The Constitution, at Last

The Constitution, at Last
By Charles R. Kesler
Once upon a time, and not so long ago, American politics revolved
around the Constitution. Until the New Deal, and in certain respects
until the mid-1960s, almost every major U.S. political controversy
involved, at its heart, a dispute over the interpretation of the
Constitution and its principles.
Both of the leading political parties eagerly took part in these debates,
because the party system itself had been developed in the early 19th
century to pit two contenders (occasionally more) against each other
for the honor of being the more faithful guardian of the Constitution
and Union.
Even from today’s distance, it isn’t hard to recall the epic clashes that
resulted: the disputes over the constitutionality of a national bank,
internal improvements, the extension of slavery, the legality and
propriety of secession, civil rights, the definition and limits of interstate
commerce, liberty of contract, the constitutionality of the welfare state,
the federal authority to desegregate schools, and many others.
What’s different today is that, although it still matters, the Constitution

is no longer at the heart of our political debates.
Today’s partisans compete to lead the country into a better, more

hopeful future, to get the economy moving again, to solve our social
problems, even to fundamentally transform the nation.
But to live and govern in accordance with the Constitution is not the
first item on anybody’s platform, though few would deny, after a
moment’s surprise at the question, that of course keeping faith with
the Constitution is on the program somewhere — maybe on page two
or three.
Presidents still swear (or affirm, for you sticklers) to “preserve, protect,
and defend the Constitution of the United States,” and other state and
federal officeholders take similar oaths.
And, perforce, constitutional questions continue to arise now and then

in our politics.
But these rarely command center stage. The Democrats, for example,
condemned George W. Bush’s supposed abuse of presidential war
powers, but they never bothered to turn their carping into a doctrine;
the only remedy they were really interested in was a change of
personnel, and Barack Obama now carries out many of the previous
administration’s policies without a whimper from the Democratic
majorities in the House and Senate.
It’s a little different when federal judges — especially Supreme Court

justices — are to be appointed. Then the political class focuses at least
momentarily on constitutional matters, usually in such a tendentious
way that at the end of the process everyone is glad not to have to think
about those issues again for a while.
Besides, the kabuki dance of judicial nominations is now well

choreographed on both sides. Sonia Sotomayor was a wise enough
Latina to sound, in her testimony, like the second coming of William
Rehnquist.
Against this sideshow version of constitutionalism, the tea partiers are
lodging a memorable protest.
President Obama’s victory in the health-care battle, combined with his

administration’s relentless march toward higher taxes, deeper debt,
and bigger government, have led to an outcry for renewing
constitutional limits on the ambition and growth of the federal
establishment.
The new movement’s very name recalls the revolt against an unwritten
constitution (the British) that had become an excuse for unlimited
government, and the replacement of that arrangement by a written
constitution limiting government power.
For Republicans, the tea party has proved tonic. Reminded of

arguments they haven’t made in decades, the GOP’s leaders are
denouncing Obamacare not only as bad medicine but as political
malpractice: the deliberate and wicked violation of constitutional
norms.
At this hopeful juncture, two questions need to be asked.
First: Whatever happened to the Constitution? That is, why did it go

into eclipse in the first place?
Second: What is so good about the Constitution’s strictures, and what

guidance and assistance do they offer toward their own revival?
For the most part, the Constitution’s diminishment was the work of
modern liberalism, beginning in the progressive era and accelerating
with the New Deal. Though the original Constitution has not
disappeared entirely, it grows less and less relevant, or even legible, to
our political class.
The precise character of the new constitutional arrangements may

seem mysterious.
In the New Deal, liberals called for judicial restraint to keep the courts
from blocking legislative experiments at the state and federal levels.
From the Warren Court on, they cheered judicial activism, at least until
the bench threatened to fill up with conservative judges.
The thread connecting their shifting positions is not simply their

fondness for social experiments by whichever branch is mounting them,
but a deep-seated attachment to a new kind of experimental or
historical right.
For the Framers, rights were attributes of individual human beings who
had been endowed with them by nature and nature’s God.
The same government needed to secure these rights could possibly

threaten them, so a constant vigilance was called for to keep
government limited to its just powers.
For contemporary liberals, rights reflect society’s stage of evolution and

become real only when they are actualized, i.e., granted and enforced
by government.
Rights are therefore government-friendly. Indeed, after a certain point

of social evolution, the more power given to government, the more
rights it can and will give to the people.
Far from checking, limiting, and channeling government powers, a
proper constitution should therefore liberate them.
Only from Big Government come entitlement rights, ethnic and racial
preferences, and the newfangled “identity” rights without which liberty
would be meaningless.
The tea party is inherently reactionary, liberals believe, because it

