“Adjudicating From The Legislature”: Yes, Constitutional Conservatives Are Radicals
This morning Brother Benen looked at a proposal by Steve King to strip the federal judiciary of jurisdiction over any case involving marriage and noted its provenance in prior right-wing court-stripping measures. But he also suggested such advocacy ought to debar King from calling himself a “constitutional conservative.”
Whatever one thinks of marriage equality, court-stripping is itself ridiculous. The constitutional principles of “separation of powers” hasn’t disappeared just yet, so the idea that the legislative branch will dictate to the courts what kind of cases judges are allowed to hear is more than a little crazy – it undermines the very idea of an independent judiciary.
And it sure as heck isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – King and his cohorts want to adjudicate from the legislature.
I think a clarification is appropriate here. People like King use the modifier “constitutional” before “conservative” to indicate that they are not interested simply in opposing change or in going back to very recent public policies. Their eyes are fixed on a distant vision of the perfect governing order that they believe the Founders spelled out before it was ruined by courts and legislators and presidents alike. And it certainly does not include the right of final judicial review as understood by the rest of us. And so their expedient is court-stripping schemes which they believe help restore the proper constitutional order, or at least prevent current disorders from getting worse.
Just as “constitutional conservatives” tend to believe that absolute property rights and even fetal rights were embedded in the Constitution, never to be removed without an explicit amendment, they believe in an eternal scheme of states’ rights that would most definitely include all matters related to marriage. So in their minds, that eternal scheme, not recent precedents, in what defines “conservatism,” and thus the most radical measures are justified to bring back the “Constitution” as they understand it.
Of course constitutional conservatives are radicals. But many of them believe they are fighting for a governing model quite literally handed down by God Almighty, who intended it to be maintained quite literally forever. And that is indeed a conservative–and a radical–way of looking at things.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, April 23, 2014
“The Constitutional Excuse For Subverting Democracy”: Just Another Conservative Heads-We-Win-Tails-You-Lose Proposition
To anyone puzzled or confused about the preferred Tea Party self-identification buzzword “constitutional conservative,” George Will has done a fine job in his latest column spelling it all out, by way of touting a new book by Timothy Sandefur of the Pacific Legal Foundation. Progressives believe the Constitution provides a process that facilitates democracy. Conservatives understand that it’s a safeguard against the limitation of “natural” rights by democratic majorities.
This sounds reasonable if you accept the rather cartoonish idea that progressives do not acknowledge any limitations on popular majorities, or that the two sides mean roughly the same thing when they talk about individual rights. Here Will is not as forthcoming as he might have been, but his extensive discussion of the alleged incorporation of the Declaration of Independence into the Constitution–an invariable touchstone for Constitutional Conservatives–alludes to the common conservative belief that via the Declaration certain divinely granted or naturally endowed “rights”–particularly the untrammeled enjoyment of private property and the “right to life” of zygotes–trump the founding document itself.
You can think of it as a vastly more sweeping conservative version of the “penumbra” theory whereby Justice Douglas identified an implicit “right to privacy” in the Bill of Rights. And indeed, critics of Douglas’ opinion in Griswold v. Connecticut (itself a precedent for Roe v. Wade) have sometimes compared it to the “substantive due process” concept of the Lochner v. New York decision under which progressive social and economic legislation was routinely struck down as violating immutable private property rights until Lochner was overturned in 1937. It’s no accident that Will’s hero Sandefur is a latter-day defender of Lochner.
I’m no constitutional lawyer, and so won’t go into the argument over Lochner (or for that matter, Griswold) in detail, but it’s worth noting the practical effect this idea of supra-constitutional limitations on democratic majorities has on conservative political argumentation. When they aren’t describing America as a “center-right nation” or predicting perpetual Republican electoral landslides, or indulging in a “populist” appeals whereby “real Americans” are told they are being illegitimately outgunned by voter fraud or voter bribery, conservatives are prone to retreat into this impregnable fortress of constitutionalist theory which prohibits as a matter of fundamental law most progressive legislation. This redoubt makes it psychologically very easy to rationalize restrictions on voting, or mendacious campaign ads, or unlimited campaign spending by wealthy individuals, or abuse of the filibuster or other anti-democratic mechanisms. After all, conservatives are simply defending themselves against laws and policies that really ought to be struck down by the courts as unconstitutional–you know, like the Lochner-era courts routinely did with progressive legislation up through the early New Deal.
It’s at bottom just another heads-we-win-tails-you-lose proposition whereby American conservatives tend to support the constitutional arguments that in any given circumstance happen to support their policy goals.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 17, 2014
“An Authoritarian System”: If God & Founders Solved It All, Why Bother With Democracy?
