Mickey Edwards' op-ed The Right's Wrong Turn in today's LA Times purports to summarize the history of modern conservatism and the proper conservative attitude towards the Constitution. According to Edwards:
Forty years ago this November, Lyndon B. Johnson trounced Barry Goldwater in the Arizona senator's bid for the presidency. But far from conceding defeat, Goldwater's supporters saw the election as a mandate to build a reinvigorated national conservative movement aimed at changing America's course. ... On the electoral level, there is no doubt that Goldwater's defeat has been avenged. Conservatives have come out on top and liberals are on the run. But to what end? ...
But on other matters, there are disturbing signs that conservatism has lost its way in the years since Goldwater argued that the most important question to ask of any public policy proposal was whether it maximized freedom. ... That emphasis on individual rights no longer seems to be the principal focus of conservatives.In other words, modern conservatism is a version of classical liberalism that sprang fully formed from the Goldwater campaign as Athena sprang from Zeus' head. This is, of course, a total crock. It ignores the essential contributions of leaders such as Russell Kirk or Bill Buckley, whose Burkean conservatism provides a sharp counterpoint to the radical claims Goldwaterism makes on behalf of the autonomous individual. It ignores the efforts of fusionists, most notably Frank Meyer, to create a coherent melding of the two strands. (My own position tends to be mildly fusionist, as I self-identify as a social conservative with modest libertarian leanings.) Indeed, it is such a radically revisionist take on the history of modern conservatism as to verge on misrepresentation. Modern conservatism is not solely about "individual rights," but rather (as Ramesh Ponnuru explained) is premised on "three basic propositions: that American foreign policy should seek to end totalitarian regimes; that the domestic functions of government, and especially of the federal government, should be strictly limited; and that the moral precepts traditionally associated with Christianity (sometimes the formulation includes Judaism as well) should be upheld."
Exposing the errors in Edwards' historical treatment is critical because those errors under gird the next step in his project; namely, his claims about the proper conservative attitude towards the Constitution. in Edwards' view, the Constitution is some sort of Holy Writ devoted to protection of a radical conception of individual autonomy:
With little public debate about the fundamental question — what is the role to be assigned to the Constitution in considering issues of public policy? — modern conservatives have come increasingly to treat the Constitution as something far less than America's founders intended.
The most recent, and most egregious, example of this changed perspective is found in the willingness of many conservatives, the president among them, to amend the Constitution to prohibit marriage between people of the same sex. This is not to argue in favor of such marriages; it is simply inappropriate for the Constitution to set rules for the granting of marriage licenses.
And that is not the only example of conservative attempts to undermine the Constitution. A group of Republican legislators is revisiting the possibility of a constitutional prohibition against the burning of the American flag. Such an act is widely and properly disapproved. But the Constitution's purpose is to guarantee individual rights, not to foreclose them.Again, this is a total crock. Edwards claims conservatives "once worshipped" the Constitution. Maybe the atheists amongst the Goldwaterites did so, but those of us who learned our conservatism at the feet of Russell Kirk know that a core principle of conservative thought is belief in "an enduring moral order." We refuse to bow down before the Constitution; for that way lies the idolatry of civic religion. (Careful readers will note the overlap between this discussion and the recent blogosphere kerfuffle over what I have described as Randy Barnett's libertarian justification of judicial activism.)
Edwards' conception of the Constitution is belied by the document itself. Much of the document is simply organizational. Much of the rest of the document is concerned with the rights of groups, especially states, as with individual liberty. Consider, for example, the Tenth Amendment, which reserves rights "to the states respectively, or to the people," not to the people alone.
Why then is it "simply inappropriate for the Constitution to set rules for the granting of marriage licenses"? The Constitution has been amended, after all, to (XVI) create an income tax. Even more to the point, it was amended (XVIII) to prohibit sale of intoxicating beverages - an amendment repealed not because of some theory of that the Constitution is sacrosanct, but because it didn't work. And to limit compensation of Congress' members (XXVII). If these examples could fly, why not the FMA? Only Goldwaterite fiat stands in the way.
