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.

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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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