“Freedom is never more than one generation away from extinction.”
—Ronald Wilson Reagan
The nearsighted Ronald Reagan cheated on his eye exam to gain admittance to the U.S. Army cavalry reserve in the 1930s
Reagan was afraid to fly, and took almost no airplane flights for thirty years before beginning his political career
Reagan’s respect for the office of the presidency was such that he would not take off his suit jacket in the Oval Office
Ronald Reagan’s achievements are so massive that even his political adversaries have grudgingly come to acknowledge them. One liberal historian, John Patrick Diggins, wrote in 2007 that Reagan deserves to be considered among the greatest American presidents alongside Washington, Lincoln, and Franklin Roosevelt.
After more than ten years of high inflation, slow economic growth, and rising pessimism, Reagan—the first two-term president since Eisenhower—successfully turned the nation around, broke the back of inflation, stimulated rapid economic growth that saw the creation of 20 million new jobs, and restored the nation’s self-confidence and optimism about the future.
His greatest and most long-lasting achievement was winning the Cold War over the Soviet Union—“without the firing of a single shot,” in the words of British Prime Minister Margaret Thatcher. Princeton University historian Sean Wilentz, a liberal, wrote of Reagan, “His success in helping finally to end the cold war is one of the greatest achievements by any president of the United States—and arguably the greatest single presidential achievement since 1945.”
In both domestic and foreign policy, Reagan reached these achievements despite the fierce opposition and non-stop criticism of liberals and the news media. Just as today, liberals in the 1980s opposed reducing taxes and deregulating the marketplace. In foreign policy, liberals opposed Reagan’s strategy of “peace through strength” as well as Reagan’s tough talk and clear statements about the Soviet Union as an “evil empire.” Most everyone (including some on his own senior staff) thought Reagan was foolish to say in Berlin in 1987, “Mr. Gorbachev—tear down this Wall!” But two and a half years later, the Berlin Wall came down.
The indubitable proof of Reagan’s success is that today even liberals want to claim his legacy—though they can do so only by distorting his ideas. But there is one part of Reagan’s legacy that liberals can’t distort, and that conservatives have tended to overlook in recent years: Reagan’s devotion to the Constitution, and his desire to move the nation closer to the Founders’ views of limited government.
Reagan was the first president since FDR to speak frequently and substantively about the Founders and the Constitution, and he was the first president since Calvin Coolidge to criticize the administrative state that modern liberal constitutionalism has created. This is a remarkable and telling fact. It is largely overlooked today that FDR spoke often about the Founding and the Constitution, and quite differently from Woodrow Wilson. While Wilson was openly critical of the Founding and the Constitution, FDR’s references to the Founding were mischievous—he appeared to be defending or proposing a restoration of the principles of the Founding while in fact attempting a wholesale modification of the meaning of our constitutional order. After FDR, our presidents practically ceased making reference to the Founding or the Constitution—until Reagan arrived.
In a 1979 letter from Reagan to Ben Shaw, publisher of the Dixon, Illinois, Evening Telegraph newspaper, Reagan wrote,
The permanent structure of our government with its power to pass regulations has eroded if not in effect repealed portions of our Constitution. I have been speaking particularly in my talks around the country about the 10th article of the Bill of Rights. The federal government is performing functions that are not specified in the Constitution and those functions should be returned to the states and to the people. Of course the tax sources to fund them should also be turned back.
“There is a threat posed to human freedom by the enormous power of the modern state. History teaches the dangers of government that overreaches—political control taking precedence over free economic growth, secret police, mindless bureaucracy all combining to stifle individual excellence and personal freedom.”
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President Reagan, Westminster Hall, London, 1982
Reagan’s first inaugural address included the most significant discussion of America’s founding principles since Harding and Coolidge. In that speech Reagan declared, “In this present crisis, government is not the solution to our problem. Government is the problem. . . . It is no coincidence that our present troubles parallel and are proportionate to the intervention and intrusion in our lives that result from unnecessary and excessive growth of government.”
He continued, “It is time to check and reverse the growth of government, which shows signs of having grown beyond the consent of the governed” [emphasis added]. Note here that Reagan didn’t rest his argument against the growth of government on the ground of efficiency or effectiveness, but on the constitutional ground of consent as explained in the Declaration of Independence. This had been a constant theme of Reagan’s political rhetoric for more than twenty years, but one that was rarely heard from America’s political class—even from other conservatives. Reagan criticized the size of government, but he was careful to qualify his critique:
“The government’s view of the economy could be summed up in a few short phrases: if it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.”
