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

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.

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About 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