True Conservatives? True Constitutionalists?
The Yuval Levin piece on constitutional conservatism I flagged recently continues to kick up commentary -- not all of it favorable. To some older-school conservatives I've spoken with, it's an elegant recitation of a familiar narrative, but problematic for just the same reason as the narrative itself: a total unwillingness to confront the problems lurking within. Since that kind of confrontation rarely finds its way to the heart of the public political conversation, that critique can come off as bad faith, or as mere pouting. But Conor Friedersdorf's latest gives us something to dig into.
Conor argues that the Tea Party is constitutionalist in name only. They depart, he claims, from the Founders' vision of constrained executive power, preferring today's vast and growing national security state. Indeed, their preference for (ahem) "all the war powers that John Yoo would give" a President suggests that they've forgotten the "historical fact that war profoundly empowers and expands the state more than anything else" -- its written constitution be damned.
This strikes me as an overdrawn portrait of the Tea Party, which is more libertarian and more of a hodgepodge than Conor wants to allow. But even if we stipulate that Conor is right to apprehend a significant portion of Tea Partiers who favor the wars on drugs and terror as we know them, we quickly run into trouble trying to take their claim to constitutionalism away from them. Between the past stance of the Founders on war and the executive and the present stance of the conservative establishment is a little thing called Abraham Lincoln.
Though there will probably never be a real end to the argument over whether Lincoln destroyed the 'old' Constitution in order to save the Union, the continuities were profound enough that today many intelligent beings left and right maintain adamantly that Lincoln's understanding of executive power and constitutionalism amid crisis was comprehensive, from his armed recovery of the Confederate states ("out of their proper relationship with the union") to the suspension of Habeas Corpus and all the rest. Even an ardent constitutionalist can believe it is hard to cherish our founding Document amid the rubble of a Union destroyed, whether by secession or by nuclear bombs.
As Ricochet members and readers know, there just are serious disagreements between serious legal theorists as to whether the Constitution permits the expansion of executive powers during crisis time to the degree and of the kind that we've seen since 9/11. It seems to me inadequate to assert that one side of the debate actually rejects constitutionalism -- or even that the other side is composed of 'real' constitutionalists who refuse to step outside the confines of the document for their political foundations. At best, the charge should be that the war-powers folks underrate the risk their position poses to constitutionalism. But the retort here is obvious: the risk posed by our current crisis, and the enemies who brought it upon us, is even greater. At which point our dispute leaves the ground of political theory and enters the realm of political practice.
The weightier point to be made is that both types of constitutionalists in fact find their true political foundations outside the Document itself. Both understand the Constitution to be, at bottom, a means -- to the end of Liberty for one, to the end of the Union for the other. Once we admit this, constitutionalism can actually be understood as it needs to be -- as an attitude of prudential cooperation between the party of Union and the party of Liberty. We can, should, and must argue over how that cooperation is best to be forged. But we should recognize from the start that the best way to have that argument is to step back from the temptation to declare that our team, and not the other, belongs to the true constitutionalists.
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May '10
Re: True Conservatives? True Constitutionalists?
There are over 200 years of precedence and jurisprudence supporting the federal and executive roles in national security. Latter-day isolationists of convenience under the convenient guise of libertarianism do not strike me as particularly compelling in their explanations.
The one area where even the Founders acted while the ratification ink was still dry was in The Common Defense. When Congress passed the Bill to build the six frigates, it didn't add on a directed declaration; it merely acquiesced in Jefferson's actions.
Seems to me that John Yoo is on better ground here than is Conor.
Aug '10
Re: True Conservatives? True Constitutionalists?
James Poulos:
This strikes me as an overdrawn portrait of the Tea Party, which is more libertarian and more of a hodgepodge than Conor wants to allow.
Naturally.
Aug '10
Re: True Conservatives? True Constitutionalists?
So James, while I don't get your question, this is my problem with Friedersdorf piece.
In his first accusation I assume he is talking about the Al-Awlaki killing - yeah, in wartime we don't ask targets if they are American citizens and Al-Awlaki was a legitimate target killed on the battlefield.
