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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Re: True Conservatives? True Constitutionalists?
Conor Friedersdorf: 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:
Would you be satisfied if they did? As our smarter Lincoln critics would point out, Lincoln was hardly a man who believed himself constitutionally disentitled to summon a volunteer army for the purpose of invading and conquering the Deep South and returning its states to the Union. (In fact, it was this move that tipped the Upper South into secession.) And surely Lincoln's smarter partisans would emphasize that Lincoln's treatment of the Constitution as a means to the perpetuation of the Union echoes The Federalist (see #2 etc). Like it or not, Lincoln cannot be pried fully away from the Founders...
Re: True Conservatives? True Constitutionalists?
Arguably ten dirty underwear bombers would do far more harm to Americans than the departure of six small states from the Union. But as you know, I oppose this drug war. We didn't really invade Libya, but we had a clear interest in preventing a refugee wave/rebel government in exile sweep into Italy. Congress freely let the executive relieve them of having to declare war whenever guns would go off. Not ideal, but this has been an issue since the Founding era (Barbary Pirates!). My point remains that because my argument holds in theory we ought to take our complaints into political practice. On the 4th Amendment, we're back to competing constitutional interpretations...
Aug '10
Re: True Conservatives? True Constitutionalists?
Seriously? I think you are overvaluing the harm of a 'dirty underwear bomb' by substantial orders of magnitude.
James Poulos
We didn't really invade Libya, but we had a clear interest in preventing a refugee wave/rebel government in exile sweep into Italy.
We clearly did invade Libyan airspace. I can see why Italy has a clear interest in preventing a refugee crisis, but I don't see how that is a clear US interest.
Not true either, The War Powers Act does not require Congress to declare war (an authorization for the use of military force is allowed), but does require the executive to consult with Congress if practicable prior to committing US forces to combat.
All that has happened is that Congress has permitted the gutting of legislation that it passed over a presidential veto in 1973.
Oh and it also shows the 'Anti-War movement' is a sham.
Jan '11
Re: True Conservatives? True Constitutionalists?
Instugator
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.
Again, a distinction without a difference.
Here's how the administration described it:
So the administration may kill anyone, anywhere so long as we first designate them a terrorist, a process that -- as I understand it -- requires no review outside of the administration. I agree with the ends, but not this particular set of means.
May '10
Re: True Conservatives? True Constitutionalists?
Conor Friedersdorf: This argument always goes here:
Sounds familiar, Duane. It's basically what liberals say...... 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. · Nov 28 at 9:24pm
"Evolve"? Er, isn't there some difference between common defense, specifically called for by the Constitution, and "penumbras" of whiffs of substantive due process or a rubber-band Wickard commerce clause, in the fact that the people acting in 1799 were, you know, the actual "originalists"?
It seems to me, Conor, that you are the one desperately trying to stretch a specious point here to fit your own preference.
Aug '10
Re: True Conservatives? True Constitutionalists?
Tom Meyer
Here's how the administration described it:
So the administration may kill anyone, anywhere so long as we first designate them a terrorist, a process that -- as I understand it -- requires no review outside of the administration. I agree with the ends, but not this particular set of means. · Nov 29 at 10:41am
It doesn't say "designate them a terrorist", it says "high-level leaders of enemy forces, regardless of their nationality".
Which conforms entirely with my earlier statements, and would be true regardless of administration.
Lord Haw-Haw (American William Joyce) was a legitimate military target in WW2. The entire Confederate leadership in the Civil War were legitimate military targets.
Again, Warfare isn't lawfare.
Re: True Conservatives? True Constitutionalists?
Appreciate the responses from everyone, and James, you're persuasive as always, but I find myself arriving here:
-- Perhaps I am right, and the "constitutional conservatives" are in fact at peace with unconstitutional measures.
-- Or perhaps James is right, and every constitutional question from executive war powers to the individual mandate is sufficiently contested that it's impossible to say, "by embracing x, you lose the right to claim the constitution as the main guiding light of your political philosophy."
