The current issue of The Claremont Review contains a fine essay by one of my old commanders at Postmodern Conservative, Jim Ceaser. In it, Ceaser argues for a revival of the nearly forgotten tradition of political constitutionalism as a supplement, if not an alternative, to the legalistic version with which we have all become familiar. According to legalistic constitutionalism, the Constitution is a set of rules and criteria that allow judges to decide cases. According to political constitutionalism, the Constitution sets out general goals, procedures, and norms. But it is not a political equivalent to stereo instructions that lead to a predetermined outcome through a sequence of correct steps.
Ceaser’s distinction is important because of the way legalistic constitutionalism has captured the imagination of the Right. To mention only one example, many conservatives want the Supreme Court to strike down Obamacare on the grounds that the individual mandate is not identified in the statute as a tax–even though they admit that Congress would have the Constitutional authority to impose a tax to fund the same programs. Instead, Ceaser suggests, opponents of Obamacare should argue that they are inconsistent with the spirit of the Constitution and the balance that it attempts to strike between state, national, private concerns. That’s not the kind of argument that will win in court. But it might win elections.
Equally important is Ceaser’s implicit criticism of the idea, popularized by Glenn Beck, that the original understanding of Constitution must be reclaimed from Progressive interpretations. Actually, many Progressives were openly hostile to the Constitution, which they saw as unsuitable to modern government. In order to justify their hostility, they exaggerated the rigidity of the Constitutional design. Now, in opposition to the Progressive legacy, some conservatives have come to believe that that exaggeration is the only appropriate understanding of the Constitution. In doing so, they give away the game to those who argue that we must ignore or dramatically recast the Constitution if we are to meet the challenges of the present.
There’s room within political constitutionalism for different responses to these challenges. But they are solutions that citizens and politicians must defend by articulating their own understandings of the Constitution and seeking support in the electoral and legislative processes rather than appealing on judges to make a final decision on their behalf. In this way, political constitutionalism may help us move beyond the interminable and unedifying debate between judicial activism and restraint. After all, it’s our Constitution, not the courts’.