Conservatives favor strict construction of the U.S.
Constitution. How do we know? They never stop telling us
so.
But judging by what they say about the late Iraq war, we
may conclude that most conservatives are just
phony-baloney constitutionalists. These politicians, such
as Rep. J.D. Hayworth (R-Ariz.), and pundits, such as Sean Hannity
and Rush Limbaugh, are as committed to the pernicious idea of
the living Constitution as the so-called
liberals they despise.
The living Constitution is the doctrine that
the principles in the Constitution, which was supposed to
limit government power and thereby protect individual
liberty, must change with the times without resort
to the onerous amendment procedure specified in the same
document. Thus when the Supreme Court during the New Deal
upheld legislation that previous generations of Americans
would have condemned as unconstitutional, big-government
advocates invoked the living Constitution
doctrine to explain why amendment was unnecessary.
It should be obvious why this is such a dangerous
practice: it effectively repeals the Constitution. As
Thomas Sowell put it: to say the Constitution is living
is to say that its dead. Or as Walter Williams
suggests, those who like a living
Constitution should think about what it would mean
to play poker with a living rule book.
For these reasons, conservatives have led the charge
against this pernicious doctrine. They have often been
effective in pointing out its horrendous consequences.
After all, it turns the Constitution upside down. The
Framers made the amendment process difficult because a
constitution that is easily amended is more likely to be
changed casually. As the Constitution was written, the
central government is permitted to exercise only those
powers expressly delegated, which, as James Madison
noted, were few and defined. If a power is
not listed, the government may not exercise it. If
someone wants that power exercised, he has to undertake
the burdensome task of amending the Constitution.
But under the living Constitution doctrine,
the government can do anything as long as it is not
expressly forbidden. Thus the burden of amendment is
shifted from those who wish to expand government power,
to those who wish to maintain liberty and keep government
constrained. That directly subverts the system
established by the Framers. It came about as a result of
decisions by judges and so-called lawmakers.
How are conservatives guilty of embracing the very
doctrine they claim to abhor? Look at what they say about
President Bushs war in Iraq. Bush said he had to go
to war to protect us from Saddam Husseins weapons
of mass destruction. He also justified the war on grounds
that Hussein was brutal to the Iraqi people (which he
was). As the war proceeded and no threatening weapons
were found, Bush changed the emphasis to the liberation
of the Iraqis, as foreshadowed by the name Operation
Iraqi Freedom. Now that the war has been over for weeks
and still no weapons have been found, just about all we
hear is how wonderful it is that we freed
Iraq. Conservatives are at the front of the chorus
singing George Bushs praises as the great
liberator.
Theres only one problem. There is no warrant in the
U.S. Constitution for the president of the United States
to launch a war in order to liberate people from a brutal
government. You can look it up. Americans used to know
that. In 1821, then-Secretary of State John Quincy Adams
famously said, America goes not abroad in search of
monsters to destroy. She is the well-wisher to the
freedom and independence of all. She is the champion and
vindicator only of her own.
This is not the only example of conservatives
embracing their adversaries doctrine. The
Constitution clearly says that only Congress can declare
war. But Bush never asked Congress to declare war, and it
did not do so. Instead, it illegally delegated the
war-declaring power to the president.
But most conservatives wanted war, so they did not care.
For them, the Constitution has to keep pace with the
times. It has to live. So they did their part
to kill it.
Such is the bankruptcy of what goes by the name
conservatism today.
Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of Ideas on Liberty magazine.
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