Attempts to stigmatize as “religious zealots” or marginalize as “social extremists” those individuals who resist the Statist’s secular impositions—for they are the coercion behind America’s moral and cultural decline—is to condemn conservatism, the Founders, and the civil society. How can it be said, as it often is, that moral order is second to liberty when one cannot survive without the other? A people cannot remain free and civilized without moral purposes, constraints, and duties. What would be left but relativism manifesting itself in anarchy, followed by tyranny and brute force? For the Conservative, “social issues” relating to life and lifestyle, tested by human experience through the centuries, are not merely personal habits and beliefs but also merit encouragement throughout the society.
In his 1964 speech accepting the Republican nomination for president, Senator Barry Goldwater declared that “those who elevate the state and downgrade the citizen must see ultimately a world in which earthly power can be substituted for Divine Will, and this Nation was founded upon the rejection of that notion and upon the acceptance of God as the author of freedom.”12
While in his later years Goldwater denounced certain proselytes, in this, his most important speech, his call to God’s will and the founding—linking one to the other—could not have been more unequivocal.
4
ON THE CONSTITUTION
LANGUAGE CONSISTS OF WORDS,
words have ordinary and common meanings, and those meanings are communicated to others through the written and spoken word. When parties enter into voluntary arrangements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original making. The Conservative is an originalist, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.
If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.
As James Madison, the “father” of the Constitution, explained:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.1
To say that the Constitution is a “living and breathing document” is to give license to arbitrary and lawless activism. It is a mantra that gained purchase in the early twentieth century and is paraded around by the Statist as if to legitimate that which is illegitimate.2
Thomas Jefferson, in an 1803 letter to Senator Wilson Cary Nicholas of Virginia respecting the Louisiana Purchase, explained:
Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence.3
The Constitution is the bedrock on which a living, evolving nation was built. It is—and must be—a timeless yet durable foundation that individuals can count on in a changing world. It is not perfect but the Framers made it more perfectible through the amendment process.
The Conservative seeks to divine the Constitution’s meaning from its words and their historical context, including a variety of original sources—records of public debates, diaries, correspondence, notes, etc. While reasonable people may, in good faith, draw different conclusions from the application of this interpretative standard, it is the only standard that gives fidelity to the Constitution.
And where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance. This is not a defect but a strength, because the government was intended to be a limited one.4
The Statist is not interested in what the Framers said or intended. He is interested only in what he says and he intends. Consider the judiciary, which has seized for itself the most dominant role in interpreting the Constitution. When asked by a law clerk to explain his judicial philosophy, the late Associate Supreme Court justice Thurgood Marshall responded, “You do what you think is right and let the law catch up.”5 The late Associate justice Arthur Goldberg’s answer was no better. A law clerk recounts Goldberg telling him that his approach was to determine “what is the just result.”6 Still others are persuaded by the Statist’s semantic distortions, arguing that the judge’s job is to spread democracy7 or liberty.8
The Conservative may ask the following questions: If words and their meaning can be manipulated or ignored to advance the Statist’s political and policy preferences, what then binds allegiance to the Statist’s words? Why should today’s law bind future generations if yesterday’s law does not bind this generation? Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is “right” or “just” bind the individual if the individual believes the notion is wrong and unjust? Does not lawlessness beget lawlessness? Or is not the Statist really saying that the law is what he says it is, and that is the beginning and end of it? And if judges determine for society what is right and just, and if their purpose is to spread democracy or liberty, how can it be said that the judiciary is coequal with the executive or legislative branch?
The Statist considers the judiciary his clearest path to amassing authority, for through it he can proclaim what the law is without effective challenge or concern with the fleeting outcome of an election cycle. Moreover, the federal judiciary is populated with about one thousand lawyers—and the Supreme Court a mere nine—making statist infiltration easy. Even when holding high office in the executive or legislative branches, the Statist today looks for ways to enhance judicial authority at the expense of his own branch, for in doing so he seeks to immunize his agenda from a possible change in public attitudes. And the Statist on the Court tolerates representative government only to the extent that its decisions reinforce his ends. Otherwise, he overrules it.
There was a time when Franklin Roosevelt, the Statist’s favorite president, was an Originalist who respected the Constitution’s wise formulations and purpose. In 1930, as governor of New York, he delivered a speech condemning “the doctrine of regulation by ‘master minds,’ in whose ju
dgment and will all the people may gladly and quietly acquiesce…. Were it possible to find ‘master minds’ so unselfish, so willing to decide unhesitatingly against their own personal interests or private prejudices, men almost god-like in their ability to hold the scales of Justice with an even hand, such a government might be to the interest of the country, but there are none such on our political horizon, and we cannot expect a complete reversal of all the teachings of history.”9 He added, “Now, to bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government.”10
But, alas, Roosevelt went on to become the very “master mind” he had denounced earlier in his political career. In his 1944 State of the Union address to Congress, Roosevelt declared, “This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.”11 But for Roosevelt, these rights were no longer enough. He went on to propose a “Second Bill of Rights” based on “security and prosperity.”12
The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; to earn enough to provide adequate food and clothing and recreation; of every farmer to raise and sell his products at a return which will give him and his family a decent living; of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; of every family to a decent home; to adequate medical care and the opportunity to achieve and enjoy good health; to adequate protection from the economic fears of old age, sickness, accident, and unemployment; to a good education.13
This is tyranny’s disguise. These are not rights. They are the Statist’s false promises of utopianism, which the Statist uses to justify all trespasses on the individual’s private property. Liberty and private property go hand in hand. By dominating one the Statist dominates both, for if the individual cannot keep or dispose of the value he creates by his own intellectual and/or physical labor, he exists to serve the state. The “Second Bill of Rights” and its legal and policy progeny require the individual to surrender control of his fate to the government.
