Foreign Policy and the Constitution

Yuval Levin’s constitutional conservatism leaves out one crucial thing: a respect for constitutional procedure.

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It is a rare occurrence in our day of near infinite, near instant online commentary to find an article that leaves the reader with the assurance that he’s just finished the most important thing he’ll read that week, perhaps longer. But that was precisely my response to Yuval Levin’s “What is Conservative Constitutionalism?”, the cover story in the latest National Review. Do yourself a favor: If you haven’t yet read it, go read it now. If you have, read it again. Go on, I’ll wait for you.

Invoking the seeming incompatibility of rule-by-experts and the two popular movements of our day—the Tea Party and Occupy Wall Street—Levin argues that technocracy and populism were for early 20th century progressives “two sides of the same coin.” This they shared with the Founding Fathers, he continues, but unlike American progressives those who crafted the Constitution were skeptical of both political impulses. Levin writes:

“The Constitution is built upon a profound skepticism about the ability of any political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus. Experts should not govern, nor should the people do so directly, but rather the people’s representatives should govern in a system filled with mediating institutions and opposing interests — a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously…”

Levin goes on to argue that there are two kinds of liberalism, distinguished by their posture towards the forms that “impose structure and restraint on political life”:

“Thus one view understands liberalism as an accomplishment to be preserved and enhanced, while another sees it as a discovery that points beyond the existing arrangements of society. One holds that the prudent forms of liberal institutions are what matter most, while the other holds that the utopian goals of liberal politics are paramount. One is conservative while the other is progressive.”

It is this debate, rather than populism versus technocracy, Levin concludes, that animates the present political moment. While progressives have by and large opted for both technocratic rule and populist response—both guided by utopian aspirations—conservatives should embrace the Constitution’s spirit of skepticism, reform, and deliberate action.

Proving that Newton’s third law of motion has a digital correlate, Levin’s piece has drawn a fair amount of reaction, some of which is quite good. Included in this category is Conor Friedersdorf’s piece over at The Atlantic, “The Tea Party: ‘Constitutional Conservatives’ in Name Only.” As the title all but spells out, Friedersdorf argues that Tea Party conservatives don’t live up to the constitutionalism Levin attributes to them. By his lights, any new conservative leadership drawn from the current supply (with the exception of Ron Paul) “would embrace the War on Terrorism’s most alarming excesses and continue our decade long trend away from being governed in strict accordance with the United States Constitution.” Conceding that a Levin-esque constitutional conservative executive is to be preferred to a populist or technocrat, Friedersdorf warns, “But more dangerous than a president sympathetic to populism or technocracy is one who would seize all the powers that John Yoo would give him.”

The main point here is that while Levin’s conservative constitutionalism may be deduced from the principles of conservatism, it’s a far cry from the actual constitutionalism of many conservatives. Tea Partiers, he argues, are more than happy to be constitutionalists when they’re talking about health care or financial reform, but when it comes to national security they can be as reckless as progressives. This is an important point, not least because it draws attention to a too often neglected topic among conservatives. But what’s especially important about Friedersdorf’s argument is that it points toward another component of a truly conservative constitutionalism, one that is discernible in Levin’s argument but not directly engaged.

The mistake of John Yoo style constitutionalism is not that it comes to the wrong legal or historical conclusions—that is a separate matter—but that it’s guided by a principle that forecloses the input and checking capacity of other political actors. It is the president that is empowered to conduct foreign affairs, and the limits of those powers are left to his discretion. Such constitutionalism certainly denies the framers’ skepticism of man’s capacity. But more than that, it ignores the purpose of the constitutional structure they established.

The system of checked and balanced powers, dispersed among the three branches of government, was intended not only to “prevent sudden large mistakes,” as Levin rightly observes, but also to facilitate the pursuit of the ends for which the government was established—consensual governance, the rule of law, national security, the protection of basic rights, and economic prosperity. Multiple governing institutions are needed because these are complex ends. They permit of numerous definitions, they are sources of disagreement, and they can be pursued in any number of ways. Moreover, they are often in tension with one another and prudential judgment is required to decide between competing goods.

For these reasons, in conjunction with the stubborn finitude of man, the pursuit and protection of these values cannot be entrusted to a single institution. Understanding this, the framers designed institutions that express the core values of constitutionalism in different measures, with different emphases, and through different mediums. It is through engagement between these institutions and the constitutional perspectives they generate that the full range of values that undergird constitutional self-government are brought to bear on the issues of the day. And the price of constitutionalism is submitting one’s own preferences to the governing process, forgoing the conveniences of unitary decision-making and embracing the difficult work of persuasion and consensus building.

Taken together, Levin’s and Friedersdorf’s arguments amount to an articulation of what a conservative constitutionalism looks like and an admonition to live up to it. But no truly conservative constitutionalism is complete unless the understanding of moderating forms, rooted in a skepticism of man’s capacity, is connected to a respect for constitutional procedure. Doing so requires first understanding our constitutional forms, the institutions and processes put forth in our governing charter, and then abiding by them, even when it would be easier to do otherwise. This is a constitutionalism that should appeal to all who enjoy the blessings of liberty, but foremost those who profess fealty to the Constitution and rule of law.

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2 Comments

  • Avatar
    December 5, 2011

    kev07wan

    The Founders, by a narrow majority, certainly desired slow, often painfully slow, but steady change when it came to policy-making. My main problem, though, with arguments like these is the idea that the Founders had some unanimous consensus on what the Constitution needed to do. Hamilton actually favored a strong, fairly active, Federal government, even monarchy. But somehow his views are forgotten when we talk about the “Founders.”

  • Connor Ewing
    December 8, 2011

    Connor Ewing

    Thanks for the comment; you make a very good point. Overly broad use of “the Founders thought…” as an argument from authority presents numerous methodological problems. On balance, it is more misleading than useful. Moreover, it’s substantively misleading. The “Founders thought…” narrative implies a constitutional order whose powers and purposes were the result of consensus when in reality there was a great deal of disagreement throughout the framing and ratification processes. (Your point about Hamilton’s sentiments is right on the mark, though I may part ways with you on the monarchy bit.) Indeed, among the principal motivations for establishing the Constitution was putting in place a suitable framework for the adjudication of these disagreements (e.g., the role of the central government, the extent of the commerce power, the precise nature and purpose of the power to impeach). Implied by my argument about interbranch deliberation (which I also explored in a previous piece, “Conflict and Constitution”) is the argument that preserving these structurally-induced conflicts is faithful to the tensions and unresolved questions present in the Constitution’s text and history.

    That said, we mustn’t let this concern prevent us from recognizing and affirming those areas where there actually was substantive consensus among the Founders. I, along with Levin, believe that those involved in the drafting of the Constitution shared a notion of human ontology that is robust enough to speak of in unitary terms. While there certainly were important disagreements at the Constitutional Convention, there are equally important areas of agreement. And the first step toward understanding the Constitution’s history is distinguishing between the two.