Constitutional Piety Rings Hollow if it Can’t Resonate with Today’s Issues

By | 2017-06-02T18:30:05+00:00 October 5, 2016|
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Constitution-Print-C10314518When defending Donald Trump and Trump’s supporters from those who claim to have an earnest concern for “conservatism” and “conservative principles,” a common theme American Greatness explores is the extent to which these earnest people  confuse policy with principles. Too often, their attachment to “principle” turns out, really, just to be a commitment to 1980s-style policy prescriptions on taxes, trade, and Cold War-era foreign policy.

It is as though they forgot to ask themselves the ever-important “why?” when it comes to these prescriptions; not to mention the “what?” Why were these policies implemented? In the service and conservation of what?

Those of us who think we understand Trump’s appeal suggest that it has to do with something beyond conservatism— narrowly defined as a checklist—and beyond even the Constitution, at least as so-called conservative “constitutionalists” wish to understand it.

Pete Spiliakos, over at First Things, has a different take on what ails conservatism and Republicans. Prior to the emergence of Trump, he was an ally in decrying the fixation of too many conservatives on the policy agenda of the past. He thinks the cause of this problem, however, is “too much emphasis” on the Constitution and on high principle generally. And given most of the examples he cites, I cannot disagree him. Spiliakos argues that Decius’ “defense of Trump is important for illuminating the abuse of constitutional rhetoric on the right”and that,

Defense of the Constitution has become a rhetorical crutch. It has become a substitute for an agenda that is relevant to the issues of the day.

And, again, I agree. Reading that, it is difficult to see why he thinks he must differ with Decius. Spiliakos is quite right, just as a matter of practical and prudent observation that, “If you make people choose between constitutionalism and their everyday concerns, the Constitution will lose.” I’d go one further. Put that way, the Constitution should lose. If the Constitution is beside the point of our everyday concerns, what good is it, anyway?

But, in focusing his frustration with lazy conservative thinking on the inability of conservatives to to put forward a policy agenda that resonates with a winning coalition of voters in the here and now, I think Spiliakos misses the larger point about conservatism’s current hollowness. If anything, Spiliakos actually underestimates the intellectual laziness of too many conservatives! It is not just that so many use “constitutionalism” as a crutch. It is that they don’t even understand the basis for or the nature of the constitutionalism they profess to admire. Oh, they have the piety down. They fetishize constitutional piety, in fact. But is what they call “constitutionalism” really worthy of this much piety?

As far as I can see, too many of them are attached to a fuzzy and idealistic nostaligia they reflexively call “constitutionalism” out of habit and training in the 1980s rhetoric of Conservatism, Inc. But most can’t defend this constitutionalism on the basis of reason. What they call constitutionalism amounts to “Founding = good.” We are supposed to know that the Founding is good because it is old and because wise men we should respect were then at the helm.

Not good enough. In fact, it amounts to just another form of relativism. What made the Founding and the Constitution good in the first place? What was the Constitution instituted in order to secure? If you can’t answer these questions, then it is impossible to provide policy prescriptions that both resonate and are in keeping with the Constitution, no matter how well you may think you understand either. The Constitution, by itself, is just a shell (as is the term conservative). It was instituted as a means to secure the end of good government and good government was considered necessary as a means to secure our inherent and natural right to self-government. This was the apple of gold while the Constitution was merely the frame of silver that surrounded it.

One reason today’s hollow constitutionalists can’t make policy prescriptions that resonate with a majority of voters is that they are lousy about explaining the connection between the policies they prefer and the purposes of our Constitution. They are, likewise, lousy at explaining why a violation of constitutional norms even when the result may be one that is otherwise popular is not just an affront to our proud history as a people and the vaunted “wisdom” of our sainted Founders; it is an affront to the people’s sovereignty in the here and now.

That’s right. If a regulation or law or a treaty (e.g., tax audits, Obamacare, climate change treaties) are made or enforced in ways that are in violation of the Constitution, it is not just a kick in the teeth to Jimmy Madison and the boys; it’s a violation of our rights. The Constitution is the one and only expression of the solemn will of the people of the United States. Ordinary electoral majorities or the majorities culled together in Congress do not have the same weight or authority as the Constitution is supposed to have, and for good reason.

