Why do we celebrate Constitution Day? Let me start with an incident that happened 30 years ago. When Egyptian president Anwar Sadat was assassinated, the networks ran over to Cairo and began covering the events all day and all night. The only thing I remember of all that coverage was a news anchor bringing in a Middle East expert and saying, “We’ve just looked at the Egyptian constitution, and our researchers tell us that the next in line for the presidency is the speaker of the parliament.” The Middle East expert burst out laughing and said, “Nobody in Egypt has read the constitution in 30 years. No one knows it exists. And no one cares what’s in it.” He asked, “Who’s the leader of the military?” The anchor said, “Hosni Mubarak,” and the expert said, “He’s your next president.”
Two things struck me about that. First, how naïve we are about what constitutions are and what they mean around the world. And the second thing, the reason for the first, is how much reverence we have—in the United States and very few other countries—for this document.
Many things are miraculous about the Constitution. The first is that, somehow, on this edge of the civilized world 250 years ago, there could have been a collection of such political geniuses as to have actually written it.
The second miracle is the actual substance of it, the way that these people, drawing from Locke and Montesquieu and from the Greeks, created an extraordinary political apparatus that a quarter of a millennium later works and has worked with incredible success over these many years.
But the third miracle, and the one that I think we appreciate the least, is the fact of the reverence that we have for it. This is as rare as the other two elements that I mentioned. This reverence is so deeply ingrained that we don’t even see it; we just think it’s in the air that we breathe. But it is extraordinarily rare. It exists in only a handful of countries. For almost all of the world, it is completely alien.
I remember when the British decolonized Africa, in the late ’50s and early ’60s, and they had these great ceremonies transferring power to the local new institutions, which were all established in imitation of the British system. You’d see the governor general arrive wearing a wig, and he would invest power in the new prime minister and in the new high court and within six months it had all been swept away because it was artificial, it was not intrinsic and there was no reverence for those institutions. It takes time. In Britain, it’s been around for eight centuries, and they manage a constitution that’s actually unwritten, which is even more difficult than what we do. But it is ingrained in the consciences of the people.
Consider the oath of office that we take for granted. I remember taking it 30 years ago, and how moved I was by the words and by the idea. Whenever we bestow upon anyone the authority to wield the power of the state over free citizens, we make them swear to protect not the people, not the nation, not the flag, but the Constitution of the United States. A piece of paper. Of course, it stands for the pillars of the American experiment itself: the ideas, the structures, the philosophy that define a limited government with enumerated powers, whose mission is to preserve liberty and individual rights.
This is a gift—that we intrinsically have this sense of reverence for the Constitution. And it’s important to remember that it is a gift from the past. It is not something that we can in any way credit to ourselves. If anything, recent generations have allowed that kind of reverence to diminish, to bleed away over the decades, as we try—as it were—to adapt constitutionalism to modernity. This is in particular a liberal specialty: the idea of the living, breathing, ever-changing, ever-whimsical new Constitution that evolves day by day. And that is why a new conservative idea is now focused on a revival of constitutionalism. We can almost say that this new conservatism is, in essence, a constitutionalism in and of itself.
First, a bit of history for context. In the 20th century, liberalism outgrew its 19th-century roots—the classical individualism of John Stuart Mill and others—and it fell in thrall to the romantic progressivism of the age. Mill held that truth emerges from an unfettered competition of ideas and that individual character is most improved when allowed to find its own way, unmolested and with government standing to the side. But that vision was insufficient for the ambitions of 20th-century liberalism. It lacked glory and it lacked sweep. Twentieth-century liberalism’s newfound perfectionist ambitions—reflected in its current euphemism, progressivism—sought to harness the power of government, the mystique of science and the rule of experts to shape society and individual character, and bring them both, willing or not, to a higher state of being.
Contemporary conservatism is a reaction to precisely that kind of overreaching, overarching ambition. It is deeply skeptical of belief in a progressive history or a redemptive politics. It believes that the first duty of government is to conserve what is, and most especially the great gift of the Enlightenment: the autonomy of the individual and the universe of free associations—the essence of civil society that Tocqueville saw was so essential to American democracy, what Edmund Burke called “the little platoons”—that are created beneath, against and apart from the behemoth of government.
Conservatism’s choice, among all the great modern revolutions, is always the American Revolution, with its constitutional structures that limit and contain power, that create checks and balances to frustrate tyranny and that view government as subordinate to the individuals from whom it derives its just powers. The conservative instinct is skeptical and individualistic, and, in the American context, constitutional.
