The term “constitutional conservative” is relatively new in U.S. political discourse. It came into use in the last decade to describe politicians such as Rand Paul and Ted Cruz, who hold conservative values and favor conservative laws and policies, but believe these must be enacted in strict adherence to the U.S. Constitution. In other words, the philosophical end does not justify the political means.
During President Obama’s second term, the constitutional conservatives were seen as heroes by many — especially those in the Tea Party movement — when they stood on the floor of Congress for hours filibustering legislation they considered unconstitutional. But they often earned the scorn of liberals and moderates who saw them as grandstanding obstructionists.
Today the constitutional conservatives are back mucking up the machinery of government. Only this time, they are slowing down enactment of President Trump’s agenda.
Recently, I was engaged in a political discussion with an old friend and Trump enthusiast who said he considered “We the people” to be the most important words in the Constitution. The people had spoken when they elected Trump president, he proclaimed, so Congress had a duty to get busy and enact his agenda to fulfill the will of the people.
I thought about this for a moment, then disagreed. To me, the most important words are in the Declaration of Independence, where it says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights” and goes on to say that “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” This statement was an explicit rejection of “divine right” by which kings had ruled for thousands of years.
Under divine right, the kings claimed to have been appointed by God to rule over their dominions, and the only rights the people had were those granted to them by the benevolence of the king. Thus, the assertion of our founding fathers that God gave the people the right to rule their own lives and that government derived its legitimacy from the consent of the governed was a novel and radical idea.
But that did not mean the founding fathers embraced the idea of democracy and majority rule. On the contrary, they feared a dictatorship by the majority, and went to great lengths when designing our government to separate power, put in checks and balances, and protect the rights of the minority through free speech and freedom of the press.
The notion that all the branches of government should line up and do the bidding of a leader because that person received a majority of the votes in the Electoral College (which the founding fathers created so the president could not claim to speak for “the people”) would have been abhorrent to them.
During Obama’s presidency, many conservatives were concerned about his constitutional overreach — especially in his second term, when he tried to bypass Congress and legislate through executive orders. But that was par for the course: the left in the United States (“liberals,” “socialists,” “progressives,” or whatever you want to call them) have always been frustrated with the constraints imposed on the federal government by the Constitution because they need a large and powerful central government to carry out their redistributive schemes and social engineering. That is why the appointment of a strict constitutionalist, such as Neil Gorsuch, was so important to thwarting the liberal agenda.
The Constitution has been less of a hindrance to conservatives because they believe in those things the Constitution is designed to protect: limited government, personal liberties, fiscal responsibility, free enterprise, property rights and freedom of speech and expression.
But Trump’s core supporters are frustrated, angry and fed up with the Republican Party’s inability to enact a conservative agenda. They voted for Trump because they believed he would get things done — repeal Obamacare, build the wall, create high-paying industrial jobs, defeat Islamic terrorists, crack down on crime, rebuild our crumbling infrastructure, lower our taxes, and reassert our military power to regain respect around the world — and they want it done now!
But there is a problem. The Constitution does not give the president the power to do all the things Trump promised he would do; only Congress can make federal laws. And the scope of federal power is limited to those areas assigned to it by the Constitution.
Many of Trump’s core supporters seem to believe that their political goals are so important to the future of America that they justify the use of any means to achieve them. While constitutional conservatives do not necessarily disagree with these goals, they fear the way Trump wants to achieve them will either concentrate too much power in the executive branch of government or expand the power and scope of the federal government. Thus, the Trump administration is likely to continue to have trouble unifying the Republican Party behind its agenda, and the Supreme Court will be kept very busy ruling on the constitutionality of its actions.