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.