What’s so remarkable is that constitutions are highly reactionary documents. The very essence of a constitution is to constrain the enthusiasms of a future that one cannot even see. In America, constitutionalism demands that even the most distant progeny swear allegiance to a past embodied in a document written in the late 1780s. If “tradition…is the democracy of the dead,” as G. K. Chesterton had it, then constitutionalism—which is ancient wisdom rendered into legal code—is the tyranny of the dead, the ultimate reach of the past into the future.
And in America, it succeeded. The propagandist Lincoln Steffens famously said, upon visiting Bolshevik Russia shortly after the revolution: “I have seen the future, and it works.” American constitutionalism declares: “We have seen the past, and it works.” Paradoxically, for all the forward-looking, blue-sky, futuristic spirit of its people, the astonishing stability, majesty and success of the American experiment owe much to the inherent restraint and conservatism of its original constitutional blueprint. Compare the American Revolution and its prudential institution-building with the near-contemporaneous French Revolution—the apotheosis of political romanticism—with its worship of reason and abstraction. It is no accident that France is on its Fifth Republic, while America is still on its first.
But we need not look that far back into history to understand why we celebrate Constitution Day. Consider what has been happening in our contemporary world. Today, Americans are in the midst of a great national debate over the power, scope and reach of the government that was established by that document. The debate was sparked by the Obama administration’s bold push for government expansion: a massive fiscal stimulus, Obamacare, financial regulation, various attempts at controlling the energy economy and other attempts to regulate the private and economic life of Americans.
Obama’s vision is one that seeks to move America away from its tradition of a constitutionally restrained and individualistic system to a system more like the social democracies of Europe. I think he has been rather open and honest about that, and for that I give him credit. He unveiled a plan, very openly speaking in those terms—of changing America fundamentally—within a month of his succession to office.
Incidentally, my favorite way to understand this kind of vision is with a story famously told about Winston Churchill, shortly after he lost the election of 1945. Clement Attlee, the socialist, became the prime minister, and Churchill became leader of the opposition. One day Churchill went down to the men’s room at the House of Commons—that’s as risqué as the story gets—and he sees Attlee standing at one of the urinals. The men’s room is empty otherwise, and yet Churchill deliberately walks to the other end of the men’s room, 18 stalls away, and Attlee is rather surprised. And so he calls out and says, “Feeling a bit standoffish today, Winston?” To which Churchill replied, “No, my dear Clement. It’s just that anytime you see something large, you want to nationalize it.” I love that story as much as you do, but I digress.
In America today, the kind of social democratic vision promoted by President Obama has engendered a spontaneous, popular countervailing reaction. This movement has been called the Tea Party, but in reality it is much more widespread. It calls for a more restricted vision of government that is more consistent with the intent and the aim of the Founders.
I would call it constitutionalism, or a return to constitutionalism. And what’s interesting is that, in essence, constitutionalism is the intellectual counterpart and the spiritual progeny of the originalism movement that we see in jurisprudence. Judicial originalists (led by Antonin Scalia and other notable conservative jurists) insist that legal interpretation be bound by something—namely, the text of the Constitution as understood by those who wrote it and their contemporaries. Originalism—once scorned as a kind of fringe tendency—has now grown to become the major challenger to the liberal “living constitution” school of thought, under which high courts are channelers of the spirit of the age, free to create new constitutional principles accordingly.
What originalism is to jurisprudence, constitutionalism is to governance: an appeal for restraint rooted in constitutional text. Constitutionalism as a political philosophy represents a reformed, self-regulating conservatism that bases its call for minimalist government—for reining in the willfulness of presidents and congresses—in the words and the meaning of the Constitution.
What does this mean in practical terms? Let me give an example and contrast constitutional conservatism with its nearest predecessor, the compassionate variety of George W. Bush. Its heart was in the right place, but compassionate conservatism failed to endure, not just for practical reasons—profligate spending and expansion of government—but because of its philosophical shortcomings.
First, its very name implied that other conservatisms are not compassionate, conceding the central liberal premise that small government and belief in markets is hardhearted, rather than being a philosophy that is better suited to organizing society and, among other things, helping the poor and the disadvantaged to flourish.