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Ronald Reagan
It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. . . . Now, so there will be no misunderstanding, it is not my intention to do away with government. It is rather to make it work—work with us, not over us; to stand by our side, not ride on our back.
While this was not really revolutionary, it was controversial—as it challenged the basic premises of the modern centralized administrative state. Liberals had never expected to hear such heresy from the presidential podium. Although many liberals had been shaken by the disasters of the preceding fifteen years, from Vietnam and the Great Society through President Carter’s ineffectual rule, there had never been a point at which the fundamental premises of modern liberalism were attacked from the pinnacle of American power.
It is significant that Reagan rejected the liberal reformist theme, very popular at the time of his election, that the presidency—or our democracy in general—was inadequate to the times.
From time to time, we have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?
Reagan had so fully internalized the thought of his political forebears—including Jefferson, Lincoln, and Roosevelt—that it is not clear whether he knew he was paraphrasing them. But the origin of the ideas Reagan was expressing is no mystery. In his first inaugural address in 1801, President Thomas Jefferson had said, “Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.”
As president Reagan fought valiantly, and with some success, to roll back big government and reestablish sensible limits on its power and reach. But he was often stymied by opposition from Congress and adverse court rulings. He also perceived that his successors might not be as resolute as he was in curbing government growth and holding the line on government spending. Reagan concluded that restraining government in the long run might require constitutional reform.
“The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.’”
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Ronald Reagan
There were two important initiatives in Reagan’s second term that have tended to be forgotten over the years, but that deserve to be remembered today.
First, starting in 1985, and working chiefly through his second attorney general, Edwin Meese, the Reagan administration picked a major fight with liberalism. Meese and Reagan began making speeches and publishing articles arguing that the judiciary (mainly the Supreme Court) should interpret the Constitution according to the “original intent” of the Framers, and that federalism and “coordinate review”—that is, the idea that all three branches, not just judges and lawyers, have a duty and a right to interpret the Constitution—should be revived. After all, the Preamble begins “We the people,” not “We the judges.” As Attorney General Meese put it,
The Age of Reagan: The Conservative Counterrevolution, 1980–1989 by Steven F. Hayward (Crown Forum, 2009).
The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.
In launching a high-profile debate on interpreting the Constitution, Reagan and Meese reopened a fundamental question that liberals thought was settled. No prominent Republican since Coolidge had seriously advanced such an argument. The public fight Meese picked over original intent, legal scholar Jonathan O’Neill wrote, “constituted the most direct constitutional debate between the executive branch and the Court since the New Deal.” Reagan and Meese were attempting nothing less than to wrest the Constitution away from a self-appointed legal elite and return it to the people. The reaction not just of the usual suspects such as the New York Times editorial page, but also of sitting Supreme Court justices—two of them made speeches criticizing “original intent”—and of many prominent voices in the legal academy assured that this issue would not go away. Indeed, it is still very much with us.
Second, starting in 1987 Reagan argued for a package of five constitutional amendments he called his “Economic Bill of Rights.” This represented another way in which Reagan was trying to turn back the liberal legacy of FDR, whose own “economic bill of rights” of 1944 consisted of more things the government would give you by redistributing wealth (such as a right to a job, a right to health care, and a right to housing and food). Reagan wanted to restore the older understanding that individual rights are limits on the government’s power over you, rather than claims you can make against your fellow citizens through expanded government power.
Reagan’s first two amendments were very familiar: a balanced budget amendment, and an amendment granting the president a line-item veto over spending bills, which most state governors have and which enables the executive to reduce spending for individual programs that is often included in large budget bills that the president can’t veto, such as defense appropriations. Reagan had asked for both of these amendments in nearly every state of the union speech during his presidency.
