‘Constitutional’ conservatives’ selective love for Bill of Rights
By Steve Rendall


Right-leaning pundits play a key role in a growing fad of self-styled “constitutional conservatives” who say Barack Obama is subverting the U.S. Constitution—and brandish pocket-sized copies of the document to prove it. The pundits cite a potpourri of purportedly unconstitutional policies, including healthcare legislation, corporate bailouts and perhaps even a cover-up over where Obama was born.

And they’re making an impact. A Nexis database search of U.S. newspapers and news wires using the terms “constitutional conservative/conservatism” gives some indication of the growing prominence of the trend. Rarely mentioned in the year 2000 (12 times) or even in 2009 (30), it caught fire in 2010 with 628 mentions and now outpaces “compassionate conservative.”

Constitutional conservatism counts among its ranks some of the GOP’s biggest names: relative newcomers like Sarah Palin, senators Jim DeMint and Rand Paul, and Rep. Michele Bachmann, along with old-guard conservatives such as senators John Kyl and Orrin Hatch and Reagan Attorney General Ed Meese. The right’s leading think tank, the Heritage Foundation, regularly decries assaults on the Constitution (e.g., “Restoring the American Compact,” 9/16/10). The Cato Institute, which challenges the healthcare act on constitutional grounds (Cato.org, 12/17/10), specializes in arguing that the financial bailouts were unconstitutional (Cato.org, 10/20/08.)

In February, 80 conservative groups signed on to a manifesto, “The Mount Vernon Statement: Constitutional Conservatism: A Statement for the 21st Century.” In addition to Heritage president Edwin Feulner, signatories included Meese, Grover Norquist of Americans for Tax Reform and Morton Blackwell of the Leadership Foundation. Conservative media figures who signed on included Human Events’ Tom Winter, National Review’s Kathryn Lopez and Brent Bozell of the Media Research Center.

Right-wing appeals to “constitutionalism” are not unprecedented; the Clinton years also saw a surge in constitutionalism on the right, largely located in militia and so-called patriot groups, whose ideology resembled today’s constitutional conservatism. The transformation of fringe views of the ’90s into today’s mainstream conservatism has much to do with an enthusiastic corps of apostles in the corporate media.


“That Rock in the Healthcare Road? It’s Called the Constitution” was the headline over a widely syndicated George Will column (Washington Post, 1/14/10) lambasting White House–backed healthcare legislation for requiring individuals to buy private insurance. In another column (Washington Post, 3/29/09), “Bailing Out of the Constitution,” Will targeted the Emergency Economic Stabilization Act of 2008 (better known as the TARP bailouts) for allowing the White House to decide where the funds should be spent, which Will says violates a constitutional doctrine forbidding Congress from delegating such powers:
FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates “the nondelegation doctrine.” Although the text does not spell it out, the Constitution’s logic and structure—particularly the separation of powers—imply limits on the size and kind of discretion that Congress may confer on the executive branch.


Will’s appeal to the constitutional authority of GOP partisans at FreedomWorks, and to constitutional language he admits “does not spell out” what he is attempting to argue, is amusing. But it’s also worth noting that the bailout law was originally signed by George W. Bush (10/3/08); Will’s column declaring it unconstitutional ran five months later, after Obama, who continued the program, took office.

Fox News contributor and Washington Post columnist Charles Krauthammer (Special Report, 7/9/10) also says the healthcare act subverts the American compact: “Obama-care won’t stand a minute of scrutiny under Tenth Amendment analysis.” (The Tenth Amendment, which reserves powers not granted to the federal government “to the States…or to the people,” is a favorite of “constitutional conservatives.”)

On Rush Limbaugh’s radio show, where calling the president a “boy” (10/27/09) or describing him as looking “demonic” (10/18/10) is considered responsible commentary, charging the White House with subverting the constitution is de rigueur (e.g., “Obama Thugocracy on Display in Un- constitutional Chrysler Takeover,” Rush Limbaugh.com; 5/5/09).

Fox News talker and Weekly Standard editor Bill Kristol boasts (Weekly Standard, 6/28/10) of “the peaceful constitutionalists-populist political realignment” that he and fellow conservative pundits have helped create, adding, “The small people are winning.” According to Kristol (Fox News Sunday, 4/11/10):
One thing that motivates conservatives today is the sense that the Constitution has become a nothing…. There’s no constraint on government…. I think the notion that there’s a kind of constitutionalist agenda on the right to oppose the progressive agenda on the left has actually gone further down into the populace, you know, than constitutional-type issues normally do.