The second problem with that variety of conservative thought is that it is arbitrary. It believes in small government except when the president decides there is an overriding imperative to provide a prescription drug benefit or launch a massive African program for AIDS. Now, I have no particular objection to either of these noble initiatives. But here’s the problem: Why AIDS and not river blindness? Why Africa and not the scourges of the poor precincts of South America or Asia? Why prescription drugs for seniors, but not for children? It is undisciplined, and that’s why it has trouble as a philosophical proposition, as well as having all the practical difficulties of tending to encourage the expansion of government.
The new constitutionalism is a kind of self-enforced discipline—guided by a conscious grounding in constitutional text. Its first symbolic moment occurred this January, when the 112th House of Representatives opened with a reading of the Constitution. Remarkably, this had never been done before in American history, perhaps because it had never been so needed. The reading reflected the feeling, expressed powerfully in the last election, that we have moved far from a government of constitutionally limited and enumerated powers, and in the direction of government constrained only by its perception of social need. The most galvanizing example of this expansive shift was the Democrats’ health care reform, which aimed to revolutionize one-sixth of the American economy.
The most interesting and encouraging aspect of the pushback against this government power-grab was the form it took. There was, of course, the usual opposition on the usual grounds for objecting to welfare state expansion: that it was ruinously expensive, and therefore unsustainable economically, and that it was introducing massive inefficiencies, complexity and arbitrariness that would degrade the entire medical system itself as well as contributing to our looming national insolvency. That kind of protest and those kinds of arguments would have been the norm in preceding decades and it might have stopped there.
But this time, an additional argument arose and became very powerful: constitutional illegitimacy. This objection manifested itself in two forms: popular opposition and political argument on the one hand, and serious legal challenge on the other. The object of the aversion on the part of conservatives was the individual mandate—the requirement by the federal government that every citizen must buy health insurance from a private entity, under the penalty of a fine from Washington. From town hall to town hall, from campaign debates to arguments on the floor of Congress, people instinctively felt and saw that this was a bridge too far. That on principle, even if Obamacare was economical, beneficent and efficient, it was impermissible to force a citizen to do something against his will—not just to prohibit certain actions, but to compel the positive undertaking of action—simply to promote what the government saw as some social good.
Even more interestingly, it spawned a legal challenge that was at first dismissed by the better thinkers in Washington as just the work of fringe elements. Democrats were extremely dismissive of this constitutional objection at the beginning. Yet within several months the legal challenge was joined by a majority of the 50 states. The basis of the argument was that the government had exceeded its enumerated powers.
I want to make one point about how refreshing that line of argument is. It’s a subtle point, but one that I believe is important to understand and to emphasize. The traditional defense against government encroachment over the last decades has not been to argue about enumerated powers, but instead to resort to the Bill of Rights and the claim of an inviolable sphere of freedom and sovereignty for the individual: “You can’t do X because it goes against the individual rights of Y as guaranteed in the Bill of Rights.” But 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 new argument does not depend on the Bill of Rights. There is no proposed amendment stating “Congress shall pass no law mandating that you engage in a private contract with a private entity.” Rather, the new argument rests on the basis of enumerated powers. It is a stronger attack on big government because it posits that it is government, not the individual, that is constrained by a sphere surrounding it—a sphere whose boundaries are defined by the enumerated powers in the Constitution, beyond which government may not go.
The essence of constitutional power has always lain in the fundamental Madisonian idea of a government of enumerated powers. Indeed, at first it was thought that a newly born United States would not need a Bill of Rights that would enumerate rights against a government. It was assumed that after the tyranny of the British king and parliament, Americans would simply accept a system in which the limited powers of the branches of government, spelled out in the Constitution, would be a sufficient bar to overreaching. And as a fail-safe, the separation of powers and the inherent rivalry among the branches would check the ambitions of any potential tyrants.
There were skeptics, of course, who thought that this was not barrier enough. They insisted on the Bill of Rights, not trusting that the enumeration of powers would be enough to actually prevent tyrannical rule. They ensured that each citizen would explicitly be given a sphere of inviolability in the form of rights against the government—inside of which the citizen remains sovereign and free.
Over the last century, with the ascendancy of the progressive and liberal tradition, with the expansion of government and its regulations, dictations and overall presumptions, the Bill of Rights has gone from being a simple checklist of areas regarding which “Congress shall not” to being a last redoubt of the individual against governmental power which otherwise sees itself as unlimited.
We are now witnessing, quite remarkably, a serious revision of this strategy. For most of the 20th century, protection against big government was to be found in individual rights. Now a more ambitious challenge to big government is emerging: an insistence that the enumerated powers of Congress and the presidency strictly define the limits of their competence, that government’s power ends long before it intrudes upon the individual rights in the first 10 amendments.
