The Tea Party: 'Constitutional Conservatives' in Name Only

The right-leaning populist movement embraces the Founders' vision -- except when it comes to national security, civil liberties and foreign affairs

In Yuval Levin's smart essay, "What Is Constitutional Conservatism," one paragraph stands out as an eloquent statement of what the political philosophy has to offer. "As the framers saw it, both populist and technocratic politics were expressions of a modern hubris about the capacity of human beings -- be it of the experts or of the people as a whole -- to make just the right governing decisions," he writes. "The Constitution is built upon a profound skepticism about the ability of any political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus. Experts should not govern, nor should the people do so directly, but rather the people's representatives should govern in a system filled with mediating institutions and opposing interests -- a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously."

That is a message for this moment.

The populist temptation is alive on the right, channeled through the Tea Party, and on the left, courtesy of Occupy Wall Street. Either seems capable of "the passing of bad laws through haste, inadvertence, or design," -- that's Alexander Hamilton from Federalist 73, as quoted by Levin -- and the populists themselves are responding largely to the financial crisis, which among many other things is a reminder of how catastrophically America's technocrats can fail us.

As justly enthusiastic as conservatives are about the essay -- it is the cover article in the November 28, 2011 issue of National Review, and has been cited widely since it appeared on the Web -- its author makes a significant mistake. In his telling, the Tea Party is a champion of constitutional governance, "intensely focused on recovering the U.S. Constitution, and especially its limits on government power." In fact, that is a focus of its rhetoric, which is misleading. To give the Tea Party its due, the movement has drawn attention to America's alarming deficits, and it genuinely want to shrink specific parts of the federal budget, for better and worse. I personally agree with Tea Partiers about the desirability of entitlement reform, the questionable wisdom of the Affordable Care Act, the fiscal threat represented by public employee pensions, and the need to rein in unaccountable agencies in the federal bureaucracy.

So why don't I embrace the Tea Party? Largely due to the tendency of almost the whole GOP coalition, including most Tea Partiers and all but one of the national candidates they champion, to support a more powerful, far-reaching, extra-constitutional state, so long as it is ostensibly being used to fight the War on Terrorism or the War on Drugs. It seems fair to say that Sarah Palin, Michele Bachmann, Herman Cain, Rick Perry, and Newt Gingrich are all politicians with substantial support in the Tea Party, especially if you count folks who like their worldviews but don't think they're ready to be the GOP presidential nominee. Now imagine that American policy were determined by polling those figures on various subjects of controversy.

Call it the Tea Party Congress.

The Tea Party Congress would approve the president's right to kill Americans accused of terrorism without due process; his prerogative to launch wars without Congressional approval, even when there is no imminent threat to the American homeland; waterboarding; warrantless spying on American citizens, without even the requirement that they be told they were under surveillance; constant use of the state secrets privilege; aggressive use of asset forfeiture by federal, state and local police; racial profiling of Muslim Americans; and various local obstacles to Muslim Americans building mosques, whether at Ground Zero or in Tennessee or elsewhere.

It is true that President Obama embraces some of these powers, to his eternal discredit; and that none are the central focus of the Tea Party; but that does nothing to change the fact that government by the Tea Party, or the Republican establishment, or a coalition made up of both groups, would embrace the War on Terrorism's most alarming excesses and continue our decade long trend away from being governed in strict accordance with the United States Constitution.

That isn't to say that no one is fighting back. On the right, Ron and Rand Paul, the latter a Tea Party candidate, come to mind. But neither are champions of the average Tea Party participant.

Says Levin, in his conclusion, "In this time of grave challenges, conservatives must work to protect the fundamentally constitutionalist character of the Tea Party, and of the conservative movement -- avoiding the excesses of both populism and technocracy as we work to undo the damage done by both, and to recover the American project." That is sound advice for conservatives, and liberals would do well to avoid the excesses of populism and technocracy too. But the American project wasn't in fact launched in reaction to populism or technocracy, however wisely and deliberately it guarded against them. What the Founders feared more than anything was that government would be captured by a tyrant with the mindset of a King George.

As a minority within the Tea Party and others sympathetic to it understand, the War on Terrorism is both a fight to preserve our safety and a threat to liberty and limited government, especially when partisans of one president or another undermine our system of checks and balances in its name. You'd think, given the Tea Party's priorities, that liberty is most often lost after a nation passes an individual mandate for health care or increases tax rates on the rich. But it is historical fact that war profoundly empowers and expands the state more than anything else.

That is true even of just wars. The Civil War, World War II and the Cold War were all rife with excesses. Guardians of liberty and the constitution should be most attune to war's corrosive effect.

It is conducive to the most extreme abuses of civil liberties.

Elsewhere in the world, many a tyrant has some to power by taking advantage of wartime powers willingly conceded. 

Better to be governed by a "constitutional conservative" than a populist or technocrat, or so I'd argue. But more dangerous than a president sympathetic to populism or technocracy is one who would seize all the war powers that John Yoo would give him. Aside from Ron Paul, every Tea Party affiliated Election 2012 candidate for president seems to think such radical powers are the president's due. Aside from the power to torture, President Obama himself substantially agrees.

It would be helpful if those at National Review, the Heritage Foundation, and elsewhere would stand up to this bipartisan move toward a kingly executive who reigns over an endless War on Terrorism, unchecked in his powers, as if that is what's needed to keep America safe. Instead, establishment conservatives and Tea Partiers alike are more likely than not to defend Dick Cheney, David Addington, the Patriot Act, the indefinite detention of American citizens, stripping the judiciary of its power, presidential assassinations of American citizens, and all the rest.

Many of these people claim to be constitutional conservatives, but are ardent about that disposition only in domestic affairs. If national security, police powers, or foreign affairs are implicated, they are constitutional conservatives in name only, blind to executive branch excesses corrosive to individual liberty and often even to the constitution itself. Why would a liberty-minded voter, or one dedicated to the Constitution, be satisfied with a movement of that sort?

The Tea Party has sent a few good people to Congress, but should any of the presidential candidates it has elevated triumph, constitutional conservatives won't have any good choice in general election 2012. And that failure ought to merit space in every essay on the disposition. Returning to Levin's wise words, ask yourself this. Is the Tea Party's approach to the War on Terrorism built upon "a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus"? Are Tea Partiers urging that national security policy be made via "a system filled with mediating institutions and opposing interests -- a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously"? Quite the contrary. Its approach isn't always unconstitutional.

It is, however, consistently unconservative.