doesn’t grasp that Big Government, far from being a threat to liberty, is
freedom’s greatest achievement.
Conservatives have done their part to sideline the Constitution, too.
In the 1960s they invoked it in opposing Medicare and Medicaid, while

southern Democrats cited it in fighting the Civil Rights Act and the
implementation of Brown v. Board.
This mixed bag of causes — and the defeat of all of them — helps to
explain conservatives’ subsequent shyness about making constitutional
claims.
Ronald Reagan appealed to the Constitution’s spirit of federalism: In his

losing 1976 campaign, he advocated returning $90 billion (a lot of
money in those days) in welfare expenditures and programs to the
states, and in 1980 he warned that the federal government showed
signs of having grown beyond the consent of the governed. But by 1984
he was proclaiming, “It’s morning again in America,” as if the danger
had been a bad dream.
Morning quickly turned to night as George H. W. Bush espied a

thousand points of light in the sky. His son later ran for president
preaching the four Cs: courage, compassion, civility, and character;
Constitution, notice, was not one of them.
In 1996, Republican congressional majorities had forced Bill Clinton to
return a federal entitlement program to the states.
Seven years later, George W. Bush and his Republican congressional

majorities passed a new federal entitlement, Medicare Part D, the first
since the Great Society and the first ever with no specific source of
funding attached to it.
Complaints about the ineptitude and intrusiveness of the federal

government remain a conservative staple, and the GOP has run through
a pharmacopoeia of remedies for the problem without success: tax
cuts, tax pledges, tax limits, spending limits, term limits, part-time
legislatures, full-time conservative judges, divided government, and a
host of never-enacted, barely serious constitutional amendments.
Having tried almost everything else, perhaps conservatives should

consider the Constitution again. It is, as they say, no panacea. (Neither
is it a panacea to note that something is no panacea!) But it could
provide the spirit, the principles, the example, and even some of the
institutions that might help to restore limited government to America.
The Constitution is, first and foremost, a republican document,

grounded in the people’s authority, even as the people’s authority is
grounded in the moral law.
The frame of government’s first words, “We the People,” proclaim this,
as do many of its particular provisions. “Bills of attainder, ex post facto
laws, and laws impairing the obligations of contracts,” the Federalist
explains, are prohibited by the Constitution because they are “contrary
to the first principles of the social compact and to every principle of
sound legislation.”
They are prohibited because they are wrong, in other words, not wrong
because they are prohibited. And their wrongness has nothing to do
with the race or sex or class of the person who might be the object of a
bill of attainder or the group that might be ensnared by an ex post facto
law.
The Constitution is not racist, sexist, or anti-democratic; though the

original Constitution incorporated notorious compromises with slavery,
it did so to obtain a Republic whose principles were anti-slavery, as well
as a Union in which, as Lincoln put it, the public mind could rest content
knowing that slavery had been put on a course toward extinction.
Elementary as these points are, they are essential to rebut the Left’s
moral indictment of the old Constitution. Fortunately, Harry V. Jaffa,
Hadley Arkes, and the late Robert Goldwin and Martin Diamond have
written copiously and brilliantly on the subject.
The Constitution establishes a government with two main structural

principles — federalism and separation of powers — and each offers
handles that citizens may grasp today to help relimit the national
government.
Ours is, or was, a regime of enumerated legislative powers, in addition

to certain implied powers that were “necessary and proper” to carry
out the enumerated ones.
The Founders disagreed among themselves about the extent of the

implied powers (e.g., to charter a national bank) as well as about the
exact bounds of presidential and judicial authority.
But they expected to disagree in hard cases and left enough political
play in the system for the people to take sides as they saw fit.
Federalism was thus partly a legal or constitutional doctrine and partly

a political one. Nonetheless, the state governments could serve as
rallying points for opposition to federal encroachments, and still can.
Though weakened by the Seventeenth Amendment (which destroyed

the state governments’ control of the Senate) and other factors, the
states may invoke their Tenth Amendment rights and link arms with
one another in demanding that the offending national officeholders be
voted out and a party of constitutionally faithful ones be voted in.
This is the real electoral point of the states’ resistance, on display now
in the impressive numbers of states protesting Obamacare.
Schemes of neo-nullification (as Matthew Spalding has called them)

purporting to declare a federal law null and void in a particular state are
based on bad history and worse jurisprudence.
When pointing to the state governments, we mean more than the state
attorneys general. When the legislatures and governors object to an
unconstitutional federal law, their protest carries more weight.
And the state governments hold in reserve two other constitutional

powers: to ask Congress for a constitutional amendment, and — the
nuclear option — to call for a convention of the states to propose such
an amendment if the Congress will not.
The Constitution wisely separated the powers of government, not only