But Reagan’s other three proposed amendments were different and interesting. His third proposal was a requirement for a two-thirds supermajority vote of Congress for all tax increases. The fourth was a constitutional spending limit, so that the federal government couldn’t just slowly (or quickly, as under Obama) increase its share of the nation’s income step by step and year by year. Finally, Reagan’s fifth proposed amendment was a constitutional prohibition on wage and price controls. This last one is the most curious—and an indication of Reagan’s farsightedness. By the late 1980s, inflation had come down, and there was no one arguing that the U.S. would ever want to consider wage and price controls again. Nearly everybody across the political spectrum at that time agreed that the wage and price controls of the 1970s hadn’t been very successful—that, in fact, such price controls could not work. But Reagan knew that times change. Perhaps he anticipated the kind of fiscal situation we have today, with enormous budget deficits and a Federal Reserve Bank running the government printing presses overtime. If inflation returned, a big-government liberal like President Obama might want to bring back wage and price controls as a remedy.
“The Reagan years will be for conservatives what the Kennedy years remain for liberals: the reference point, the breakthrough experience—a conservative Camelot. At the same time, no lesson is plainer than that the damage of decades cannot be repaired in any one administration.”
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Governor Mitch Daniels of Indiana
Constitutional amendments are by design difficult to pass, and Reagan’s economic bill of rights got nowhere in the Democratic Congress of the late 1980s. But in the last two years, the Tea Party has revived Reagan’s economic bill of rights, and various versions have been proposed in Congress since the inauguration of Obama and the 2010 election of a Republican House.
These were not the only constitutional changes Reagan supported. He also supported constitutional amendments allowing prayer in the public schools and restrictions on abortion. The anti-abortion amendment was blocked by a Senate filibuster. But that wasn’t the end of Reagan’s constitutional arguments on the issue.
One of Reagan’s great regrets is that he signed a liberal abortion law in California when he was governor back in 1967. He later changed his mind, and was firmly pro-life by the mid-1970s. His administration did what it could to reduce abortion within the limits of the Roe v. Wade decision, attempting to stop federal funding for abortion clinics and to require parental notification when any underage girl sought an abortion (both of these steps were blocked by federal judges), and to restrict medical research on aborted fetuses.
To mark the tenth anniversary of the Roe v. Wade decision, in the spring of 1983 Reagan published a long article in the Human Life Review, republished in 1984 as a small book entitled Abortion and the Conscience of the Nation. Reagan’s political advisers were nervous about publishing such an article so close to his reelection campaign. Reagan replied, “I might not be reelected. We’re going with it now.” Reagan was the first sitting president to publish a book, and seldom has any president since Lincoln spoken so openly and forcefully about such a contentious moral issue. He was just as direct and unequivocal as Lincoln was about slavery: “Make no mistake, abortion-on-demand is not a right granted by the Constitution.” Roe was an act of “raw judicial power,” Reagan said, quoting Justice Byron White’s scorching dissent, comparable to Dred Scott: “This is not the first time our country has been divided by a Supreme Court decision that denied the value of certain human lives.” Some of Reagan’s language was bracing: “The abortionist who reassembles the arms and legs of a tiny baby to make sure all its parts have been torn from its mother’s body can hardly doubt whether it is a human being.” The media said such a controversial article by a sitting president was “rare” and “unusual.”
The first and most important responsibility of the federal government under the Constitution is to defend the nation from its foreign enemies, and the most important responsibility of the president as “commander in chief” is to see to that defense. This is the central issue in what became known as the “Iran-Contra” scandal, in which the Reagan administration sought to provide covert military aid to the freedom fighters (the “Contras”) fighting to overthrow the Communist Sandinista dictatorship in Nicaragua. Because the issues about the president’s powers under the Constitution that arose during this controversy returned in almost the same form in the controversies that shadowed President George W. Bush after September 11, 2001, Iran-Contra is worth discussing at some length.
The Iran-Contra scandal was a tangled affair that involved some mistakes in judgment by Reagan and his senior advisers—most particularly the decision to attempt indirectly to ransom American hostages that Islamic extremists were holding hostage in Lebanon through arms sales to Iran, still ruled by the Ayatollah Khomeini. Some of the proceeds from the arms sales were diverted to support the Contras in Nicaragua. While the arms sales to Iran were unwise, neither the arms sales nor the diversions of funds to Nicaragua were clearly violations of existing laws, in large part because some of the laws that pertained to these actions were poorly written or ambiguous. In fact, in the subsequent independent counsel investigation, no one was directly charged with crimes for either the arms sales or the diversions of money in this politically charged scandal.