Spiliakos, though he ought to understand this, seems confused by the concept of the sovereignty of the people. And this is why he is forced to conclude that Trump is a demagogue. Consider this canard:

Decius argues that the question of this election is whether rule is by ‘The many or the few?’ No, it isn’t. In 2012, Obama was elected with 51 percent of the popular vote. Trump, even if he wins, is likely to get a smaller share of the vote. Would Trump’s 49 percent represent the many, where Obama’s 51 percent represented the few? One is reminded of the campus left-wing activists who, reducing words to tribal war chants, scream about diversity and tolerance even as they do all in their power to persecute dissenters.

Here Spiliakos betrays his fundamental misunderstanding of popular sovereignty and it is in keeping with his misunderstanding of the word “demagogue.” A demagogue is someone who gins up the people (or the demos) for the purpose of unjustly overturning the rights of the minority. A demogogue is not one who simply claims to stand up for the rights of demos, even if he is ineffectual or shows no promise of being effective. Whose rights can Spiliakos say Trump seeks to overturn? More to the point, if we are to fear a “tyranny of the majority” doesn’t Spiliakos paint a picture of exactly that with his simple majoritarianism of 51 percent? May simple electoral majorities do whatever they like, including disregard the Constitution, just because “they won?” Having worked with Spiliakos in the past, I know he knows better than that. So I am just going to have to suppose that he misunderstands what Decius and other Trump defenders mean when we talk about restoring the sovereignty of the people. We are calling for a restoration of some reasonable line of consent between the people and the laws that govern our lives. That any given president may or may not have 51 percent of the popular vote is so far beside the point that it’s barely worthy of a mention.

Finally, Spiliakos closes with the (true) observation that, “a defense of the Constitution will have to be bundled with a domestic agenda that speaks to the contemporary concerns of Americans.” I agree! This is why I find it so strange that when a Republican candidate finally comes along with a domestic agenda that speaks to the contemporary concerns of Americans, those who are supposed to understand how that may work within the higher order constitutional arguments, like Spiliakos, instead of offering them in defense of that domestic agenda (as they would have done, however half-heartedly, for Bush or Rubio or, even, Cruz) choose instead to fault Trump for “indifference” to the Constitution. Stranger still is faulting the Trump supporters who are trying to provide that as “barbarians” scrawling letters on a rock before we bash in the skulls of our enemies. Maybe it’s just me, but it seems like a weird way to encourage reconciliation.

 

About the Author:

Julie Ponzi
Julie Ponzi is Senior Editor of American Greatness. She holds an M.A. in political philosophy and American politics from the Claremont Graduate University. She was an Earhart Fellow and a Bradley Foundation Fellow while studying at Claremont and also earned a Publius Fellowship from The Claremont Institute. Formerly the Director of Academic Programs at the Claremont Institute, she also taught American politics at Azusa Pacific University. Her writing has appeared in the Claremont Review of Books, The Online Library of Law and Liberty, The Columbus Dispatch, The Atlanta Journal-Constitution, and The Washington Times. She was also a regular and long-time contributor to the Ashbrook Center's blog, No Left Turns. She lives in California. You can follow her on Twitter at @JuliePonzi
  • Bill Kristollnacht

    I find it interesting that “Constitutional Conservatives” only bite around the edges (with big talk) of the the real problem that plagues us.

    Have you ever noticed they never talk about how the Administrative State seems to hold 100x more power than the Congress (we the people) they are supposed to lead?

    And why is it that our “Conservative” led Congress doesn’t lift a finger to deal with this unaccountable Administrative State that violates our rights every hour of every day?

    • crazy j

      Mark Levin makes a big stink about the overreaching Administrative State all the time.

      • Bill Kristollnacht

        And does absolutely nothing about it, just like the GOPe.

        • crazy j

          He’s not in office. As a matter of fact, he rails against the GOPe more than any other talk show host I can think of.

          • Bill Kristollnacht

            Mark Levin is a #nevertrumper.

            I have no respect for that.

            Yes, he said he’d vote for Trump but that doesn’t work for me.

            He’s a Globalist.

  • Bill Kristollnacht
  • QET

    I don’t really understand Ponzi’s point. She writes: “If the Constitution is beside the point of our everyday concerns, what good is it, anyway?” Well, if one thing is clear, it is that “the people’s sovereignty in the here and now” is not one of “our everyday concerns,” is not one of “today’s issues.” (Except for a very small and select group of people like Decius and, I presume, the editors and readers of this site). “Today’s issues” are about (i) streamlining delivery of consumer goods and services in an on-demand consumer society, and (ii) suppressing political dissent. As for (i), sovereignty is not a consumer good. As for (ii), sovereignty is understood by the prevailing Left-liberal ethos to be synonymous with “what is best in life” as related by Conan: to crush your enemies, to see them driven before you, to hear the lamentations of their privileged white straight cis women. For that, a limited government is a disease, not a cure.

