Patrick Garry
Constitutionalism--not government--as the foundation of civil society
By Patrick Garry
September 15, 2012

Our electronic media culture supports an ever-shortening attention span. It focuses all attention on the immediate, the here and now. The past seems to disappear as quickly as a plate of cookies in the employee lounge.

But no matter how much sensationalism is crammed into 24-hour cable stations, and no matter how fast the Tweets are sent, the basic rules of history still prevail. And one such rule is that some fundamental issues and conflicts take a very long time to play out.

The enduring need for "constitutionalism"

Take the New Deal legacy, for instance. If there is one basic issue defining the 2012 election season, it is the conflict over the New Deal legacy. Indeed, it is a conflict that has been building since 1980. And at the heart of this conflict — this conflict over the scope of government involvement in the economy and society — lies the basic issue of constitutionalism and the limits the U.S. Constitution places on government power.

Constitutionalism isn't an issue that was discovered by the Tea Party. It is not an issue that first arose with the Watergate crisis, or Roe v. Wade, or President Truman's seizure of the steel industry. It is an issue that has been debated since Marbury v. Madison and the formation of the First National Bank. But in modern times, constitutionalism reached a particular intensity during the New Deal era. Constitutionalism was the warning track that surrounded the political playing field of the New Deal agenda. It was a reminder that the Constitution set limits on government power, regardless of the perceived social and economic need for that power.

Ever since the New Deal, constitutionalism has become a political issue, with conservatives proclaiming obedience to the text and purpose of the Constitution, and liberals advocating a more fluid and flexible "living constitution." But the Constitution is primarily a process-oriented document, setting out the rules and mechanics for our constitutional democracy. It is not like a piece of legislation that tries to articulate and implement substantive goals. As a process-oriented document, the Constitution sometimes works in favor of conservative goals, but also sometimes works against them and in favor of liberal ones.

The Constitution unifies

Eighty years ago this November, President Franklin Roosevelt was elected and the New Deal was launched. And accompanying the New Deal was the liberal argument that, at least with respect to social and economic legislation, constitutionalism should be downgraded.

One of the effects of the New Deal legacy is the separation of government power from its constitutional foundations. This separation, however, ends up threatening the very legitimacy of government power. Because majority will is fluid and impermanent, democratic government is inherently fluid and impermanent. Public desires change continually with changing circumstances. Consequently, unless government is tied to a lasting and enduring foundation, its legitimacy can be questioned.

The decline of constitutionalism has contributed to the increase in political divisiveness. Indeed, our current political terrain is starkly divided into a red versus blue geography. Yet even though the left continually bemoans this state of political division, it simultaneously works to erode the one foundation that can serve as a unifying point — the Constitution.

Granted, constitutional interpretation is not always a simple or clear matter. This is because the Constitution is not always clear about the modern conflicts and disputes that can arise under it. However, the position of constitutionalists is that the text and purpose of the Constitution should be followed whenever possible, regardless of the political pressures to the contrary.

Conservatives aren't constitutionalists just because they think the Constitution leads to conservative results. Nor are they constitutionalists because that approach is the more simple and intellectually easy endeavor. Constitutionalism fulfills a number of conservative values. Following and respecting the Constitution is a way of following and respecting the past. Following and respecting the Constitution is a way of following and respecting enduring values, and of resisting the false lure of relativism.

Respecting limits

Being a constitutionalist means respecting and adhering to the limits of politics. This is one of the most basic conservative messages: that there are limits to politics and activities government should not pursue; that unlimited desires lead to unlimited government, which in turn leads to unlimited threats to liberty.

When the Supreme Court initially resisted their agenda, the New Dealers argued that there is a cost to following the past, particularly when it appears that the present is experiencing problems unforeseen by the constitutional generation. But what the New Dealers did not recognize was that there was also a strong benefit to following the past, and that in fact there was a high cost to rejecting the past.

The New Deal's rejection of the constitutionalism of the past has led us to the high- stakes problems of the present. The New Deal rejection of constitutionalism has led us to an entitlement culture that threatens the very sustainability of the public sector. It will be no easy task to resolve the government deficit problem and the serious threat posed by continually escalating entitlement payments. But these problems were set in motion when the Constitution's wisdom and commands were ignored eighty years ago. Constitutionalism is nothing new; it is not some new conservative or reactionary theory. And if it had been followed during very difficult times in the past, we would not have the types of political problems we now have.

© Patrick Garry


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Patrick Garry

Patrick Garry is a professor of law at the University of South Dakota, and Director of the Hagemann Center for Legal & Public Policy Research... (more)


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