Question for the Bachmann campaign: What is a constitutional conservative?

Tom Schaller says Michele Bachmann's extreme deference to the founders is absurd

July 12, 2011|By Thomas F. Schaller

In case you hadn't heard, Michele Bachmann is running for president as a self-proclaimed "constitutional conservative." The Minnesota congresswoman, who is surging in the polls, believes the label is a strong selling point for her among Republican primary voters. She's probably right.

But what, exactly, is a constitutional conservative?

Ms. Bachmann, who boasts two law degrees, recently defined it this way: "I believe our founders knew what they were doing when they designed a limited government with specific, enumerated powers. I'm also convinced that many of our problems result from the federal government's insatiable — and unconstitutional — grab for power and money." She venerates the 10th Amendment, which reserves powers not delegated to the national government to the states.

For a variety of reasons, the longing for a return to some perceived, 18th century constitutional ideal is problematic. This is the 21st century, and the notion that the founders could foresee every need of the nation, in perpetuity, is absurd.

That's why they wrote a short, vague and flexible document that, most importantly, was limited to the definition of powers, rather than policy. The founders instead rather wisely left the task of policymaking to the offices and officers created by the Constitution. In fact, the Constitution only twice waded into matters of public policy, and both slavery and Prohibition proved to be monumental errors: The first caused a civil war; the second led to the only reversal by amendment of an earlier amendment.

Ms. Bachmann is correct that the founders wanted to limit the powers of the new national government, against both the states (federalism) and the unalienable powers retained by individual citizens (civil liberties). But she and other politicians like her are mendaciously misinterpreting these limitations as proof that the founders wanted a limited government with respect to its size or reach, or that they would oppose a particular government policy.

For example, conservatives like Ms. Bachmann, who want to repeal the Affordable Care Act, often ask: Where in the Constitution does it authorize the national government to be involved in health care? The preamble speaks of promoting the "general welfare" of the nation, but they're right that no such specific authorizing language exists.

But constitutional omissions do not imply proscription. Nowhere does the Constitution stipulate that the government should have fighter planes or a space program. Of course not: In 1787, humans hadn't yet figured out how to fly. But that doesn't mean the federal government's purchase and use of F-16s or the space shuttle is unconstitutional.

Nor does omission imply permission, as religious conservatives often claim when noting that the Constitution's lack of a specific church-state separation clause implies that religion can or should be infused into public matters. By such logic, a man can have forcible sex with his 12-year-old nephew; after all, neither incest nor rape nor homosexuality are expressly prohibited by the Constitution.

Constitutional conservatives say they pine for a government that venerates the original language of the Constitution, without the impertinent interpretations of judges. But reliance on such "originalism" is also dangerous business.

Remember: The men who convened in Philadelphia that fateful summer were fallible. They were wrong about matters ranging from the rights of women to the convoluted, two-votes-per-elector original design of the Electoral College. Amendments later fixed each of these problems, but amendments imply imperfection. The founders got a lot right, but gods they were not.

Because those fallible founders are now dead, courts and judges must determine how to apply the Constitution's original language to today's political controversies. Does the leading clause of the 2nd Amendment, which cites the need for a "free state" to have a "well regulated militia," imply that the right to bear arms is limited to members of government-supervised, uniformed drill units? Should we enslave prisoners — which several states did for decades following the Civil War via the inhumane "convict lease" system, until courts finally interceded — just because the 13th Amendment to this day permits slavery as "a punishment for crime"?

Constitutional conservatism is a catchy phrase. But unless Ms. Bachmann and her followers can clearly define it, the term is meaningless. We should be especially wary if the label becomes a tautological ploy to assert the constitutionality of every policy people like Ms. Bachmann support and invalidate as unconstitutional any policy they oppose.

Thomas F. Schaller teaches political science at UMBC. His column appears every other Wednesday. Email:

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