    • jack dobson

      Bleak.

      As I understood Ponzi, it really is necessary to use the preceding sentences in the paragraph to put it into context: ““If you make people choose between constitutionalism and their everyday concerns, the Constitution will lose.” I’d go one further. Put that way, the Constitution should lose. If the Constitution is beside the point of our everyday concerns, what good is it, anyway?” The choice is forced because, practically, immediate needs have to yield to philosophical preferences.

      The two items you list as “today’s issues” actually are mandates of the administrative state and not “our everyday concerns” outside of how they are mandated. That tension is about to play out in ways that would have appalled us as recently as the first and hopefully last Clinton Administration. Your last full sentence is undeniable and troubling.

  • John Ash

    Sounds like an endorsement for Gary Johnson.

  • John Ash

    It is important to note that there is only one actual Constitutional Conservative even in Congress, and that is Justin Amash. Everyone else is a pretender and fake. They pick and choose and don’t even enunciate why anything is unconstitutional at all. We don’t have nearly enough unconstitutional rhetoric, which is why the Supreme Court rubber stamps everything Congress does.

    Conservatives need to be 100% pro-Constitution or STFU. And if they do it, they need to offer the alternative Amendments to add powers, or the moving of those powers back to the States. And explain why this is better for the people and preserves their freedoms and rights.

    • crazy j

      If they can freely violate what is already written, then what makes you think writing more will solve the problem?

      • John Ash

        Because if you start making Amendments for things the government does, you are trying to put the government back into the bottle by making the bottle bigger. And if the Amendment doesn’t pass? SCOTUS has to look at that. By doing so, you are putting the government actions on public trial in a big way. It is possible to put the toothpaste in the tube, but it requires action by Congress, which is why we need new people.

        • crazy j

          It’s like the claim we need a balanced budget amendment. What’s to stop a corrupt administration from just simply cooking the books?

          The Supreme Court? Is this not the same group that failed us on Obamacare not once but twice? Wouldn’t a packed court just rubber stamp anything the Democrats want? California just made it against the law to criticize climate change. Do you really want that on a national level?

          • John Ash

            Well, nothing, it happened during the Clinton years. Multiple balanced budgets were claimed, but zero materialized. The debt did not once decline.

            The Supreme Court started to fail badly when the 17th Amendment was created and allowed populists to approve the SCJs.

          • crazy j

            A large number of states already allowed the direct election of senators before the 17th. With or without the amendment, it would have happened to all 50 states anyway.

          • John Ash

            Maybe, but without an Amendment, the States would be free to admit that was a mistake and reverse it. They can’t without everyone else’s permission now.

          • John Ash

            That is the only other reason to vote Trump, is the Supreme Court. But conservatives, especially politicians, need to stop mentioning the Constitution and start doing something about it. I have a plan for that. It’s called Amendment Baiting.

    • Severn

      It’s important to note that John Ash, in spite his delusional ravings, lacks either the power or the knowledge to proclaim anybody a “Constitutional Conservative”. His knowledge of both conservatism and the Constitution is non-existent.

      • John Ash

        And yet, I have. Anyone who thinks immigration authority is in the Constitution is absolutely clueless about American history, the Founding and the Founders.

  • jack dobson

    We live in a post-constitutional era already and, I’m afraid, Rule of Law is for the little people. When “constitutional conservatives” assert their principles flow from the Founders, it usually is a rhetorical device to advance a preferred policy position such as free and unlimited trade.

    Spiliakos’ primary objection to Trump is he doesn’t like him. Fair enough, but don’t turn around and claim we need someone to advance X, Y and Z, just not that someone because he isn’t familiar with Burke. This really is the last stop. We have someone, warts and all, who at least claims to want to advance X, Y and Z. If he isn’t elected, we not only will be post-Constitutional but post-American. If the latter isn’t saved the former is meaningless and cannot be restored. There will be a polity known as “the United States” but it will be a meaningless collection of territory and peoples governed by an increasingly oppressive administrative state. In other words, it will be now with less restraints.

    • John Ash

      I refuse to accept the word “post-Constitutional” and will fight for a return to Constitutionality until my last breath.

