The sudden death of Justice Antonin Scalia forces us to reconsider the role that the Constitution plays in our rhetoric and in our imagination. Our constitutional system is more fraught than most of us had dared admit, even as our politics has leaned ever-more-strongly on the Constitution to unify the opposition to the left.
In the moments after Scalia's death was announced, Michael Brendan Dougherty wrote that it “Says something horrible about our system of government that one death has people imagining the complete legal transformation of the country.”
Dougherty is right. The death of Scalia exposes a dangerous rigidity within the structure of the Constitution itself. A compact, aggressive, and liberal Supreme Court majority could enact whatever social policies it chose and could exercise an all-purpose veto over state or congressional legislation that would run afoul of the preferences of the left. As long as the liberals on the Court retained the support of thirty-four senators in order to block either constitutional amendment or senatorial removal, the Court could act as it pleased.
As long as the center-left retained a blocking one-third-plus-one in the Senate, elections would have no effect. One option would be to wait, for decades maybe, for sufficient Court openings to correspond fortuitously with moments of center-right control of the government. The only other option that could be enacted with simple congressional majorities would be for a combination of the abolition of the filibuster and the kinds of court packing that hasn't been attempted in eighty years and that would destroy whatever legitimacy remained in the federal judiciary. It is hard not to conclude that the Constitution is not all that we hoped.
But perhaps we have not been good enough friends of the Constitution in our politics. Matthew Continetti, the editor in chief or the Washington Free Beacon, wrote recently that “Constitutionalism was meant as a political corollary of [Scalia's] originalism.” Continetti wrote that constitutionalism did not live up to its promise and that conservatism would have to be reformulated after the 2016 election.
The failure of constitutionalism to unify the right can be seen in the Trump insurgency. Trump almost never talks about liberty, and he is about the furthest thing from someone interested in constitutional restraints on the government—and yet, he is the candidate of the alienated portion of right-leaning citizens. We should pause for a second to consider how far we have come. The Tea Party started with rallies that featured tricorn hats, Gadsden flags, and other symbols of the founding era. That rebellion is now led by someone whose public persona is closer to Charlie Sheen than James Madison. Constitutionalism is not winning.
There are several ways in which we should respond to the present situation. First, we should emphasize constitutional fidelity and ditch constitutional idolatry. We should stick by Scalia's textualism not because the Constitution is optimal, but because it is the cornerstone of the rule of law in our present situation. The only practical alternative to fidelity to the Constitution is successive episodes of lawlessness by the left and right (and whatever other names are adopted by other political factions in the future). We should also be unsentimental in killing off norms that make our already cumbersome Constitution difficult to operate. The current filibuster makes it more difficult to undo bad laws passed by liberal majorities, makes it more difficult to get the approval of constitutionalist judges, and destroys accountability among senators who can point to the sixty vote requirement as an excuse for doing nothing other than passing out favors to organized interests. It should be killed. We should accept losing elections with good grace, but we should not accept procedural rules that ensure that we lose even when we win.
We should also reduce the role that the Constitution plays in our rhetoric. Conservatives correctly say that liberals substitute policy thinking for constitutional thinking. Liberals decide what policies they want and then convince themselves to believe (or pretend to believe) that the ever-evolving Constitution mandates liberal policies and invalidates the agendas of their opponents.
Conservatives have come to do the reverse. In their popular rhetoric, conservatives tend to substitute constitutional thinking for policy thinking. Defenses of the Constitution are all well and good, but unless we plan to go back to the pre-FDR understanding of the commerce clause (and we are not going back to that), the constitutional system leaves enormous room for legitimate political action and for dealing with our substantial policy problems.
The federal health insurance purchase mandate in Obamacare may well have been unconstitutional, but constitution-based opposition to the left is not enough. Regulating health care markets and forming viable risk pools for financing of catastrophic costs remain unsolved problems. How those issues are addressed will determine the security of people's health insurance and the amount of money they take home. If we do not offer plausible, attractive answers to their concerns about health care policy, the people will eventually turn to the left—even if the left's answers are unconstitutional.
Conservative wonks have produced polices to deal with middle-class concerns. Some politicians have even signed on to those polices, but most normal people have never heard of them. Normal people who don't pay much attention almost never hear anything from conservatives about specific policies that (consistent with the Constitution) directly impact their lives. Marco Rubio has adopted several such policies. He mentioned (and eloquently defended) his support for an expanded child tax credit, but only after that policy was attacked by the moderator.
American conservatives should remain constitutionalist, but if this constitutionalism is to survive it must be married to a constructive pro-middle-class policy agenda. This won't be easy. If, as seems possible, the Democrats win the next presidential election and we get an aggressive liberal Supreme Court majority, we will be required to act as patient, determined, and bold defenders of the Constitution's words. At the same time, we should be willing to discard norms that abet abuses of the Constitution. But we should also remember that a constitutionalism that is seen as indifferent to the struggles of the working-class will not prevail.
Pete Spiliakos is a columnist for First Things. His previous articles can be found here.