More on Constitutional Conservatism

Conor Friedersdorf has some serious reservations about the Tea Party’s constitutional conservatism, praised by Yuval Levin, which I’ve already discussed here .

Better to be governed by a “constitutional conservative” than a populist or technocrat, or so I’d argue. But more dangerous than a president sympathetic to populism or technocracy is one who would seize all the war powers that John Yoo would give him. Aside from Ron Paul, every Tea Party affiliated Election 2012 candidate for president seems to think such radical powers are the president’s due. Aside from the power to torture, President Obama himself substantially agrees.

It would be helpful if those at National Review , the Heritage Foundation, and elsewhere would stand up to this bipartisan move toward a kingly executive who reigns over an endless War on Terrorism, unchecked in his powers, as if that is what’s needed to keep America safe.

I have my own reservations about Friedersdorf’s reservations.  Hamiltonian “energy in the executive” is an essential part of our constitutional government, and there is a significant difference between the Article I grant of legislative power to Congress (“all legislative powers herein granted”) and the Article II grant of executive power to the President (“the executive power shall be vested”).  The latter is more open-ended than the former, for reasons having to do both with the nature of execution and the unpredictable scope of the threats the nation may face in foreign affairs.

I’m inclined to agree with Abraham Lincoln , to be sure not the president most loved by libertarians:

If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them — in other words, that the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger, apprehended by the meeting, that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.

There is a difference, of course, between a Civil War with a determinate endpoint and a War on Terror, whose terminus is much less distinct.  I’ll grant Friedersdorf that much.  But “we the people” will surely know the end when we see it, and if we can’t be trusted under those circumstances to resist (at least at the ballot box) the excesses of an Administration that would continue its crisis-mongering ways, then we are no longer worthy to be a free people.

Joseph Knippenberg is Professor of Politics at Oglethorpe University.