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April 17, 2014 1:51 PM The Constitutional Excuse For Subverting Democracy

By Ed Kilgore

To anyone puzzled or confused about the preferred Tea Party self-identification buzzword “constitutional conservative,” George Will has done a fine job in his latest column spelling it all out, by way of touting a new book by Timothy Sandefur of the Pacific Legal Foundation. Progressives believe the Constitution provides a process that facilitates democracy. Conservatives understand that it’s a safeguard against the limitation of “natural” rights by democratic majorities.

This sounds reasonable if you accept the rather cartoonish idea that progressives do not acknowledge any limitations on popular majorities, or that the two sides mean roughly the same thing when they talk about individual rights. Here Will is not as forthcoming as he might have been, but his extensive discussion of the alleged incorporation of the Declaration of Independence into the Constitution—an invariable touchstone for Constitutional Conservatives—alludes to the common conservative belief that via the Declaration certain divinely granted or naturally endowed “rights”—particularly the untrammeled enjoyment of private property and the “right to life” of zygotes—trump the founding document itself.

You can think of it as a vastly more sweeping conservative version of the “penumbra” theory whereby Justice Douglas identified an implicit “right to privacy” in the Bill of Rights. And indeed, critics of Douglas’ opinion in Griswold v. Connecticut (itself a precedent for Roe v. Wade) have sometimes compared it to the “substantive due process” concept of the Lochner v. New York decision under which progressive social and economic legislation was routinely struck down as violating immutable private property rights until Lochner was overturned in 1937. It’s no accident that Will’s hero Sandefur is a latter-day defender of Lochner.

I’m no constitutional lawyer, and so won’t go into the argument over Lochner (or for that matter, Griswold) in detail, but it’s worth noting the practical effect this idea of supra-constitutional limitations on democratic majorities has on conservative political argumentation. When they aren’t describing America as a “center-right nation” or predicting perpetual Republican electoral landslides, or indulging in a “populist” appeals whereby “real Americans” are told they are being illegitimately outgunned by voter fraud or voter bribery, conservatives are prone to retreat into this impregnable fortress of constitutionalist theory which prohibits as a matter of fundamental law most progressive legislation. This redoubt makes it psychologically very easy to rationalize restrictions on voting, or mendacious campaign ads, or unlimited campaign spending by wealthy individuals, or abuse of the filibuster or other anti-democratic mechanisms. After all, conservatives are simply defending themselves against laws and policies that really ought to be struck down by the courts as unconstitutional—you know, like the Lochner-era courts routinely did with progressive legislation up through the early New Deal.

It’s at bottom just another heads-we-win-tails-you-lose proposition whereby American conservatives tend to support the constitutional arguments that in any given circumstance happen to support their policy goals.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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