The Constitutional Conservatism Newspeak

“Liberals are the true conservatives of this generation,” a growingly popular line of argument goes, “because liberals are the guardians of the new American tradition—the New Deal tradition—against the reactionary onslaught of the fake, revanchist ‘conservatives.’ True constitutional conservatism,” the argument continues, “would defend Supreme Court decisions of the past 70 years that approved centralized administrative rule, and would recognize that those decisions comprise the operative constitution of the new American order.”  As my friend and former Chapman law professor John Eastman put it in his recent review of UC Irvine law school dean Erwin Chemerinsky’s book The Conservative Assault on the Constitution, “the Constitution began in the 1930s when the Supreme Court finally acceded to the radical expansion in federal power pushed by President Franklin Roosevelt and his New Deal, and has remained a one-way ratchet ever since.”  According to liberal constitutional conservatism, then, any effort to pare back the advancements of the centralized administrative state by pointing to limits described in the original Constitution is therefore “not an ‘assault’ on the New Deal but on the Constitution itself.”

The approach brings to mind a passage from Gulliver’s Travels.  As Jonathan Swift put it,

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind.  These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

The “assault” Dean Chemerinsky derides, then, is not on the big-“C”-Constitution but the small-“c”-constitution as judicially amended and legislatively subverted by New Deal and post-New Deal thinking—that is, the constitution that says “The federal government, yes, can do most anything in this country.” Prof. Eastman describes this “clever” approach taken by Dean Chemerinsky and his liberal colleagues as follows:

[E]ach leftward evolution of the Constitution’s meaning becomes a new fixed baseline of constitutional law, and any move to return to the original meaning amounts to a repudiation not of the wayward interpretation but of the Constitution itself. 

. . . .

According to his methodology, every precedent, however short-lived, that pushes the Constitution’s meaning in the preferred direction, i.e., leftward, becomes the new benchmark for what the Constitution itself says, while any precedent to the contrary is simply an “assault.”

As for the particulars of his argument, Dean Chemerinsky offers little that anyone other than friends of the hard left can agree on.  For example, not even Bill Maher defends the Democrats’ shameful politicization of the “advice and consent” process to freeze [block] Robert Bork’s confirmation to the Supreme Court.  Yet Dean Chemerinsky hales it as a victory that ensured the longevity of liberal judicial amendments to the constitution, abortion being chief among them.  On that topic, Dean Chemerinsky says the key question is “who would decide whether the fetus before viability is a human person: each woman for herself or the state legislature.”  To this, Prof. Eastman responds:

I have never seen the Left’s position on abortion phrased quite so starkly, but it should put to rest the myth that the “progressive” view in support of a “living Constitution” is designed to advance human dignity.  That anyone, individual or legislature, gets to determine the human personhood of another human being is a notion that I had thought we had buried in the ashes of the Civil War.  It bears an uncanny resemblance to the claim made by slave-owners that it was their moral prerogative to determine whether blacks should be treated as property or as human beings.  If “the conservative assault on the Constitution” is an assault on that proposition, then count me among the assaulters in chief.

Moving beyond the abortion issue, nearly every other case analyzed by Chemerinsky involves conservatives chipping away at Progressive decisional law, not U.S. Constitutional law. Supreme Court decisions rolling back affirmative action and arcane forced desegregation programs, permitting crèches and Ten Commandments displays on state or local government property, paring down the admittedly prophylactic exclusionary rule of criminal evidence in aid of good faith law enforcement, and so on.  Thus, as Prof. Eastman puts it:

The ability to manipulate the Constitution’s text to arrive at new and radically different conclusions than originally intended is the hallmark of the “living constitution” enterprise.  Opposition to the enterprise may be an “assault” on the living constitution enterprise, but hardly one on the Constitution, as the author claims.

In other words, it is only the post-1930s “constitution” that concerns Dean Chemerinsky. He calls the pre-1947 interpretation of the Establishment Clause—which, according to the First Amendment’s text, applies only to “Congress” and not state and local governments—a “radical” one; he expresses relief that Clarence Thomas is the only Supreme Court Justice who expresses support for the actual words in the Constitution.  Whatever constitution Dean Chemerinsky thinks conservatives are “assaulting,” then, it’s not the document preserved under glass in Washington.

[Cross-posted at Notes From Babel]

Please do be so kind as to share this post.
TwitterFacebookRedditEmailPrintFriendlyMore options

33 thoughts on “The Constitutional Conservatism Newspeak

  1. Pingback: The Constitutional Conservatism Newspeak

  2. Bork’s nomination wasn’t “frozen”: it was defeated, both in committee and in the full Senate, on the basis of his past actions, writings and decisions. Given his dangerously narrow view of the First Amendment, that’s a good thing for anyone who values liberty. W hat’s shameful is that it taught nominees to tell innocuous-sounding lies, and they have been allowed to get away with that, e.g. Clarence Thomas’s whopper about not having an option about Roe V. Wade.

