Where Liberals and Conservatives are Wrong About the Constitution
Monday is Constitution Day, and on this day alone we need to let the founding blueprint of our American government have its say. And what enlightened remarks might it deliver if it could speak? To both liberals and conservatives: You don’t own me.
Conservatives like to say liberal judges and scholars prefers Constitutional theory that rationalizes politically liberal results—treating it as a “living, breathing” document, subject to changing interpretations over time. These interpretations have permitted the federal government to enact social welfare programs and expand our understanding of fundamental rights. Political liberals, on the other hand, say conservatives adopt their own theory of constitutional interpretation—originalism—to rationalize conservative results. Indeed originalism, the idea that we should interpret the words of the Constitution with their original public meaning, affords in practice more protections for economic liberty, property rights, and for gun rights and fewer protections for the rights preferred by modern liberals (abortion, gay marriage).
Conservative originalists insist that their theory is neutral; it’s simply what the law is. Liberals contend the Constitution was written in such open-ended language so as to invite interpretation as social norms and values change over time. It turns out that neither the liberal nor the conservative is quite right about originalism or its alternative.
To say that originalism is merely what the law “is,” is to misunderstand the connection between originalism and conservatism. But neither is originalism a rationalization for conservatism. The connection between the two has been misunderstood because few understand what conservatism is. Conservatives generally seek to “conserve” something, but what?
The American conservative, properly understood, seeks to conserve the traditionally liberal principles of our Founding: the principles of self-government, ordered liberty, and equality under law. Once this is understood, originalism is most clearly connected to conservatism. Conservatism seeks to conserve the liberal principles of our Founding, and originalism seeks to preserve the original legal content of the Constitution that was framed to give life to those principles.
So is originalism only useful for political conservatives? Not at all. The Constitution does not require that we have a politically conservative or libertarian worldview, just as it does not require a politically liberal worldview. The great genius of the Constitution was that it left much to the democratic process, precisely because the Founders knew that conditions would change—and that we ourselves would evolve and progress over time. That is why the liberal claims about constitutional interpretation are not quite right, either. The Framers recognized that we would evolve and progress over time, which is why they left so much to the democratic process. Our Constitution is not living and breathing, but our democracy is.
So is our Founding—and its product, the Constitution—worth conserving? Particularly in view of the debate over public monuments, which has led some to raise questions even about our Founders, this question has become more pressing. It has become fashionable to criticize the Founders because they were white, male landowners, and mostly slaveowners.
Of course, all those things are true. But that is not why we celebrate them. They did not invent slavery, nor the exclusion of women, or the poor. Those had been universal. Our Founders’ achievement was quite different. Their achievement was writing for the first time in a foundational national document that all men are created equal, at which time half of the states abolished slavery (or set a timetable for its abolition) between 1776 and 1789. They framed the first free government of the modern world, committed to the principle of equality under law. The Constitution they wrote abolished property requirements for holding public office, and abolished titles of nobility and hereditary privileges. And for its time, the body of citizens that deliberated and reflected on that frame of government was broader than anywhere else in the world, and broader than at any time in history.
These kinds of accomplishments had been mostly unheard of until our Founding. And that is why we celebrate the Founders. We have progressed since their time, of course, but we have done so largely because we stand on the shoulders of giants. We stand on the shoulders of their achievement. Perhaps that’s something worth conserving.
Ilan Wurman is the author of “A Debt Against the Living: An Introduction to Originalism.” Follow him on twitter @ilanwurman.