to prevent tyranny but also to enable each branch to perform its
functions well.
When the separation of powers worked unimpaired, it helped to
prevent the disease we call Big Government. That ugly term implies,
among other things, a centralization of administrative authority in
Washington, or, to put it differently, a bureaucracy that thinks it
possesses the wisdom and the right to administer state and local affairs
all around the country.
Big Government thus strikes simultaneously at federalism and the

separation of powers, at the external and internal checks on the federal
establishment, inasmuch as a bureaucracy of this sort must combine
legislative, executive, and judicial powers to be effective.
For a hundred years, liberalism has worked to overcome the

constitutional separation of powers, winning many battles — but not
quite the war.
In the current crisis, conservative efforts to restore the separation of

powers may even be more important than a campaign to shore up
federalism. TARP, for example, was an unprecedented delegation of
legislative power to the Treasury secretary, of all people.
It was a desperate, essentially lawless grant resembling the ancient

Roman dictatorship, except that the Romans wisely confined their
dictators to six-month terms.
Obamacare is a 2,000-page monstrosity that will need thousands,

perhaps tens of thousands, of pages of additional regulations before it
can operate.
These will be issued by more than a hundred new bureaucracies, each a

source of unaccountable power wielded over individual Americans.
These multiplying centers of petty tyranny will accelerate our
transformation from a republic of laws to a corrupt regime of muddled
and ever more arbitrary power.
To unravel these new structures of unconstitutional power — and their

predecessors, added primarily since the mid-1960s — is an enormous
challenge.
But our efforts can start with the restatement of the constitutional goal,
and the resolution that at least we shall go no farther toward
centralizing and combining what should be separated.
Obamacare must be repealed, even if the older bureaucracies cannot

be. No new TARPs — and let us usher this one into the grave as quickly
as possible.
No new delegations of legislative power to unaccountable

bureaucracies.
We need to constitutionalize the government we have, as far as we

can: to pare it back as much as possible to the functions it was designed
to perform, and where that is not possible, to prefer more
constitutional to less constitutional means in every policy area.
Here is the beginning of an agenda for conservative legislators and

presidents, and for citizens, to guide us back — or rather forward — to
a healthier, more responsible, and more constitutional political life.
— Charles R. Kesler is a senior fellow of the Claremont Institute, editor

of the Claremont Review of Books, and professor of government at
Claremont McKenna College.

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The Constitution, at Last

What’s different today is that, although it still matters, the Constitution

Today’s partisans compete to lead the country into a better, more

And, perforce, constitutional questions continue to arise now and then

It’s a little different when federal judges — especially Supreme Court

Besides, the kabuki dance of judicial nominations is now well

President Obama’s victory in the health-care battle, combined with his

For Republicans, the tea party has proved tonic. Reminded of

At this hopeful juncture, two questions need to be asked.

First: Whatever happened to the Constitution? That is, why did it go

Second: What is so good about the Constitution’s strictures, and what

The precise character of the new constitutional arrangements may

The thread connecting their shifting positions is not simply their

The same government needed to secure these rights could possibly

For contemporary liberals, rights reflect society’s stage of evolution and

Rights are therefore government-friendly. Indeed, after a certain point

The tea party is inherently reactionary, liberals believe, because it

Conservatives have done their part to sideline the Constitution, too.

In the 1960s they invoked it in opposing Medicare and Medicaid, while

Ronald Reagan appealed to the Constitution’s spirit of federalism: In his

Morning quickly turned to night as George H. W. Bush espied a

Seven years later, George W. Bush and his Republican congressional

Complaints about the ineptitude and intrusiveness of the federal

Having tried almost everything else, perhaps conservatives should

The Constitution is, first and foremost, a republican document,

The Constitution is not racist, sexist, or anti-democratic; though the

The Constitution establishes a government with two main structural

Ours is, or was, a regime of enumerated legislative powers, in addition

The Founders disagreed among themselves about the extent of the

Federalism was thus partly a legal or constitutional doctrine and partly

Though weakened by the Seventeenth Amendment (which destroyed

Schemes of neo-nullification (as Matthew Spalding has called them)

And the state governments hold in reserve two other constitutional

The Constitution wisely separated the powers of government, not only

Big Government thus strikes simultaneously at federalism and the

For a hundred years, liberalism has worked to overcome the

In the current crisis, conservative efforts to restore the separation of

It was a desperate, essentially lawless grant resembling the ancient

Obamacare is a 2,000-page monstrosity that will need thousands,

These will be issued by more than a hundred new bureaucracies, each a

To unravel these new structures of unconstitutional power — and their

Obamacare must be repealed, even if the older bureaucracies cannot

No new delegations of legislative power to unaccountable

We need to constitutionalize the government we have, as far as we

Here is the beginning of an agenda for conservative legislators and

— Charles R. Kesler is a senior fellow of the Claremont Institute, editor

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