    Report

    • Mike:

      And what of Teddy K’s outright and bald faced lies about Bork? Teddy and the rest of his reputation smearing Dem ilk did teach folks about what to say and the Dems have only themselves to blame.

      Report

      • What lies? You mean Kennedy’s statement that “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters.” Actually, that was all pretty accurate; Bork wrote a law review describing the Civil Rights Act of 1964 as based upon a “principle of unsurpassed ugliness.” He specifically objected, in that article, to prohibiting segregated facilities.

        Bork did not–and, as far as I know still does not accept a constitutional right to privacy, and categorically rejected Roe v. Wade.

        By the way, he was perfectly ok with limiting constitutional rights beyond the text. He contended, for example, that only purely political speech was protected by the First Amendment in his infamous “Neutral Principles and the First Amendment.”

        Here’s a quick round up, with cites, by Frederick Schauer–himself no enemy to the Reagan Administration; he served on the Meese Commission: http://www.novelguide.com/a/discover/eamc_01/eamc_01_00263.html

        (Link is excerpted from the Encyclopedia of the American Constitution).

        Even Bork’s defenders are pretty much reduced to the argument that Bork would not *like* these consequences, that they are merely the result of the decisions made by democratic majorities under the constitutional vision of Bork. That’s not all that helpful, an argument, though; Bork was up for a slot as a Supreme Court justice, not receiving a moral evaluation, and how he would rule was what was at issue.

        My old law professor Henry Monaghan, an admirer of Bork, wrote an article acknowledging that he had been in error in thinking that the Senate was obliged to confirm Bork if he was intellectually and ethically qualified and that his ideology was not fair ground. See “The Confirmation Process: Law or Politics,” 101 Harv L. Rev. 1202 (1988).

        Report

  3. “permitting crèches and Ten Commandments displays on state or local government property, paring down the admittedly prophylactic exclusionary rule of criminal evidence in aid of good faith law enforcement, and so on.”

    These are not matters of Constitutional law? (and that’s beside the fact that I think neither are good things – 10 years of reading Balko (and watching COPS) has made this law&order type believe that ‘good faith law enforcement’ is a contradiction in terms)

    Report

    • They lie outside the purview of the Constitution because they have nothing to do with the Constitution’s purpose, which is to set up the rules governing the union between the several states.

      In his first book, Bork points out that the slave states politicized federal jurisprudence first, with the Dred Scott case. The plaintiffs sought an extra-textual remedy from the Court, and they got it; the majority cited common law and used their Constitutional office to enjoin free states to do something that they couldn’t point the text of the Constitution towards.

      It was bad law, it set a bad precedent, one which ultimately tore the nation apart. I’d put reproductive law and nick-nack law and police arm-twisting law in the same category: matters which are better dealt with at a lower level, where the will of the people can be manifest, where local conditions can be taken into account, and where there might actually be a relevant text from which to draw.

      Report

      • So we just ditch the First Amendment then? It’s got nothing whatsoever to do with “the rules governing the union between the several states.”

        Come to think of it, we could throw out the Second Amendment, the Sixth, the Eighth, the Thirteenth, a lot of the Fourteenth…

        Or may I suggest to you that not only does the Constitution have other purposes besides “governing the union between the several states,” but those purposes are actually expressed in the document itself, in the form of the preamble?

        Report

          • How about this?

            “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

            Now, that does many things, but one thing it clearly does not do is to “set up the rules governing the union between the several states.” There’s nothing even in that passage about the states.

            But that’s okay, because the Constitution’s purposes are much larger than Matt declares them to be. While you are correct that the preamble is “aspirational,” that’s also what we’re talking about here — the purposes that are thought proper to the Constitution. Those purposes include — but are not limited to — describing the union among the states. Other things the Constitution aims at doing are “to establish justice” and to “secure the blessings of liberty.”

            On those points, the First Amendment is quite in order. On Matt’s extraordinarily narrow reading, it is not.

            Report

            • Exactly. The text of the Constitution quite literally contains principles as well as regulations/laws. Everything would be much simpler if it were only the latter, but it would also be a much worse Constitution.

              Report

              • Okay, so I did. Were the amendments out of order?

                Even if they weren’t– even if we grant some special, outside status to amendments, which I don’t think is necessary, but which we’d have to call into being to use his criterion — there’s still a lot in the original text that doesn’t govern the union between the states.

                Consider Article III’s guarantee of jury trial.

                Or the prohibition on titles of nobility.

                Or most of the powers of Congress.

                Or — for that matter — the regulation of the slave trade.

                Report

                • The original Constitution delineates a piece of political architecture. It provides an answer to the question of which of the powers of the several states will reside in the central government, either to be exercised exclusively or concurrently with the states’ exercise. Hence, the delegations of power specified in Article I. The provisions with regard to the slave trade qualify the delegated power to regulate foreign trade. The provision you make reference to regarding jury trials is a note on legal procedure to be followed in the newly-erected federal courts. There is also a brief discussion of venue.

