To be sure, the language of constitutionalism is still used in the service of specific agendas. The American Civil Liberties Union presents itself as a defender of the Bill of Rights, particularly the First Amendment. But it also promotes welfare "rights," a perverted view of the establishment clause and racial preferences. In other words, the ACLU believes the welfare state is constitutional, but religious displays in a town square are not. On the right, the National Rifle Association defends the Second Amendment. Yet it rarely is active in Bill of Rights issues other than opposing gun control legislation.

The broad idea that the federal government's powers are limited to those assigned by the Constitution, however, does not have much of a consistent following in contemporary politics. Strict constructionists who receive judicial nominations are described as right-wing "activist judges." When John Ensign first ran for Senate from Nevada in 1998, he let slip that much of what the federal government does is de facto unconstitutional. Critics said he was "playing to the black helicopter set." He hasn't emerged as much of a constitutional conservative since he was elected in 2000. While President Bush has much to recommend him, his administration – which initially tried to argue that Congress did not need to vote on an Iraq war and has given us the USA PATRIOT Act and the Ashcroft Justice Department – has not exactly been a hotbed of constitutionalism.

Of course, the American people today favor a federal government far larger and more involved than the Framers imagined. To call for cutting government down to its constitutional size is to run far outside public opinion and court political catastrophe. The idea that at the very least Americans should have been obliged to ratify amendments allowing for their favorite government programs seems more than necessarily radical to the average vote-seeker. The Constitution is still binding in terms of procedure – how old one must be to serve as president, the membership requirements for both houses of Congress, etc. – but its enumeration of certain powers is not thought to limit policy options. It might as well be Robert's Rules of Order.

Now constitutional conservatism is too often relegated to marginal organizations and the kinds of right-wingers who hold onto conspiracy theories about the Bildebergers. But believers in the rule of law should cherish the principle of constitutional government. Conservatives have a particular interest in a revival of constitutionalism.

Imagine what the federal government would look like if the Constitution were enforced. A tax cut far larger than the one proposed in President Bush's original economic stimulus plan, much less the one passed by the Senate, would be easily affordable. There would likely be no budget deficit. Private property would be more secure and the government meddling in the economy would be reduced to a minimum. There would be fewer laws and regulations. The federal government could once again focus on its legitimate, constitutional functions.

In short, instead of conservatives being on the defensive against a steady onslaught of liberal programs, liberals would be on the defensive trying to formulate an agenda that passed constitutional muster. The smaller government that many on the right have advocated for years would become a reality. Yet rather than promote the idea of constitutionally limited government, many on the right have given up and decided to promote federal usurpations of their own.

This is unfortunate. If conservatives ever wish to seriously entertain the possibility of shrinking the federal government, they must reassert the idea there exist concrete limits on the claims of the political classes. A beginning would be a reawakening of the conservatism's constitutionalist principles. It may seem unrealistic now, but it is the conservative's lot in life to take up seemingly defeated causes, or as the founders of National Review put it, to stand athwart history yelling, "Stop!" Sometimes, stop it does.

W. James Antle III is a senior editor for Enter Stage Right.

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