  • Severn

    The anti-Trump crowd do like to tell you about the “principles” and their fondness for “the constitution”. Curiously, they never seem to get around to spelling out in any detail what exactly those principles are.

    Cruz mentioned the constitution many times in his convention speech – without ever elaborating on what exactly he believes constitutionalism is. In fact based on the things the anti-Trumpers say they believe in, it’s not at all clear why they’re anti-Trump at all.

    One possibility comes readily to mind – the anti-Trump people don’t actually believe the things they say they believe. For instance I’ve noticed many “conservatives” insisting that Trump isn’t serious about cracking down on illegal immigration. What makes this so odd is that I know, based on reading them for many years, that the “conservatives” in question themselves oppose any crack-down on illegal immigration! So they’re attacking Trump by essentially claiming that “He thinks like we do!”, and therefore that you other people should not vote for him. It’s a bizarre display of cognitive dissonance.

    • John Ash

      Still waiting for you to understand and accept the Naturalization Clause.

      • Severn

        Still waiting for you to read the writings of the Founders – none of which support your idiotic notions.

        • John Ash

          To the contrary, all of them do, because absolutely none recommend said authority nor does the Constitution. Further, the 1828 Websters shows two completely different definitions of “Naturalization” and “Immigration”, only one of which is in the Constitution. For a reason.

          In what reality do you think the slave states, or any other for that matter, would accept external control over who lives in their state? You’re delusional.

  • Severn

    The trouble with constitutionalism is that it is not actually a “thing”. For the most part it’s simply an attractive wrapper people place their own particular beliefs in in an effort to sell them to other people.

    Forget the left and their school of constitutional interpretation for the moment. Even on the right “the constitution” means different things to different people. Ted Cruz clearly regards himself as a constitutionalist, and yet his positions with regard to subordinating the American government to supranational bodies and treaties are flagrantly unconstitutional in my eyes, and those of a great many other people.

    • John Ash

      Republicans would stop losing elections if they stopped buying into librul beliefs about the Constitution, like Social Security, Immigration, Medicare, Drug laws, etc, etc. You have maybe ONE elected official that believes in the Constitution.

      • Severn

        You’re probably THE most stupid person I’ve ever encountered online – and God knows that’s saying something.

        In what bizarre fantasy of yours would the Republican Party sweep to victory if it pledged to abolish Social Security, Medicare, Medicaid, America’s borders, drug laws, etc?

        There’s a reason why the libertarian movement routinely polls at less than 1% – nobody likes your idiotic ideas. In fact from what I’ve seen even the majority of libertarians themselves don’t believe the brain-dead nonsense they spew. You people are like bratty teenagers who say crazy things simply to try to shock their parents.

        • John Ash

          Nice strawman. Did you ever hear of getting an Amendment?!?

          • Severn

            No, I’ve never heard of anyone “getting an Amendment” in order to state that program X, which is currently legal and has been in operation for decades, is legal. Such a thing has never been done in American history and nobody is going to start now.

          • John Ash

            And that is precisely the problem. Congress has assumed a “better to beg forgiveness than ask permission” stance and is getting away with it because voters are gullible and gutless.

  • John Ash

    My pitch on this is that a conservative can address things this way:

    1. Social Security is entrenched and inviolable, so if we want to ensure it, we need to get a Constitutional Amendment for it to not only ensure it, but to prevent its robbery and allow for alternatives for those who are against the program.

  • John Ash

    “Spiliakos, though he ought to understand this, seems confused by the concept of the sovereignty of the people. ”

    Julie, aside from Trump admitting to sexual assault in the most vulgar of ways, you seem to be under the misguided belief that the “people are sovereign” in all ways. They are sovereign over the government, but they are NOT sovereign over the individual. Individuals have sovereignty, and because of that sovereignty, they cannot harm each other, not even if a mob outnumbers the individual.

  • emptorpreempted

    I think this author and this website spend too much time on the murky question of where the Constitution derives its authority, thus getting side-tracked into 18th-century theories of popular sovereignty that are apt to be grossly misunderstood (see below), when the only thing we need agree on is that the Constitution *has* in fact authority. Otherwise, we are already in a state of anarchy, since there is no alternative source of authority which has a claim on anybody’s loyalty. That’s why apologists for the administrative state (at least, those of them who are not idiots) still insist that its latest questionable exercise of power is really constitutional.