WHAT DOES IT MEAN TO BE A CONSERVATIVE, PART II?

• First, --a few thoughts about the different philosophical orientations of today’s conservatives.  David Brooks makes a helpful distinction between temperamental conservatism and dispositional conservatism.  Let me explain.  The temperamental conservative is suspicious of radical, rapid reform.  Efforts to quickly transform anything will often have (in Edmund Burke’s phrase) “lamentable conclusions.”  There is a cautious awareness of reality:  modesty about what we can know and do and what we can and cannot plan.  The fundamental belief of the temperamental conservative is that society is an organism: “that custom, tradition and habit are the prime movers of that organism; and that successful government institutions grow gradually from each nation’s unique network of moral and social restraints.”  Therefore, the temperamental conservative would see the spread of democracy in Iraq through changing political institutions as shortsighted.  Society in Iraq will not change that fast.  Further, the temperamental conservative believes that power must always be clothed in constitutionalism.  To simply expand executive power, as the Bush administration has been trying to do in the name of the war on terror, fits more with dispositional conservatism.  There is more of an interest in means than in ends and how power is divided than in how power is used.  The temperamental conservative sees power as the enemy of liberty and to be used cautiously, not necessarily consolidated.  “The temperamental conservative believes government is like fire—useful when used legitimately, but dangerous when not.”  The dispositional conservative focuses on the individual, while the temperamental conservative focus on the organism of community.  The Republican Party, for example, over the last few decades has championed individual freedom and near autonomy via tax cuts, private pensions and medical accounts, for example.  There should be the maximum liberty of individual choice.  But to the temperamental conservative, this is potentially dangerous because the individual is a part of a social organism and thrives within the institutions of the family, community and nation.  Social cohesion is as important as individual autonomy and freedom.  Too much focus on individualism and autonomy will tear apart the very foundations of community, for unity is tied to community, not individual autonomy.  Order, prudence and balanced budgets are the core beliefs of the temperamental conservative.  The danger now is that the dispositional conservatism of the last few years has undermined the temperamental conservatism of the true historical conservative.  For that reason, the GOP is in real trouble.  Most Americans lean toward a more temperamental conservatism, especially in the Midwest.  Lately, the GOP has failed them and they are looking elsewhere.  A more temperamental conservatism fits more neatly with a biblical worldview, where the organism of community is reflected in the church and the family, institutions so central to God’s program.  See Brooks’s brilliant op ed piece in the New York Times (5 October 2007).

• Second, a few thoughts about conservatism and the Supreme Court.  On 1 October 2007, the US Supreme Court began its new term—the second full term of Chief Justice Roberts.  What is most ominous is that in January 2009, when a new president takes office, six of the nine justices will be over the age of 70.  Therefore, there is the real possibility that the next president could appoint as many as four justices during the first term.  The next president could in effect transform the Court.  For that reason, the major test for membership on the Court should be, in the words of Steven Calabresi, law professor at Northwestern University, faithfulness “to the Constitution as written and understood at the time of its adoption.  Likewise, the test for presidential candidates on the judiciary [issue] should be whether they can be trusted to nominate justices who will follow our written Constitution.”  What are some salient arguments for originalism in interpreting the Constitution?  Calabresi offers three:
  1. The Court’s own power to decide constitutional questions derives only from the Constitution’s status, together with treaties and federal statutes, as the “supreme law of the land.”  The Constitution’s character as law makes it binding on the courts of law, including the Supreme Court.  This empowers the courts to decide what the Constitution means.  The Supreme Court has the power therefore to overrule its own unconstitutional precedents, “just as it has the duty and power to disregard unconstitutional statutes and treaties.”
  
  
  2. Because the Court is composed of human beings, it inevitably will make mistakes.  Left uncorrected, the effect will be ongoing distortion of how our government should function.  The best example of this was the horrendous precedent of Plessy v. Ferguson (1896), which legitimized the segregation of the races.  This was morally, ethically and constitutionally a mistake—and it was wrong.  Yet, it influenced government policy and statutes until 1954, when it was thankfully overturned.  “Fidelity to the Constitution and the rule of law absolutely demanded that the Supreme Court be able to correct its own mistake . . . as it did.” 
  
  
  3. The allocation and separation of powers is central to the Constitution.  It limits and defines powers by “assigning them carefully and precisely to different federal and state institutions.”  Checks and balances, separation of power and federalism are all constitutional principles that inform the Constitution.  In Calabresi’s words, the Supreme Court is not “some kind of Supreme Council of Ayatollahs that can do anything it wants to do on a 5-4 vote.  No sane framer of a constitution would ever have written a document that required bicameralism and the president’s signature to pass ordinary laws, while leaving the most sensitive issues of morality and religion up to an unelected, unaccountable, life-tenured, elite group of judges.”  To do so would concentrate absolute power in one place.  The whole point of limited government endemic to the Constitution is to disperse and balance power.

The next president will have perhaps an historic opportunity to shape the direction of the judiciary, one of the three branches of the national government.  That decision will either restore a sense of originalism and limited government to the US or it will lead to a greater concentration of power in the hands of a few individuals who are unaccountable, unelected and life-tenured.  There is nothing more threatening to our Constitution than that!  See Calabresi’s essay in the Wall Street Journal (1 October 2007).