Of Kristol’s evocation of the “original Constitution”—and, by implication, modern liberalism’s trashing of it—Chait writes, “The ‘original Constitution’? The one that permitted slavery? Does Kristol want to do away away with the 11th through 27th amendments to the Constitution? I’m sure he does not. But if Kristol obviously does not mean what he actually wrote, what does he mean?”
We all know the drill by now: the “original,” pre-Progressive era Constitution was not designed for the expansive power to regulate interstate commerce that Congress now enjoys; for “transfer payments” or the redistribution of wealth; or, generally speaking, for any interference between the consensual acts of individuals in the marketplace.
I return to it from time to time, because it’s such a perfect distillation of the kind of jurisprudence that infuses the tea party and liberty movements, and Kristol’s musing furnishes me another excuse: Ken Cuccinelli’s legal brief against Obamacare’s individual mandate in the Texas Review of Law & Politics.
In it, Cuccinelli answers Oliver Wendell Holmes’s famous Lochner dissent that “a constitution is not intended to embody a particular economic theory … The Fourteenth Amendment does not enact Mr. Herbert Spencer’s social statics.” (Hence Chait, lazily switching between upper- and lower-case “c”: “The Constitution is not a vague set of ideals; it’s a clear set of rules. That’s the whole point of a Constitution.”)
Cuccinelli says Holmes was arguing with a straw man. Of course it’s nonsense to claim the Constitution or the 14th Amendment embody Social Statics. But could Holmes plausibly deny that it embodies John Locke? “This would have been regarded as puzzling at best and at worst demonstrably false.” So there, fine: Forget Herbert Spencer. We can appeal to Locke (and Blackstone, and Hooker) and basically arrive at the same libertarian defense of economic rights. Sic utere tuo ut alienum non laedas: so use your own as not to injure another’s property.
For now, let’s table this aspect of the debate. Readers know I’d rather live under Chait’s Constitution than Cuccinelli’s. My point here is this: Bill Kristol is a terrible, horrible, no good, very bad ambassador for the Tea Party Constitution!
A constitution whose notion of executive power is expansive enough to satisfy the likes of Bill Kristol and John Yoo should have no trouble accommodating social insurance programs or public assistance for the needy.
I’m sorry: you don’t get to have your kickass policy suite of torture, democratism, intergalactic swamp-draining, World War XXIV, and “We’re all Everybody-ians now,” and also complain about food stamps or federal insurance exchanges.
Tea Party and liberty movement conservatives have every right to argue for an originalist interpretation of individual economic rights.
Bill Kristol does not.