                  In two sections of Article I, limits on the power of the state and of Congress are specified. Even most of these are not concerned with privileges and immunities from state action. The exceptions concern bills of attainder, ex post facto laws, and habeas corpus. Together, they amount to a modest fraction of the verbiage in the document.

                  It was an objection to the original document that it did not delineate privileges and immunities, hence the Bill of Rights. (Which is a mess, much like the rest of it).

                  Report

                  • The original Constitution delineates a piece of political architecture.

                    Among other things, yes.

                    It provides an answer to the question of which of the powers of the several states will reside in the central government, either to be exercised exclusively or concurrently with the states’ exercise. Hence, the delegations of power specified in Article I.

                    Incorrect. The people, not the states, created the Constitution. This is evidenced both in the document’s own language and in the form of the conventions for ratifying and amending it. The Constitution is a creation of the people as a whole, not of the states.

                    Report

                    • The people, not the states, created the Constitution.

                      That is irrelevant to the point to which it refers.

                      It is also wrong. The conference which composed the document was composed of state delegations dispatched by the state legislatures; the final article defined ‘ratification’ in terms of the number of state conventions granting their approval.

                      Report

                    • My point is both correct and relevant.

                      It is correct, because the authors of the Constitution were delegated from the state governments, but they themselves thought it improper for the state governments to ratify what they had produced (which was, after all, far in excess of what they had been authorized to write). Thus the mechanism by which the Constitution was approved.

                      It is relevant, because if the Constitution were merely a set of rules governing relations among the states, then much of its content, including the Bill of Rights, would be improper to its purpose, as was argued upthread. I’ve shown repeatedly why this was not the case, citing sources from text and historical fact.

                      Report

    • The Constitution doesn’t explicitly require the exclusionary rule. All it says is that you can’t conduct search without a warrant. The exclusionary rule is one way of deterring illegal search and seizure, but it’s not the only way, or even clearly the best way. It’s obviously suboptimal in that it requires us to let people go free when we have evidence that they’re guilty.

      An alternative might be to make police officers or departments criminally or civily liable for illegal searches, but still allow the use of illegally obtained but otherwise legitimate evidence. In principle this would seem to be superior to the exclusionary rule (stronger deterrent, and doesn’t require us to let criminals go free), but given the proven ability of police get away with murder, literally, it’s not clear how well this would work in practice.

      Report

  4. “According to liberal constitutional conservatism, then, any efforts to pare back the advancements of the centralized administrative state by pointing to limits described in the original Constitution is therefore “not an ‘assault’ on the New Deal but on the Constitution itself.””

    That’s a very good point. The libs don’t necessarily call that play every time out, but whenever they perceive the big pieces of the welfare state in jeopardy. It’s fairly typical even that not particularly religious libs will refer to Social Security or Medicare as sacred. Well guess what libs? Social Security and Medicare are not the fundamental social compact of America. We have an actual founding document. It’s called the Constitution.

    Report

  5. I’m frankly a little baffled by the notion that Social Security (or pick your New Deal program) as a federal program is unconstitutional and a travesty, but Social Security implemented as a patchwork of programs across the states, or, more likely, model law or compact between all 50 states is fine and dandy.

    Report

    • There is a distinction between something that is advisable or optimal policy and something which is congruent with positive law.

      If you want to fry someone’s circuits, ask them if they would favor a constitutional amendment which would legitimate Social Security and perhaps some other post 1932 innovations.

      Report

  6. I say again: I would like to see what an accurate Constitution (hell, merely an accurate Bill of Rights) would read like.

    Report

    • Heh. One that affirms all the things the speaker wants affirmed, no doubt.

      What I don’t get is the hostility to social programs at the constitutional level. I’ve never seen an argument which says ‘I personally actually really love social programs for pragmatic and moral reasons, and I think they provide an important function in our society, but unfortunately, they’re inconsistent with the Constitution. So they gotta go.’

      Why is that?

      Report

  7. Pingback: The Polis in Post-Modernity III: Constitutions Written and Oral, Living and Dead — The League of Ordinary Gentlemen

  8. Supreme Court decisions rolling back affirmative action and arcane forced desegregation programs, permitting crèches and Ten Commandments displays on state or local government property, paring down the admittedly prophylactic exclusionary rule of criminal evidence in aid of good faith law enforcement, and so on.

    These are **only** in the Bill of Rights, but so what? Those are some pretty damned important amendments, and I’d like to see you argue that any of these are not covered by the Bill of Rights.

    If you want to see arguing from opinion to ruling, check out the ever-so-liberal Scalia. He is about as anti-Constitutional as you can get.

    Report

Comments are closed.