Constitutionalism

I mentioned last week that one of the ways I was celebrating the anniversary of the Constitution was by participating in the course provided free by Hillsdale College (constitution.hillsdale.edu). Last Thursday was opening day, and then there are weekly lectures on Mondays for several weeks. Anyway, Thursday evening’s keynote included a speech by Charles Krauthammer (which you can still see in the archive—he’s about 20 minutes in, after a couple of shorter speeches, and speaks for 30 minutes plus Q&A). 

He related his theme, about our surprising reverence for the Constitution, to the spontaneous movement among people to rise up and take action, to say to government—you have gone too far! We call it the Tea Parties, or maybe other names like 9/12ers or liberty groups. But people have acted totally contrary to how the opposition behaves (paid organizers fomenting faux grassroots responses) and to what they have come to expect (grumbling capitulation). As Krauthammer put it: 

So on the one side we have American hyper-liberal government trying to push us to a more social democratic system, and then miraculously, or astonishingly, no matter how you want to see it, you can believe in providence or not. But amazingly there is a spontaneous reaction. It was not led. It was not organized. It was no conspiracy. People reacted against this push to the left, and the movement has been called Tea Party, but in reality it’s much more widespread, expressed itself in the November elections of last year, which calls for a more restricted vision of government, more consistent with the intent and the aim of the founders. I would call it constitutionalism, or a return to constitutionalism.

He talked about how philosophically perfect this movement is. It’s hard to summarize this justly, but he said that, in the past the argument against New Deal-style overreaching has been to point out the inefficiencies and arbitrariness—good arguments, but not apparently strong enough to halt the encroachment. The new argument is rooted in the enumerated powers Constitution—which limits the powers of government. As Gandalf, we say to the evil Balrog of big government: “You shall not pass!”

Here’s a portion of Krauthammer’s description of the difference in defense of our liberties: 

The traditional defense against government encroachment over the last decades has been not to argue about enumerated powers, but to argue on the grounds of the Bill of Rights, and to claim individual, the inviolable sphere of freedom and sovereignty of the individual: “You can’t do X because it goes against individual rights and the Bill of Rights.” But that idea, that kind of defense, tends to concede that outside of that private sphere surrounding the individual, the government is free to roam and to rule.  

The attack today on the basis of enumerated powers is a stronger attack on big government. Because now it argues that it is government, not the individual, that is constrained by a sphere around it. And that sphere constrains the government because of the enumerated powers in the Constitution beyond which it may not go…. 

In some ways it’s a kind of recapitulation of the argument that is the basis of the 10^th Amendment, but it has I think a larger implication, because once you talk about enumerated powers, you’re going to the heart of the expansion of the state, ever since the New Deal. And that I think is why it’s so important.… 

This to me is the final judicial attack on big government. The commerce clause for 80 years has been the high road to the expansion of government, which is why the framers of Obamacare were so contemptuous and dismissive at the beginning of any constitutional challenge, that they just assumed, “We’ve been using it ever since the 30s, and we’re going to use it again,” and now it’s under challenge—and these Democrats are not dismissive anymore. They’re scared. They’re afraid of two things: that they will be rebuked and defeated by the courts, and even if not that they will be rebuked and defeated by the people at the polls in November. 

That’s why I have reasonable hope for the future. I do think that this popular reaction—again, inchoate, unorganized, undirected, that developed into this tsunami that we saw on election day last year, and that still animates the opposition—as one unbelievably wondrous sign of the health of the body politic. And the fact that it has concentrated on exactly the correct constitutional issues, that it refers to, finds its strength in constitutionalism itself, is encouraging.  

It’s not just the traditional arguments that Obamacare or these other expansions are inefficient, they are not economically sound, they lead to bureaucratic inefficiency; that would be OK, but it wouldn’t be enough, not at this time. The argument now, the resistance now, is emphasizing, is rooted in an attack on the constitutional illegitimacy of what is being done. And that, in a constitutional republic, is the heart of the matter. 

A good portion of his speech talked about how unusual and providential it is that we reverence the Constitution in the first place. Most places around the world do not abide by the words in a written document. It is heartening that even our opposition recognizes that it must convince the people of the legitimacy of its actions—by torturing the meaning of the Constitution if necessary, but recognizing that the people will not just ignore our basic law. So when the people understand the Constitution, and stand up on their own, joining together, to say, “The Constitution says you shall not usurp this power from the people, and we do not grant this power,” the big government pushers must of necessity back off, albeit with weeping and wailing and gnashing of teeth. 

The very fact that I do not feel alone as I passionately defend my love and respect for the Constitution is indeed reason to hope. To hope that, after a century of encroaching big government, we can change, to return to principles rooted in our miraculous, brilliant Constitution.