And there is a movement afoot among the professoriate to compel exactly that result—not through the ballot box, but by constitutional deviation.
Georgetown University law professor Robin West argues that “[w]e need…a progressive jurisprudence—a jurisprudence that embraces rather than resists, and then reinterprets, our liberal commitment to the ‘rule of law,’ the content of our individual rights, and the dream of formal equality. More inclusive interpretations—more generous reimaginings—could then undergird, and in a principled way, particular constitutional arguments. Rather than relentlessly buck, deconstruct and vilify the seeming ‘naturalness’ of legal arguments based on moral premises, we ought to be providing such premises, and natural and general arguments of our own. But first we need to re-imagine.”14 She has also promoted the view that the Fourteenth Amendment’s equal protection clause delegitimizes social and economic inequality.15 Yale law professor Bruce Ackerman says his “aim is to redeem the lost promise of the Fourteenth Amendment’s vision of national citizenship through the enactment of framework statutes and the judicial development of the meaning of ‘privileges’ and ‘immunities’ of American citizenship.”16
Here is what the relevant part of the Fourteenth Amendment actually says:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.17
No literate person can comprehend the Fourteenth Amendment to mean what the Statists in academia claim it to mean. The Fourteenth Amendment was intended to grant African-Americans the same rights that exist for all Americans, not to install the wholly foreign regimen of economic and social egalitarianism.18 The Statist willfully distorts not only the Framers’ intent in adopting the Constitution, but the actions of subsequent Congresses and state legislatures in amending the Constitution.
And these are the academic communities from which future judges are groomed and plucked.
By now it should be clear that the debate over constitutional interpretation is a false one. The Statist is not interpreting but manipulating. As Ackerman has said, “The progressive vision of frameworks centers on the economy—[it] needs to be constitutionalized in frameworks to make real the notion of a common citizenship.”19 Hence, the Statist’s agenda would be constitutionally mandated, leaving the representative branches and, ultimately, the people, no way to escape it.
Former Harvard University law professor and current Obama administration official Cass Sunstein, a leading advocate of delinking liberty and property rights—and President Barack Obama’s likely future nominee to the Supreme Court—considers Roosevelt’s “Second Bill of Rights” to be among his greatest speeches. It is, therefore, important that some attention be paid to Sunstein.
Sunstein believes that economic value and private property are not natural occurrences in human interaction but rather the outgrowth of government and law. Therefore, he and other legal “realists” assert that government authority should be used to better exploit and redistribute wealth. As Sunstein explains:
[I]f some people have a lot and others little, law and legal coercion is a large part of the reason. Of course many people work hard and many others do not. But the distribution of wealth is not simply a product of hard work; it depends on a coercive network of legal rights and obligations. The realists complained that we ignore the extent to which we have what we have and do what we do because of the law. They contended that people tend to see as “voluntary” and “free” interactions that are shot through with public force. In their view, the laws of property, contract and tort are social creations that allocate certain rights to some people and deny them to others. These forms of law represent large-scale government “interventions” into the economy. They are coercive to the extent that they prohibit people from engaging in desired activities. If homeless people lack a place to live, it is not because of God’s will or nature. It is because the rules of property are invoked and enforced to evict them, if necessary by force. If employees have to work long hours and make little money, it is because of the prevailing rules of property and contract. The realists believe that private property is fine, even good, but they denied that the rules of property could be identified with liberty. Sometimes those rules disserve liberty.20
There are thousands of brilliant lawyers who can teach constitutional law. But there are relatively few faculty positions at Harvard Law School. Are the rules rigged in academia, where Sunstein was a tenured professor prior to government service, from competition by others who might want a chance at acquiring the prestige and income that come with such a distinguished position? Does not tenure, in this case and generally, disserve liberty? Presumably Sunstein believes he has earned his way. But since his liberty and property (his job) were not linked, and since the government has the authority to determine what is or is not a property right—and its proper distribution—if Sunstein had been forced to surrender his post to make room for a more needy or deserving lawyer who coveted Sunstein’s professorship, it would seem, in Sunstein’s formulation of rights, a legitimate function of government.
Of Sunstein, Ackerman, and West, the late William F. Buckley, Jr., would no doubt repeat his oft-cited quip that “I would rather be governed by the first two thousand people in the Boston telephone directory than by the two thousand people on the faculty of Harvard Univ
ersity.”21 As Buckley later elaborated, “[T]here is a better chance of a repository of the kind of wisdom I choose to be governed by among average people than among Ph.D’s at Harvard.”22
Sunstein’s manner of thought ignores certain anthropological realities of the human species. In nature, man’s progenitors were almost never the fastest, strongest, most agile, deadliest, or toughest creatures in any situation. Moreover, man had little in the way of innate protections against climate extremes and naturally occurring threats to his existence. What differentiated man from the rest of the animal kingdom was, in part, his ability to adapt his behavior to overcome his weaknesses and better master his circumstances. One of the fundamental ways man adapts is to acquire and possess property. It is how he makes his home, finds or grows food, makes clothing, and generally improves his life. Private property is not an artificial construct. It is endemic to human nature and survival.
Sunstein’s “realism” is not new. He creates the false choice between anarchy (where there are no laws protecting the individual, private property, and contracts) and tyranny (where the sovereign and the sovereign alone arbitrarily grants fundamental rights, including property rights). Having declared the sovereign paramount to God and nature, and having delinked liberty from property, the individual must rely on the government for his sustenance. Of course, history shows that man will starve and freeze if he relies on the government for his sustenance—and surrender his liberty as well.