Teapartiers desire president to launch war without authorization? You mean like Obama did in Libya? Huh?
Waterboarding is a technique we use to train our forces to resist interrogation and I am firmly in the camp that while it is uncomfortable, it isn't torture. I would go on, but the 200 limit approaches.
Your point is?
Apr '11
Re: True Conservatives? True Constitutionalists?
James Poulos:
The weightier point to be made is that both types of constitutionalists in fact find their true political foundations outside the Document itself. Both understand the Constitution to be, at bottom, a means -- to the end of Liberty for one, to the end of the Union for the other. Once we admit this, constitutionalism can actually be understood as it needs to be -- as an attitude of prudential cooperation between the party of Union and the party of Liberty. We can, should, and must argue over how that cooperation is best to be forged. But we should recognize from the start that the best way to have that argument is to step back from the temptation to declare that our team, and not the other, belongs to the true constitutionalists. ·
I agree with you until the last sentence.
I don't have room to address this in my remaining 56 words. I'll write a response in the member feed. Thanks for the contribution.
Re: True Conservatives? True Constitutionalists?
Thanks Jeff. Link to it here!
Re: True Conservatives? True Constitutionalists?
Duane Oyen: There are over 200 years of precedence and jurisprudence supporting the federal and executive roles in national security. Latter-day isolationists of convenience under the convenient guise of libertarianism do not strike me as particularly compelling in their explanations.
The one area where even the Founders acted while the ratification ink was still dry was in The Common Defense. When Congress passed the Bill to build the six frigates, it didn't add on a directed declaration; it merely acquiesced in Jefferson's actions.
Seems to me that John Yoo is on better ground here than is Conor. · Nov 28 at 2:14pm
Amen. The Founders meant the federal government to be exceedingly vigorous in its proper sphere. The executive may be strictly constrained in peacetime. In wartime, however, as the Founders understood, this is impossible. Nor can one really pit Jefferson and Madison against Hamilton on this. If anything, in foreign affairs, as President, Thomas Jefferson extended executive power further than Alexander Hamilton would have thought proper.
Re: True Conservatives? True Constitutionalists?
Paul A. Rahe
The Founders meant the federal government to be exceedingly vigorous in its proper sphere. The executive may be strictly constrained in peacetime. In wartime, however, as the Founders understood, this is impossible.
There is of course voting out an executive who prosecutes a war in one manner or another. And the concern voiced intelligently on the libertarian right is that it not become impossible for us to strictly constrain in wartime the definition of war. But as I hinted, in both cases this takes us outside debates about constitutionalism and into the sphere of political argument over prudential statecraft.
Re: True Conservatives? True Constitutionalists?
This argument always goes here:
Sounds familiar, Duane. It's basically what liberals say in the course of arguing for a living, breathing Constitution that permits everything under the sun via the Commerce Clause. Anyone who objects is told, "but look at all the decades of precedence and jurisprudence that support the federal role that I want to see expand." At least those liberals don't claim to be "originalists" or "constitutional conservatives." They acknowledge their departure from the Founding document, insisting it was meant to evolve.
Re: True Conservatives? True Constitutionalists?
Paul A. Rahe
Amen. The Founders meant the federal government to be exceedingly vigorous in its proper sphere. The executive may be strictly constrained in peacetime. In wartime, however, as the Founders understood, this is impossible. Nor can one really pit Jefferson and Madison against Hamilton on this. If anything, in foreign affairs, as President, Thomas Jefferson extended executive power further than Alexander Hamilton would have thought proper. · Nov 28 at 5:13pm
The Founders understood war to be something declared by Congress against nation states. The War on Terrorism is effectively a global fight against a vaguely defined enemy -- or is it against a tactic? -- that has no discernible end, or any particular way to measure progress, except that lack of terrorist attacks justify the power given the government, and terrorist attacks necessitate giving the government more power. And I wonder if you can cite anything to prove that the Founders understood the need for an unconstrained executive in wartime.
