In the past few years I have noticed an increase in the use of the term “constitutional conservative”, usually to describe a candidate or politician who is associated with the Tea Party or is otherwise generally considered more conservative by some degree. I have seen this term used a lot lately to describe Senator Ted Cruz, the recent winner of the Iowa caucus. Perhaps I am wrong, but I don’t recall this term being used much prior to a few years ago, which is why I noted it with some curiosity as it began to appear more frequently. Jack Hunter also notes the newness of the term in this article from 2012.
Now it must be conceded that there is some room for confusion here, because almost every pundit and politician believes or at least pretends to believe that the policies he promotes are within the bounds of the Constitution. Few American politicians announce their intentions to willfully ignore the Constitution or articulate any qualms with the Constitution. Both opponents and advocates of gun control, for example, generally believe the Constitution is on their side. The same is true of the abortion issue and on and on, but issues-activists don’t usually describe themselves as Constitutionalists either. Even people and organizations who place a particular emphasis on the Constitution, such as the ACLU, are not commonly called and don’t self-describe as constitutionalists. ACLU types might call themselves civil libertarians, for example, and they come to conclusions regarding the Constitution that are quite at odds with people who identify as Constitutionalists.
Despite some opportunity for confusion, “Constitutionalist” has over time come to mean a pretty specific set of beliefs, especially among people who identify themselves as such and use it to favorably describe others. Constitutionalists believe that the Constitution should be interpreted and followed as originally intended by those who wrote and ratified it. They reject the idea that the Constitution is a “living and breathing” document. Unless it has been specifically amended otherwise, they believe, the Constitution means now exactly what it meant in 1787 – 1789.
For the Constitutionalist, the Constitution is not primarily a document that outlines what the federal government can’t do, but is rather a document strictly describing what the federal government is authorized to do. The sine qua non of Constitutionalism is the belief in “enumerated powers” which flows from the determination that this was the intent of the Framers and state ratifying conventions. Along with this belief in enumerated powers, there are other beliefs that generally travel together, some to a greater or lesser degree. Constitutionalists reject the broad interpretation of the Commerce Clause and the General Welfare Clause. They reject judicial supremacy with regard to who has the “final say” in interpreting the Constitution, and some reject the practice of judicial review outright. (This is a bit of an intra-constitutionalist feud.) Constitutionalists do not automatically defer to the most recent Supreme Court decision to settle the constitutionality of a matter because they believe many such decisions are in error since they were not reached by originalist methods. Rather, they appeal to the original intent of the Framers each time a Constitutional question arises. They reject “incorporation”, meaning they don’t believe the Bill of Rights was originally intended to be applied to the states, and most reject that this was the original intent of the 14th Amendment as well. Constitutionalists also tend to be open to the idea of state nullification and interposition and even secession as remedies for an overreaching federal government.
These beliefs can be, especially when taken as a whole, rather jarring to the modern consciousness which has come to accept the conventional wisdom on such matters. Nevertheless, they represent a consensus that serious Constitutional thinkers arrive at by the consistent application of the originalist methodology.
So how do so-called “Constitutional conservatives” differ from Constitutionalists proper? My hunch from the start has been that its original popularizers wanted a term that invokes the good feelings most people and especially conservatives have for the Constitution without all the baggage associated with “Constitutionalist”, which has truly radical implications by modern standards, and this appears to be how the word is generally used. I searched “define constitutional conservative” and what I found were a lot of vague invocations of Constitutional “principles” and other general principles (fiscal responsibility for example) with very little explanation of how the Constitution was any more than a totem in this formulation. One article revealed by my search introduced the concept and then proceeded to define it by quoting…the Declaration of Independence? (The article did, however, confirm my impression that this is a term of relatively recent origin.)
Constitutional conservatives seem to cherry-pick their application of strict constructionist principles to suit their needs. They invoke the Constitution to oppose the Obamacare mandate, for example, but are seemingly untroubled by the fact that a similar argument could be made against Medicare and Medicaid, the FDA, etc. I don’t require that every candidate I support fall on his sword by inveighing against Medicare and the FDA or whatever on enumerated powers grounds. Dismantling the 80 – 90% +/- of the federal government that isn’t actually constitutionally authorized isn’t politically or logistically feasible at this time, but I do ask that if the Constitution is invoked to describe your politics, you not rhetorically concede the Constitutional legitimacy of such programs.
The aforementioned Ted Cruz and his supporters demonstrate well this disconnect between Constitutional conservative and Constitutionalist. For example, if you want me to take seriously your claim to the title “Constitutional conservative”, you have to at least attempt to address the eligibility question from an originalist perspective. You can’t cite current law or a recent court case or conventional wisdom and pronounce the matter settled. While I think there is a growing consensus among serious originalists that Cruz is not eligible, an originalist case can arguably be made that he is, but you at least have to attempt to make that case. The original intent of the Framers with regard to the “natural born citizen” requirement seems not to have even occurred to many Cruz supporters I have interacted with, and they often seem perturbed by the mere suggestion that they need to address it. Perhaps if you want me to accept your professed devotion to the Constitution, maybe you shouldn’t swear your fidelity to a far off foreign country in your rather ungracious Iowa victory speech. Where the heck is standing with Israel in the United States Constitution?So far as I can tell, Ted Cruz isn’t even trying to represent the original intent of the Constitution or the spirit of the American Founders.