There’s an interesting op-ed up at WaPo today from Michigan State political scientist Matt Grossman arguing that conservatives are only “obstructionists” insofar as “most policies under debate are liberal,” not just now but for decades.
Grossman is implicitly illustrating a point about “constitutional conservatism” that I’ve often tried to make: If the divinely inspired Founders pretty much figured out the ideal governing model for all time (except for that troublesome bit about slavery), then all political controversy involving the limitation of absolute property rights and states’ rights is illegitimate and should be obstructed. This means that strictly speaking the “constitutional conservative” vision is perfectly compatible with an authoritarian system in which “illegitimate” policy options are off the table.
I’m not accusing such conservatives (much less Grossman, who doesn’t Go There at all) of advocating an authoritarian system, though proposals like the Cut, Cap and Balance Constitutional Amendment do indeed seek to permanently proscribe a significant part of liberal social and economic policies. But if conservatives sometimes seem cavalier about respecting democratic norms, including the right to vote, there’s your explanation.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April9, 2014
“Fun And Games Until People Get Killed”: Constitutional Conservatism’s Non-Violent March To Threaten Violence
As readers have probably noticed, I’m on something of a campaign the last few days to train a spotlight on the revolutionary rhetoric and gun-brandishing of many Second Amendment activists and “constitutional conservatives,” which has leeched over into standard conservative and GOP messaging to an alarming degree. Like anyone shining a spotlight into previously dark shadows, I’m not always familiar with what I’m seeing. That’s definitely the case with Adam Kokesh, an Iraq War vet and omni-libertarian who is planning a non-violent march of armed citizens on Washington for Independence Day to show, best I can tell, that resistance to the demands of people like him that government radically retract its size and scope will eventually face real fire. Here’s Paul Szoldra’s write-up of Kokesh’s scheme at Business Insider:
Adam Kokesh, 31, is planning a July 4 rally of pro-gun activists openly carrying rifles from Virginia to Washington as an act of “civil disobedience.” The plan, according to his Facebook event page, is to march across Memorial Bridge with rifles loaded and slung across the back “to put the government on notice that we will not be intimidated [and] cower in submission to tyranny.”
The invite continues, stating, ” … This will be a non-violent event, unless the government chooses to make it violent.”
Kokesh writes that if 10,000 attendees RSVP by June 1st, “we have the critical mass necessary to pull this off.” He said he wants to have at least 1,000 actually marching in the event, and as of this writing, more than 1,400 have said they were going.
As the headline at Karoli’s post on this plan at Crooks & Liars rightly says: “Marching On DC With Loaded Rifles: What Could Possibly Go Wrong?”
But even if no violence ensues, this exercise is actually typical of an awful lot of the stockpiling-guns-to-resist-tyranny talk on the Right (and on rare occasions, the Left) these days. It’s actually the inverse of what Kokesh says: it’s an effort to intimidate political opponents with the threat, if not the immediate actuality, of violence. Otherwise, what’s the point of carrying guns to your nonviolent protest? The point, it seems clear, is to make extraconstitutional claims for the legitimacy of the “constitutional” protests against Big Government. We can peacefully debate, the potential “armed resistance” forces suggest, this or that aspect of gun regulation or Obamacare or drone policy or taxes or “welfare looters” via conventional politics. But in the end, our conviction that your “progressive policies” represent “tyranny” trumps all civil discourse, and that’s when the shooting may start.
And that, of course, is why this sort of talk is not limited to anarchists or even to the kind of “constitutional conservatives” who really do think the policies of Calvin Coolidge or Grover Cleveland or the doctrines of John C. Calhoun came down from heaven and were enshrined eternally by the Declaration of Independence. Consciously or unconsciously, regular conservative politicians see this sort of militancy as a crucial difference-maker (or in times of Democratic political success, an “equalizer”), and so they exploit it. It’s all fun and games until people start getting killed.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 6, 2013
Yes, Perry And Bachmann Are Religious Radicals
While few in either the mainstream media or the conservative commentariat have been so bold as to deny that the Republican Party is a lot more ideologically rigid than it was four or twelve or thirty years ago, there has been some regular pushback against attaching such terms as “radical” and “extremist” to the party’s views. Some conservatives like to claim that they just look extreme when compared to a Democratic Party dominated by a radical socialist president. Others admit their party is in an ideological grip unlike anything seen since Barry Goldwater’s 1964 campaign, but argue the whole country’s moved with them. (Just observe Michele Bachmann’s recent statement that the Tea Party represents the views of 90 percent of the U.S. population). But more common is the effort, which extends deep into the media, to push back against charges of Republican extremism on grounds that, well, a party that won over half the ballots of 2010 voters cannot, by definition, be anything other than solidly in the mainstream. And so it becomes habitual to denigrate even the most specific text-proofs that something odd is going on in the GOP as “liberal hysteria” or mere agitprop.