The fact is that Congress, acting inconsistently and irresponsibly for most of Reagan’s presidency, had attempted to tie the president’s hands in the conduct of foreign policy in ways that were at the very least constitutionally dubious. More than once Reagan had complained that it was not possible to carry out foreign policy with 535 secretaries of state on Capitol Hill in the House and Senate.
During the course of the Iran-Contra affair, numerous scholars and intellectuals dusted off John Locke’s Second Treatise of Government—the text that had been the primary inspiration for the Declaration of Independence. Locke’s understanding of the nature of prerogative in the executive was equally important to the Founders as they designed the office of the presidency. Locke had defined prerogative simply as “nothing but the power of doing public good without a rule” (emphasis in the original). Why “without a rule”? Because, Locke explained, “many things there are which the law can by no means provide for. . . . many accidents may happen wherein a strict and rigid observation of the laws may do harm.” Indeed, Locke went as far as to say that “it is fit that the laws themselves should in some cases give way to the executive power. . . . [The executive must have] the power to act according to discretion for the public good, without the prescription of the law, and sometimes even against it.”
Locke’s idea of prerogative power is plainly a holdover, preserved and amplified, from the historically far-reaching power of European monarchs, against which the institutions of parliamentary democracy arose—to check its too frequent abuse and aggrandizement. Executive prerogative is a concept that cannot by its very nature be delimited through formal legal means. And executive prerogative sits uneasily with the formal constitutionalism of American republican thought. No modern constitutional lawyer can accept it easily (though the federal judiciary has been very reluctant to intervene to limit or define it, dismissing several lawsuits brought by members of Congress to clarify the matter). In the scheme of the Founders, the abuse of executive prerogative was meant to be checked by the separation of powers, and congressional oversight is both necessary and proper. But even within congressional assertion of its own prerogative in the positive law, there is clearly scope for the president to exercise his prerogative. The National Security Act, for example, recognizes the general need for secrecy and discretion by providing that the president must notify Congress about covert operations “in a timely manner.” What is “timely”? There are no legislative or judicial parameters of timeliness. Reagan never notified anyone in Congress of the Iran arms sales initiative during the year prior to its exposure in November 1986. But obviously had Reagan notified Congress of the arms transactions with Iran, it would have been on the front page of the Washington Post the next day.
“The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”
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Thomas Jefferson in a letter to John Colvin in 1810
Examples of presidential use of prerogative power in American history would include Jefferson’s decision to consummate the Louisiana Purchase despite his own constitutional doubts; Lincoln’s suspension of habeas corpus in 1861 (the Constitution expressly stipulates that suspension of habeas “in times of rebellion” is a congressional, not executive, power); Theodore Roosevelt’s sailing of the Great White Fleet in 1907 in the absence of congressional authorization; and Franklin Roosevelt’s various transgressions of the Neutrality Act, among others. These and other examples fit Alexander Hamilton’s conception in The Federalist of the presidency as the locus of the government’s “extensive and arduous enterprises.” Jefferson, channeling Locke, argued in 1810 that there are “higher” duties than “strict observance of the laws.” But Nixon showed the limits of presidential prerogative when he infamously argued that “If the president does it, it’s not illegal”—an assertion the American public rejected.
As between Jefferson and Nixon, how is this delicate matter to be judged? While scholars and constitutional lawyers will argue for bright-line standards, the example of Nixon suggests the answer that Locke gives explicitly: the people shall judge. “The people,” Locke wrote,
observing the whole tendency of their actions to be the public good, contested not what was done without law to that end, or, if any human frailty or mistake—for princes are but men, made as others—appeared in some small declinations from that end, yet it was visible the main of their conduct tended to nothing but the care of the public. The people, therefore, finding reason to be satisfied with these princes whenever they acted without or contrary to the letter of the law, acquiesced in what they did. . . .
The outcome of the constitutional struggle over the Iran-Contra matter would be decided in that exact way: by public judgment of the political clash in Washington. The joint House-Senate committee investigation of the Iran-Contra affair—an investigation Democrats likened to Watergate and hoped would end with Reagan’s impeachment—took a turn President Reagan’s critics had not expected when Lieutenant Colonel Oliver North appeared and delivered a devastatingly effective attack on liberals in Congress for their irresponsible meddling in foreign policy. Public opinion decisively shifted in Reagan’s favor, and the liberal dream of driving another Republican president from office died quickly. In other words, the people judged, just as Locke said they should, and judged that Reagan had acted properly, if not necessarily wisely.