Government is limited to its sphere, and that means that everything outside of it—which is everything else in life—is the sovereign domain of the individual and of civil society. It’s akin to the difference in figure-ground perception. With the focus on enumerated powers, the ultimate objective is to restrain the government and to keep it in a box where it cannot touch anything else, whereas a focus on the individual leads to the traditional defense that draws an impenetrable box around the individual, but everything outside of it is ceded to government.
Which is the better way to define the border between citizen and state: an enumeration of powers within which Congress and the president may act but beyond which they may not reach? Or an enumeration of rights delineating the inviolability of the individual, outside of which the government may do nearly anything?
Both approaches are of course valid and valuable. But the revival of the first—the insistence on the enumeration of powers as the limit of congressional power—is a salutary development. The Bill of Rights is the last resort, the last redoubt of the individual against intrusive, overbearing government. But better to meet big government first on the field of battle, on the grounds of enumerated powers.
In some ways, this is a recapitulation of the argument on the basis of the Tenth Amendment, but it has 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. The challenge to the individual mandate is not, at its core, a claim of one or another individual right under the guarantees of the Bill of Rights. The argument is that the use of the Commerce Clause to compel the individual to enter into a private contract in the name of promoting interstate commerce is stretching the clause beyond recognition, beyond reason, and to the point where there would be no conceivable limit to the indefinite and infinite expansion of federal power. If you permit this, then in the future how can you possibly prevent Congress from doing anything it deems necessary to promote some stated policy preference?
This is a frontal judicial attack on big government. The Commerce Clause has been the high road to the expansion of government for 80 years, which is why the framers of Obamacare were so contemptuous and dismissive at the beginning of any constitutional challenge. They knew every administration had been using it ever since the ’30s, so they assumed they’d just use it again. Now that it’s under challenge, they are dismissive no more. They might be rebuked by the courts, which would be a singular victory. Or even if not, they might be rebuked at the polls in November.
That’s why I have hope for the future: What is so extraordinary about the popular and judicial reaction to this federal overreach is the fact that the opposition grounds itself not just in policy but in constitutional principle. This reaction—inchoate, unorganized, undirected—is a wondrous sign of the health of the body politic. The movement has concentrated on exactly the correct constitutional issues and found its strength in constitutionalism itself. It’s not just the traditional arguments that Obamacare or these other expansions are inefficient, that they are not economically sound, that they lead to bureaucratic inefficiency. Those would be valid, but they wouldn’t be enough, not at this time. The issue is important not just for how it will affect one-sixth of the economy and the most vital part of our social and family life. It is equally important for what it portends for future challenges to government overreaching. The argument now is emphasizing and 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.
This does not in any way denigrate the other forms of the conservative critique of modern liberalism. But it does serve to reinforce it. In choosing to focus on a majestic document that bears both study and recitation, this kind of reformed conservatism has found not just a symbol but an anchor. Constitutionalism as a guiding tendency will require careful and thoughtful development, just as its counterpart in jurisprudence—originalism—has required careful thought and development. But the very existence and power of this critique—and of the popular and spiritual support it has received—is a reason for hope, if not for change.
In coming to a close, I’d like to leave you with a more personal reflection. I’ve always had a sense that there is something providential about American history. And this is from somebody who isn’t exactly religious. But starting with the Declaration of Independence and the Constitution: Here is a nation founded on the edge of civilization—a tiny colony, living on the outskirts of the civilized world—that at a time when it needed it miraculously produced the greatest generation of political thinkers in the history of the world. Then a century later, when it needed a Lincoln to save the republic, it found a Lincoln. In the first half of the 20th century, when it needed an FDR to get through the Depression and defeat fascism, it found him. In the second half, when it needed a Reagan to revive the country, he was there.
This is not to say that we will always be able to find our way. I don’t see or expect or wait for the next great figure. But I do think that what I mentioned earlier—the kind of spontaneous popular reaction we saw against government overreach and in support of constitutional principles, which manifested itself so extraordinarily in these past years—is another sign of hope.
There is something about the American spirit—about the bedrock decency and common sense of the American—that seems to help us find our way, something about American history that redeems itself in a way that inspires all. I would summarize it by quoting my favorite pundit, Otto von Bismarck. Not known for his punditry, but he is famously said to have said: “God looks after children, drunkards, idiots and the United States of America.” I think he still does. I hope he still does.
Adapted from the author’s address at the Hillsdale College Constitution Day Celebration in Washington, DC, September 18, 2011
We need no lessons from those who try to undermine the American idea of rights.