It seems like either way, constitutional conservatives have a big problem. Because their whole movement is premised on the fact that there is one objectively correct take on the constitution, and they are its champions.Rights?
Aug '10
Re: True Conservatives? True Constitutionalists?
Ah the old hypocricy argument, I knew it was coming to this.
No Connor, I actually believe that unless the Constitution affirmatively gives powers to the Federal Government, the Federal Govt isn't entitled to exercise them (the whole 10th Amendment thingy).
War power - given affirmitively to the Feds. Congress can declare, President is Commander in Chief (I would assume that target selection is part of that whole CIC thingy - as Congressional declarations of war have never said 'bomb x building' but rather listed countries or organizations we are at war with).
Individual Mandate - not mentioned anywhere especially since the commerce clause talks about "Foreign Nations", "Several States", and "Indian Tribes". As I am not any of those, please tell me where congress can tell me what insurance to buy.
Jan '11
Re: True Conservatives? True Constitutionalists?
Instugator
It doesn't say "designate them a terrorist", it says "high-level leaders of enemy forces, regardless of their nationality".
Which conforms entirely with my earlier statements, and would be true regardless of administration.
Lord Haw-Haw (American William Joyce) was a legitimate military target in WW2. The entire Confederate leadership in the Civil War were legitimate military targets.
Again, Warfare isn't lawfare. · Nov 29 at 11:17am
These examples are fundamentally different than the GWOT. In both WWII and the Civil War, the enemy, theater, and possible resolution (the surrender of Nazi Germany or the Confederacy) were all clearly defined. None of those conditions are in effect now, and it follows that we should modify our behavior. Not for al-Qaeda's benefit, but to ensure that we don't lay the groundwork for abuses against innocent American citizens in the future.
And as for the "warfare isn't lawfare" canard, there's a significant difference between asking for some level of due process for the targeted assassination of an American traitor -- e.g., some kind of trial in absentia -- and demanding Marines to recite Miranda warnings before charging up a hill as the phrase usually implies.
Jan '11
Re: True Conservatives? True Constitutionalists?
To clarify, there was practically no chance that the particular policies you cited could lead to future government abuses (it's also worth noting that neither actually happened). I do not believe the same can be said for how al-Alawki was handled; moreover were a number of methods at the administration's disposal that would have better protected civil liberties without compromising operations against a dangerous enemy. But, just as with the Bush administration, Obama's people took the path of least resistance.
May '10
Re: True Conservatives? True Constitutionalists?
Conor Friedersdorf: ...............
It seems like either way, constitutional conservatives have a big problem. Because their whole movement is premised on the fact that there is one objectively correct take on the constitution, and they are its champions.Rights? · Nov 29 at 11:30am
This strikes me as a pretty breathlessly sweeping generalization. So, it is impossible for those who profess originalist fealty, as opposed to the rubber-band version of Stephen Breyer, to have differences of opinion?
1) Set up straw man. 2) Knock it down. 3) Preen. 4) Nonsense.
May '10
Re: True Conservatives? True Constitutionalists?
I disagree- John Yoo explained in other fora the sorts of safeguards used (full Congressional leadership briefings, etc., after the AUMF was in place). That's a middle ground between the lawlessness implied by some arguments and unwise declarations of how long the war will be prosecuted.
These arguments, as presented here between Instugator and Tom, illustrate that it is quite possible for two people of good will to debate and discuss major differences in interpretation and preferred policy without either one of them being bad, evil, obviously dead wrong, etc. These are complex questions, and the answers are not obvious. The debate is more important than achieving closure.
Jan '11
Re: True Conservatives? True Constitutionalists?
Duane Oyen
These arguments, as presented here between Instugator and Tom, illustrate that it is quite possible for two people of good will to debate and discuss major differences in interpretation and preferred policy without either one of them being bad, evil, obviously dead wrong, etc. These are complex questions, and the answers are not obvious. The debate is more important than achieving closure.
Wow. Thanks, Duane.