Re: True Conservatives? True Constitutionalists?
James,
Initial thoughts.
1) If "constitutional conservatives" want to embrace what they take to be a Lincolnian understanding of the executive, that's fine, but they should get a new name, and start invoking him rather than the Founders. They should also remember Lincoln is the man who wrote this:
2) There just are serious disagreements between serious legal theorists as to whether the the Constitution permits the individual mandate. What is the existence of serious disagreements supposed to imply?
Re: True Conservatives? True Constitutionalists?
James Poulos: Even an ardent constitutionalist can believe it is hard to cherish our founding Document amid the rubble of a Union destroyed, whether by secession or by nuclear bombs...
At best, the charge should be that the war-powers folks underrate the risk their position poses to constitutionalism. But the retort here is obvious: the risk posed by our current crisis, and the enemies who brought it upon us, is even greater. At which point our dispute leaves the ground of political theory and enters the realm of political practice.
This assumes a lot.
Let's revisit some of my actual complaints. The drug war. The legal corners cut to kill AlAwlaki. The Libya invasion. Warrant-less wiretapping. Asset forfeiture. Am I to believe that these powers are plausibly being seized to save us from nuclear oblivion? That the destruction of our union might result if the president is forced to go to the trouble of getting warrants and declarations of war? Is the underwear bomber supposed to be comparable to the Confederacy? Even if your argument holds in theory, it can hardly justify the excesses I am complaining about.
Jan '11
Re: True Conservatives? True Constitutionalists?
Instugator:
[I]n wartime we don't ask targets if they are American citizens and Al-Awlaki was a legitimate target killed on the battlefield.
That's simply not an accurate description of what happened. This wasn't a matter of killing someone on the battlefield, amid the fog of war, who just happened to be an American citizen; the president ordered the specific targeting this particular American citizen. One may or may not agree with that policy, but it hardly fits the description you offered.
Edited on November 29, 2011 at 4:05pmJan '11
Re: True Conservatives? True Constitutionalists?
Paul A. Rahe
Nor can one really pit Jefferson and Madison against Hamilton on this. If anything, in foreign affairs, as President, Thomas Jefferson extended executive power further than Alexander Hamilton would have thought proper.
While I can't exactly disagree, I think this is missing part of the story.
Despite the very real differences between Federalists and Democratic-Republicans (and stipulating that some individuals were more consistent than others) both parties favored strong, flexible executives when their faction was in power, but suddenly became skeptics when voted out of office. Think of Madison's constitutionally-based opposition to the 1st Bank of the United States during Washington's term, and his support for its successor during his own administration.
We tend to exaggerate the extent to which the Democratic-Republicans came to accept Hamiltonianism on its merits, rather than simply because it suited changing partisan politics. Had the Federalists returned to power in 1808 -- and had Hamilton not gotten himself shot -- the true differences between the parties might have been clarified.
Edited on November 29, 2011 at 4:09pmJan '11
Re: True Conservatives? True Constitutionalists?
James Poulos:
[The Tea Party departs], he claims, from the Founders' vision of constrained executive power, preferring today's vast and growing national security state. Indeed, their preference for (ahem) "all the war powers that John Yoo would give" a President suggests that they've forgotten the "historical fact that war profoundly empowers and expands the state more than anything else" -- its written constitution be damned.
This strikes me as an overdrawn portrait of the Tea Party, which is more libertarian and more of a hodgepodge than Conor wants to allow.
Though I agree with Conor's general criticisms, Poulous is correct that it's a little overbroad. Moreover -- as someone active in the Greater Boston Tea Party -- I can attest that there's a purposeful effort to focus on fiscal issues to the exclusion of all others. That includes the kind of national defense issues Conor discusses, but also social issues like abortion and gay marriage.
However, Conor hit on something that Levin neglected: constitutional conservativism should begin and end with the knowledge that government isn't automatically empowered to do everything, including those things near and dear to the hearts of constitutionalism conservatives.
Aug '10
Re: True Conservatives? True Constitutionalists?