During the 1980 campaign Reagan told the Wall Street Journal, “I think for a long time we’ve had a number of Supreme Court Justices who, given any chance, invade the prerogative of the legislature; they legislate rather than make judgments, and some try to rewrite the Constitution instead of interpreting it.” Reagan set out to appoint conservatives to the judiciary in a more serious and systematic way than any administration in history.
But Reagan had promised in the 1980 campaign that he would make a woman “one of his first” appointments to the Supreme Court, and when Justice Potter Stewart retired from the Court in 1981, Reagan decided to fulfill this campaign promise immediately. In 1981 there were precious few Republican women with the judicial qualifications for such a high appointment; women accounted for fewer than 5 percent of all law school graduates ages 45 to 60 in 1981, and among them was Arizona Court of Appeals Justice Sandra Day O’Connor.
There were doubts about O’Connor at the time, but Reagan was satisfied that she would be a sound constitutional justice. In a personal letter to evangelical writer Harold O. J. Brown, Reagan wrote, “She has assured me that she finds abortion personally abhorrent. She has also told me she believes the subject is one that is a proper subject for legislation. . . . I have full confidence in Mrs. O’Connor, in her qualifications, and in her philosophy.”
O’Connor would later become a disappointment to conservatives, but Reagan’s confidence in O’Connor was initially justified. During her first years on the Court she was a solid conservative, voting with her Stanford Law School classmate and fellow Arizonan Justice Rehnquist in 92 percent of the Court’s decisions. Throughout her tenure on the Court she generally remained a champion of property rights, writing the strong dissent in the infamous Kelo case in 2004 that upheld the power of local governments to take private land to give to other private land owners, in clear violation of the plain language of the Fifth Amendment’s “takings” clause. In the first case about abortion to reach the Court after O’Connor joined, she voted with the dissenters in criticizing Roe v. Wade for forcing courts “to pretend to act as science review boards.” Roe “is clearly on a collision course with itself. . . . there is no justification in the law or logic for the trimester framework adopted in Roe,” O’Connor said. But she changed her mind in later abortion cases, and also voted to uphold affirmative action racial quotas in college admissions.
Reagan’s second appointment to the Court in 1986 was Antonin Scalia, the first Italian-American to serve on the Supreme Court. He was a grand-slam home run for defenders of constitutional originalism, and he was confirmed by a vote of 98–0 in the Senate.
Reagan’s third appointment to the Court was Anthony Kennedy, in 1987. Kennedy has often been a disappointment to conservatives; he is a very inconsistent Justice. But this appointment deserves an asterisk, like Roger Maris’s home run record. Kennedy was Reagan’s third and last choice for the Supreme Court seat that came open in 1987. His first choice was the stellar Robert Bork, whose nomination was expected to sail through the Senate with little difficulty. Even Senate Judiciary Committee chairman Joe Biden said he’d vote for Bork. But after a scurrilous attack led by Ted Kennedy and the entire apparatus of the left, Democrats in the Senate voted down Bork’s nomination—and in doing so changed judicial politics forever. The incident even gave rise to a new transitive verb in many dictionaries: “Borking, to Bork,” meaning to scuttle a nomination by means of a campaign of relentless public attacks on the character and opinions of the nominee.
Reagan was so angry that he said he was tempted to appoint no one and leave the seat empty until the next president took office, but then he decided to name someone “they’ll object to just as much as the last one.” That person was Douglas Ginsburg, a jurist of strong libertarian credentials whose appointment was scuttled when it was revealed that he had smoked marijuana as a Harvard professor. That left only Anthony Kennedy on the list of potential appointees who had been reviewed by the Justice Department. Reagan knew that Kennedy was a weak choice from his point of view. Former Attorney General William French Smith told Reagan, “I know Anthony Kennedy, and he won’t be there in the trenches.” But with no other nominee in reserve, Kennedy got the nod.
With the defeat of Bork and the weakness of O’Connor, Reagan lost his chance to reshape the Supreme Court decisively. Still, his appointments—including even Kennedy on many issues—did move the Court in a more conservative direction. And Reagan was very successful in placing principled conservatives throughout the district courts and the federal circuit courts of appeals.
Because of Reagan’s overall record of understanding, articulating, and implementing principled constitutionalism, the two disappointing Supreme Court appointments only lower his constitutional grade to an A-.