Preserving Liberty Is More Important Than Making a Fetish of the Constitution

Though important, the document isn't an end in itself—advancing life, liberty, and the pursuit of happiness is the end.
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The U.S. Constitution has done a tremendous amount to advance and safeguard liberty. I favor adhering to the document far more often than the average American. We'd be better off, in my view, if we read the Commerce Clause somewhat more narrowly, let states and localities take charge in more areas, and adhered more strictly to the First, Fourth, Fifth, and Fourteenth amendments, among others. But in National Review, Andrew McCarthy writes about the Constitution in a way that reminds my why I'm not what he is: a kind of fundamentalist for originalism. 

His word for it is conservatism. We'll get to why he shouldn't be allowed to claim that word. Let's start with this passage:

Conservatives who opposed the New Deal were not anti-government. They believed, as they believe today, in constitutionally defined, limited government. And “limited” does not mean “small”—where the Constitution assigns the central government an authority, such as national security, it must be as big and strong as necessary to execute that authority.

Now consider where this reasoning leads him.

The Constitution vests national security in the central government, so McCarthy mostly cheers for, rarely objects to, and never rails against a national-security state that tortured humans, indefinitely detained innocents without charges or trial, began spying on virtually every American, maintains a secret kill list, and classifies everything. This doesn't strike him as a serious threat to individual liberty, because as he sees it, everything is being done constitutionally. The federal government is empowered radically, but in narrow areas! It's all legally proper!

So how does he see social-welfare spending? He argues, correctly, that the Framers didn't envision the form it has taken:

Conservatives, including most of those who were against the New Deal, are not opposed to social welfare for the truly needy. We believe, however, in the constitutional framework, which reserves the promotion of social welfare to the states and the people. Social-welfare policy is not one of what Madison described as “the few and defined” powers delegated to the central government.

It is, instead, a paradigmatic power of the sovereign states because, as Madison elaborated, it “concern[s] the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Constitution thus enables Congress to tax and spend for the general welfare—on public goods, related to Congress’s carefully enumerated Article I powers, that benefit all Americans; not on redistributionist schemes that fleece some citizens for the benefit of others.

He then writes:

Social Security, Medicaid, and Medicare are not, as Krauthammer contends, “great achievements of liberalism.” They are prosperity killers—and inevitably so .... The New Deal and its Great Society successor programs ... are frauds designed to create permanent dependency on government (and fealty to the party of government) .... Once one accepts the premise of federal control over these matters of social welfare, there is no principled case against federal control over any matters of social welfare. Every aspect of life becomes potentially subject to central-government regulation. And so it has, through a metastasizing federal code and bureaucracy that regulates everything from cradles to graves.

He concludes:

... conservatives revere an enriching cultural inheritance that binds generations past, present, and future. It obliges us to honor our traditions and our Constitution, preserve liberty, live within our means, and enhance the prosperity of those who come after us. The welfare state is a betrayal of our constitutional traditions: It is redistributionist gluttony run amok, impoverishing future generations to satisfy our insatiable contemporaries .... This is not constitutional conservatism. It is moderate statism.

You'd think, given the totality of McCarthy's positions, that "constitutional conservatism" is an end in itself. It isn't. Advancing life, liberty, and the pursuit of happiness—that is the end. I, like many conservatives, believe that for the most part those ends are best advanced by working within the constitutional framework. Like many liberals, I also believe that slavery and Jim Crow were such abominations that, if the choices were to strictly construe the constitution or to free the slaves and end Jim Crow, to hell with originalist notions of states rights.

What does that have to do with McCarthy's argument? He is too enamored of the heuristic that what's constitutional is liberty-enhancing and what's unconstitutional is liberty-destroying. It's a good heuristic, but it doesn't always hold.

Arguing with him, I normally point out why I think that his expansive views of executive power betray Madison's vision. Today let's imagine, for the sake of argument, that he has been right all along: that strict adherence to the Constitution really does permit secret kill lists, torture, massive surveillance, and indefinite detention; and it really does prohibit, say, Social Security and Medicare.

Even if that were true, it would not change the fact that the national-security state and its open-ended concentration of unaccountable power poses a far greater threat to liberty than federally bankrolled social-welfare spending (even if you think, as I do, that the spending could be improved upon). That McCarthy is extrapolating from ideology rather than observing fact is illustrated by that line about how "Social Security, Medicaid, and Medicare are prosperity killers—and inevitably so."

Inevitably so? Really? It's possible America would be more prosperous today if Social Security had never passed. It's impossible to disprove the counterfactual. But this we can say with certainty: Social Security did not kill American prosperity. A nation in the middle of a Great Depression actually did pass Social Security ... and went on to win history's biggest war, build the most prosperous country in the history of the world, and provide its future citizens a level of wealth and comfort the Americans of the 1930s and 1940s could scarcely imagine.

America from the New Deal to the present is, on the whole, a success story. We're richer, less unjust, and offer more freedom to our more numerous citizens. The unprecedented War on Terror poses a bigger threat to that than decades old programs. 

A social safety net administered at the federal level may or may not be better than efforts administered by the states. But it is not a fraud by design, it need not be incompatible with a prosperous society, and it need not destroy our liberty. That is so even if it is unconstitutional. And even if the national-security state is technically constitutional, that is no guarantee that it won't infringe on our liberties. 

It is infringing on them. 

The Constitution ought to play a prominent role in our politics. But I'd like to see McCarthy construct an argument for his favored policies without any mention of or recourse to the document. Perhaps that would make it clearer that suspending due process puts a country farther along the road to serfdom than old-age pensions.

I say that his position is not conservative because, while conserving our constitutional design is certainly a coherent part of a conservative approach to governing, McCarthy isn't proposing to conserve something that still exists—rather, he is proposing that we take an approach to social-welfare policy that hasn't been tried since the early 1930s and apply it to the modern economy: a radical change, whatever one thinks of it. The radicalism and unpredictability of what might happen next doesn't necessarily make him wrong. But conservative is a weird word for it. Subject to the vagaries of his interpretations, he is a constitutional fundamentalist. The truth is in the text, so why grapple with the world as it is?

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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