Tom Meyer
Instugator:
[I]n wartime we don't ask targets if they are American citizens and Al-Awlaki was a legitimate target killed on the battlefield.
That's simply not an accurate description of what happened. This wasn't a matter of killing someone on the battlefield, amid the fog of war, who just happened to be an American citizen; the president ordered the specific targeting this particular American citizen. One may or may not agree with that policy. · Nov 29 at 6:39am
Go re-read the process. The evaluation of Al-Awlaki was whether or not he was a legitimate target, not that it directed he be killed. There also was a guy (Samir Kahn) killed alongside of him who was also an American and could be construed 'collateral damage'.
Also, reliance on 'fog of war' to avoid killing people you think we ought not kill is a pretty poor business practice.
Aug '10
Re: True Conservatives? True Constitutionalists?
Gee Connor, I always thought the most massive expansion of state power occurred in the New Deal and subsequently, The Great Society.
I find it hard to see such sweeping, enduring changes within the wars that the US has waged - certainly the wars we have waged have not cost so much.
Jan '11
Re: True Conservatives? True Constitutionalists?
Instugator
Go re-read the process. The evaluation of Al-Awlaki was whether or not he was a legitimate target, not that it directed he be killed.
Unless I'm missing something, that strikes me as a distinction without a difference. The purpose of deciding he was a legitimate target was to get the go-ahead to do a predator strike aimed at him....which is what we, in fact, did. I intentionally left Kahn out of the equation because he wasn't specifically targeted.
Instugator
Also, reliance on 'fog of war' to avoid killing people you think we ought not kill is a pretty poor business practice.
Huh? My point was that your earlier comment that "in wartime we don't ask targets if they are American citizens" makes no sense in this context.
Al-Awlaki wasn't an American defector who was killed on the battlefield during combat when legal niceties have no place; his death was the direct result of a specific decision by the president to target him. Defend that if you want, but don't present it as something it isn't.
Aug '10
Re: True Conservatives? True Constitutionalists?
Tom Meyer
Instugator
Go re-read the process. The evaluation of Al-Awlaki was whether or not he was a legitimate target, not that it directed he be killed.
Unless I'm missing something, that strikes me as a distinction without a difference. The purpose of deciding he was a legitimate target was to get the go-ahead to do a predator strike aimed at him....which is what we, in fact, did.
The targeting of enemy leadership is a proper function in wartime. Al-Awlaki was a high-payoff target. The legal review was to ascertain his status as a legitimate target in spite of his American citizenship. He wasn't targeted because Obama disliked him. There is a difference.
Warfare isn't lawfare.
Edited on November 29, 2011 at 5:58pmAug '10
Re: True Conservatives? True Constitutionalists?
Tom Meyer
That's simply not an accurate description of what happened. This wasn't a matter of killing someone on the battlefield, amid the fog of war, who just happened to be an American citizen; the president ordered the specific targeting this particular American citizen. One may or may not agree with that policy, but it hardly fits the description you offered. · Nov 29 at 6:39am
Edited on Nov 29 at 07:05 am
Al-Awlaki wasn't placed on the target list by Pres. Obama. He was nominated by the person in charge of prosecuting targets in that AOR. His inclusion on the target list was subjected to a legal review of his combatant status.
The President did not order he be killed, the President allowed his inclusion on a list of high-payoff targets to be killed when located.
Re: True Conservatives? True Constitutionalists?
Conor Friedersdorf:
2) There just are serious disagreements between serious legal theorists as to whether the the Constitution permits the individual mandate. What is the existence of serious disagreements supposed to imply? · Nov 28 at 10:04pm
Thanks, Conor. The existence of serious disagreements here implies what is the case, that they're rooted, as I suggested, in a clash of principles that begins outside the bounds of the constitution itself. The individual mandate is a nice example. Some Federalist Society types have concluded it's unconstitutional. Others haven't. I have no doubt that the individual mandate is aggressively contrary to liberty, but, alas, that's not really the foremost concern of the constitution. SCOTUS justices occasionally admit that silly or even offensive laws can be constitutional...