Just a Few Votes Away

When the Left and the Right debate (and sometimes pontificate) on what being "Constitutional" means, very often both are right.  It's not that non-contradiction has gone out the window.  After all, 1 can never equal 0 and vice versa.  What seems to be the case is that the America view of the function of government was in dispute even in the very beginning.  It is not difficult to see this is situations such as the conflict between the justices Samuel Chase and John Marshall when they butted heads with Thomas Jefferson.


For much of the last 200 years the anti-Federalist position of Jefferson held sway -- at least until it was revived by Reagan.  Though it does not exist today as it did before the Civil War, its current revival is being held up by people such as Clarence Thomas and his interpretation of the Tenth Amendment.

There are, of course the race-baiters who say, or at minimum intimate, that anything called "states' rights" hints of slavery.  But the Tenth was not suspended at Appomattox.  Neither was it nullified by the Fourtheenth or any other amendment.  The principle of federalism -- distributed self-government -- is one of those principles which balances the centralizing authority of the Constitution with the original libertarian principles of those classic "liberals" who founded this nation.

There are some things that we know when we read the Constitution itself.  Among the first observations we might make (given our current condition) is that the Constitution is not "dialectical" in its approach.  The Law of the Land does not establish rule based on the resolution of conflict.  For instance, the First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of dspeech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This sentences provides solutions to matters of speech, faith, faith practice, assembly, and petition.  It says nothing about race, class, economy, majority-minority, or any other concern.  Most of that came much later.

Bertell Ollman of NYU accomplishes several interesting points as he promotes a Marxist interpretation of the Constitution.  Among these points he "demythologizes" the the formation of the Constitution -- probably a good thing.  At the same time he notes that the anti-Federalists were concerned about the economy supported by the Constitution.  That is, those with little in way of resources would have little opportunity.  Our open system seems to be more open to those with greater resources to take advantage of opportunity.

What the Marxist misses is that there is no pure democracy.  There is no system where the opportunity of the rich, when removed, gives more to those without these same resources.  Differences in personal capacities are too significant to ignore.  Opportunity is a non-transferrable entity.

As we listen to the political rancor of an election period there is a note of libertarianism from both sides of the issue.  One promotes the libertarian sense of open opportunity.  That's the conservative position.  The other promotes a type of managed opportunity.  That's the modern liberal attitude.  But libertarianism is not at the heart of either -- it is there, but it is ancillary.

Conservatism is not, as critics like to say, the conservation of what is old.   Then they proceed to promote "progress" as the solution to human issues.  But, following Russell Kirk, conservatism can be defined as a set of principles.  These are (expanded here) [1]:

(1) Men and nations are governed by moral laws
(2) Variety and diversity are the characteristics of a high civilization
(3) Justice means that every man and every woman have the right to what is their own—to the things best suited to their own nature, to the rewards of their ability and integrity, to their property and their personality.
(4) Property and freedom are inseparably connected
(5) Power is full of danger
(6) The past is a great storehouse of wisdom
(7) Modern society urgently needs true community
(8) In the affairs of nations, the American conservative feels that his country ought to set an example to the world, but ought not to try to remake the world in its image.
(9) Men and women are not perfectible
(10) Change and reform, conservatives are convinced, are not identical: moral and political innovation can be destructive as well as beneficial

The liberal/leftist response to these is predictable.  #1 violates "separation", #2 creates class,  #3 creates inequality, #4 is unnecessary, #5 is ignored, #6 is immaterial in light of science, #7 they have already solved with unionization, #8 is adequate for today's world, #9 has been disproven by the last century of progress and the improvements to living conditions worldwide, and #10 even today's conservative accepts the various "safety nets" provided by liberals.

The conservative answer is equally measurable.
To #1:  Ending slavery was most certainly a moral law, and the Fifth and Fourteenth are no more moral than the First or Second amendments.  A moral and even religious informing of law are ciritical to justice.
To #2:  Not even the most serious communist, let alone other liberal nation, has provided any functional example of a flat democracy.  To suggest that the elimination of class can be accomplished while maintain anything other than the worse of police states is simply naive.
To #3:  Ownership of property is fundamental to the practice of freedom.  To be free is more than an internal sense.
To #4:  Both the work and labor of the individual are necessary for freedom.  Marxism removes property and so reduces freedom.
To #5:  Leftists will speak of the power of the rich but never about the unnecessary policing powers of managed economies or private religious practice.
To #6:  It is for this reason that Leftists view the language of the Constitution as "living" and subject to re-interpretation at whim.  Even the old Rationalist approach must be tempered because no ideas arise from a vacuum.
To #7:  Community is not in the province of government.  This is the domain of private society.  Only the most powerful of governments attempt to manage private life.  (See #5).
To #8:  Wilsonian foreign policy has led us into unnecessary wars and protracted entanglements.  Containment failed -- North Korea and Communist China remain when their defeat was at hand.
To #9:  The improvement of external conditions does not change the heart.  Crime remains high.
To #10:  These safety nets exist as corrections to the problems created by liberalisms.  For instance, we have higher welfare rolls partly because of no-fault divorce which forces women into poverty.  We have been made to depend on things like Social Security and  private remedy is always opposed in favor of dependence.

A debate on these points could go on ad infinitum.  But let's go back to the beginning.  The concern is that the debate about what is Constitutional will be ongoing.  Today's extreme leftist position will, I pray, fade away as people see the loss of liberty and the promotion of opportunity.  We are just a few votes away from more liberty.  Or less.

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[1] Read more in The Conservative Mind: From Burke to Eliot by Russell Kirk.  He was a contemporary of Bill Buckley and Whittaker Chambers.