This 45-million-Americans-can’t-be-wrong meme has been deployed most recently to scoff at those progressive writers who have drawn attention to the rather peculiar associations of presidential candidates Michele Bachmann and Rick Perry. The most typical retort came from Washington Post religion columnist Lisa Miller, who deplored those scrutinizing Bachmann’s legal training at Oral Roberts University or the “dominionist” beliefs common among many key organizers of Perry’s recent “day of prayer and fasting” as “raising fears on the left about ‘crazy Christians.’” New York Times columnist Ross Douthat offered a more sophisticated but functionally equivalent rebuke, suggesting that Bachmann and Perry were representing a long Republican tradition of co-opting religious extremists with absolutely no intention of giving them genuine influence.
But the recent resurgence of militant Christian Right activism, alongside its close cousin, “constitutional conservatism,” is genuinely troubling to people who don’t share the belief that the Bible or the Constitution tell you exactly what to do on a vast array of political issues. From both perspectives, conservative policy views are advanced not because they make sense empirically, or are highly relevant to the contemporary challenges facing the country, or because they may from time to time reflect public opinion. They are, instead, rooted in a concept of the eternal order of the universe, or in the unique (and, for many, divinely ordained) character of the United States. As such, they suggest a fundamentally undemocratic strain in American politics and one that can quite justifiably be labeled extreme.
Consider the language of the Mount Vernon Statement, the 2010 manifesto signed by a glittering array of conservative opinion-leaders, from Grover Norquist to Ed Fulner to Tony Perkins:
We recommit ourselves to the ideas of the American Founding. Through the Constitution, the Founders created an enduring framework of limited government based on the rule of law. They sought to secure national independence, provide for economic opportunity, establish true religious liberty and maintain a flourishing society of republican self-government. …
The conservatism of the Declaration asserts self-evident truths based on the laws of nature and nature’s God.
An agenda speaking with the authority of “self-evident truths based on the laws of nature and nature’s God” and advancing the “enduring framework” of the Founders is, by definition, immutable. And in turn, that means that liberals (or, for that matter, their RINO enablers) are not simply misguided, but are objectively seeking to thwart God and/or betray America. Think that might have an impact on the tone of politics, or the willingness of conservatives to negotiate over the key tenets of their agenda?
From this point of view, all the recent carping about liberal alarm over the religious underpinnings of contemporary conservatism seems to miss the big picture rather dramatically. Both Michele Bachmann and Rick Perry have conspicuously offered themselves as leaders to religio-political activists who, whatever their theological differences, largely share a belief that God’s Will on Earth requires the repeal of abortion rights and same-sex relationship rights, radical curtailment of government involvement in education or welfare, assertion of Christian nationhood in both domestic and international relations, and a host of other controversial initiatives. Does it ultimately matter, then, whether these activists consider themselves “dominionists” or “reconstructionists,” or subscribe to Bill Bright’s Seven Mountains theory of Christian influence over civic and cultural life? I don’t think so.
Similarly, the frequent mainstream media and conservative recasting of the Tea Party as just a spontaneous salt-of-the-earth expression of common-sense attitudes towards fiscal profligacy is hard to sustain in light of the almost-constant espousal of “constitutional conservative” ideology by Tea Party leaders and the politicians most closely associated with them. Perhaps Rick Perry, just like his Tea Party fans, really is personally angry about the stimulus legislation of 2009 or the Affordable Care Act of 2010, and that’s fine. But no mainstream conservative leader since Goldwater has published a book challenging the constitutionality and morality of the entire policy legacy of the New Deal and (with the marginal exception of the Civil Rights Act of 1964) the Great Society. Ronald Reagan, to cite just one prominent example, justified his own conservative ideology as the reaction of a pure-bred New Deal Democrat to the later excesses of liberalism. Reagan also largely refrained from promoting his policy ideas as reflecting a mandate from God or the Founders, and he treated Democrats with at least minimal respect.
In that sense, major presidential candidates like Perry and Bachmann really are something new under the sun. They embody a newly ascendant strain of conservatism that is indeed radical or extremist in its claims to represent not just good economics or good governance, but eternal verities that popular majorities can help implement but can never overturn. They deserve all the scrutiny they have attracted, and more.
By: Ed Kilgore, Special Correspondent, The New Republic, August 31, 2011
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