In Vienna this week representatives of every country on earth are in conference on human rights. The conference’s principal aim—as is to be expected of any conclave of 183 governments, the majority of which are despotic—is to destroy the human rights idea.
On Monday, Secretary of State Warren Christopher went to Vienna to hold the fort. The results were mixed.
The destroyers—led by China, Iran, Cuba, Vietnam and other paragons of human rights—are not very subtle. Their strategy is to shred the idea of human rights by having the world deny that they are universal and by insisting that they “must be considered in the context of…national and regional particularities and various historical, cultural and religious backgrounds.”
That is UN-ese for saying that human rights is a Western invention and that non-Westerners have their own definition of human rights, which—as a cursory look at China, Myanmar, Iran and other signatories of the so-called Bangkok Declaration of April 1993 will tell you—includes the right to repress.
The only right this gang truly believes in is “the right to development,” meaning their right to Western aid money. That these thugs and kleptocrats should elevate their claim to a piece of your paycheck to an inalienable human right is a sign of the contempt with which human rights are treated in international forums.
Given what he had to deal with, Christopher delivered a speech offering a fine, hard-line defense of the universality of human rights. He even coined a good line: “We cannot let cultural relativism become the last refuge of repression.”
Unfortunately, the attack on universality is only one aggression against the human rights idea, and the easiest to fend off. There is another, more subtle attack that Christopher did not parry. In fact, he caved.
He agreed to embrace the “International Covenant of Economic, Social and Cultural Rights,” a document that for 15 years the United States has refused to ratify. Why? Because it undermines what we in America have long understood by the idea of rights.
The enemies of human rights like to pretend that there are two kinds: “political rights” (free speech, worship, etc.) that the West emphasizes, and “economic and social and cultural rights” (the right to social and economic services guaranteed by the state) that non-Western, non-democratic (and especially communist) countries champion.
What’s wrong with expanding the list of rights to include such nice things as the right to a guaranteed job, the right to “social insurance,” the right “to enjoy the benefits of scientific progress” and the right to “periodic holidays with pay, as well as remuneration for public holidays”?
What’s wrong is that these rights undermine—intentionally undermine—the very idea of political rights. A right is something that the individual claims against the state. You have the right to free speech. It is a personal liberty, a sphere of activity protected from state encroachment.
Economic rights are not claims of the individual against the state. They are claims on the state, demands for things to be granted by the state to the individual. As such, they guarantee the individual’s dependence on the state for the necessities of life and thus are instruments for increasing state power over the individual.
Now if the government owes you economic and social and cultural well-being by right, it is no wonder that many governments then claim that they cannot possibly be burdened with those restrictive “political rights”—say, having to tolerate an opposition—and still deliver the goods. The Soviets used to say: “We have economic rights—a guaranteed job, free health care, cheap transportation. You have political rights—free speech, free worship, free emigration. To each his own.”
Of course, it was all a lie. The Soviet people lived not just in repression, but in abysmal living conditions. They had neither political nor economic well-being. The West had both.
That is because this supposed trade-off between economic and political rights is nonsense. In fact, those societies that cherish political rights also offer their citizens the most economic and social possibilities.
With the fall of the Soviet empire and the exposure for all the world of its Potemkin “rights,” the debate on economic vs. political rights is over. We won. Having won the debate, the administration now proceeds to concede it.
Christopher not only promised to submit the economic, social and cultural rights convention for Senate ratification. He praised it and a few other unratified treaties as “far-reaching documents” and “solemn commitments.” The New York Times quotes State Department officials as saying that they made the concession to avoid “a sterile debate in Vienna.”
Sterile? If everything is a human right, then nothing is a human right. That is the obvious reason for this proliferation of “rights”: to diminish and dilute the very idea of rights. That is why every thug regime in the world is so committed to these “rights.” That is why the gang at Bangkok “reaffirmed the interdependence and indivisibility of economic, social, cultural, civil and political rights and the need to give equal emphasis to all categories of human rights.”
It is true that the original Universal Declaration of Human Rights of 1948 had some economic and social clauses. But that does not justify compounding the error with an entirely new and comprehensively destructive covenant.
“The Universal Declaration of Human Rights,” writes historian Arthur Schlesinger Jr., “…included both ‘civil and political rights’ and ‘economic, social and cultural rights,’ the second category designed to please states that denied their subjects the first.”
Why please them again?
The Washington Post, June 18, 1993