That’s for sure.


From the McCarthy Era through the Patriot Act, the right has been more associated with assaults on the Constitution than appeals to it. Thus current calls for the trial, execution or assassination of WikiLeaks representative Julian Assange (see p. 5) are no aberration, but exist on a continuum with conservative calls for the heads of New York Times reporters Eric Lichtblau and James Risen and the Washington Post’s Dana Priest for revealing official secrets about the Bush administration’s use of warrantless wiretapping and CIA “black sites” (American Journalism Review, 10/11/06).

And indeed, for people who profess to revere the Constitution, many of today’s “constitutional conservatives” have a strange way of showing it. For instance, many “constitutionalists” in the Tea Party movement would repeal the 14th Amendment, because it confers automatic citizenship on anyone born in the U.S., as well as the 16th, for instituting a federal income tax, and the 17th, for establishing direct election of U.S. senators (San Jose Mercury News, 12/20/10).

Not that it’s wrong to scrutinize the constitutionality of government policies. On healthcare, there are serious questions about requiring citizens to buy a private commodity. (At this writing, two federal judges upheld the healthcare act’s constitutionality, while another has challenged it.) But over the past decade, many of the conservatives who complain about the lawlessness of the Obama administration have shown little interest in arguably more serious Bush-era breaches of the Constitution, including those that have been continued by the Obama White House.


Take the Bush administration’s “enhanced interrogations,” which involved water torture, sleep deprivation and other techniques traditionally considered torture under U.S. and international law. By any reasonable measure, torture violates the Fifth Amendment restriction on self-incrimination as well as the Eighth Amendment ban on cruel and unusual punishment. But “constitutional conservatives” have treated the Bush administration’s use of torture with silence or equivocation at best, applause at worst.

“Torture is not always impermissible,” wrote Charles Krauthammer (Weekly Standard, 12/5/05), arguing in a Washington Post column (5/1/09) that the Bush administration demonstrates that sometimes torture “works.”

Bill Kristol (Special Report, 8/26/09) made a similar anticonstitutional argument, defending cruel and unusual Bush-era practices because the CIA’s inspector general said they “clearly were very helpful.” Kristol also criticized Obama (Special Report, 4/16/09) for disavowing “the good faith efforts of a previous administration to protect us in ways that I think were entirely appropriate.”

George Will’s constitutional certainty on the healthcare act contrasts with his equivocation on waterboarding. After secret documents revealed that a key terrorism suspect had been waterboarded 183 times (ABC’s This Week, 8/30/09), Will’s central concern was that the documents had been made public, and his only qualms were expressed in terms of moral relativism: “Whether or not these techniques are immoral or how immoral they are surely depends on whether or not they work.” In his Washington Post column (4/30/09), Will argued that while most Americans would consider “enhanced interrogation” torture, they may be wrong—because it’s effective.

Fox News’ Bill O’Reilly (NYMag.com, 4/21/09) dismissed concerns over waterboarding and other banned Bush-era practices: “Most Americans understand, when life and death is there, you’ve got to do something more than the Army Field Manual.” His Fox colleague Sean Hannity (Hannity, 3/10/09) seemed to make almost a religious argument for waterboarding: “I don’t have any problem taking [a terrorism suspect’s] head, sticking it underwater and scaring the living daylights out of him and making him think we’re drowning him, and I’m a Christian.”

How far “down into the populace” does conservative support for torture go? Covering a focus group conducted by conservative pollster Frank Luntz during the 2008 Republican primaries, in which GOP voters were asked to rate their approval of candidates’ remarks on a mechanical dial, Time columnist Joe Klein was shocked by how pro-torture the participants were (Swampland, 11/29/07.) According to Klein, when candidate John McCain, a former victim of torture, expressed opposition to waterboarding, “the dials plummeted… about as low as you can go.”

And so it is with numerous constitutionally dubious policies, like the policy of indefinite detention without charge or trial, which has continued under the Obama administration in spite of the Sixth and 14th amendments’ guarantees of a speedy trial and due process of law. A Fox panel (Special Report with Brit Hume, 12/8/08) discussing Obama’s campaign promise to close Guantánamo and hold trials for some detainees, featured Krauthammer arguing, “We’re going to have to have a law which is going to allow indefinite detention,” to which the Weekly Standard’s Fred Barnes responded, “As Charles says, you have to pass a permanent detention law in the case of some of these guys.”

The “some of these guys” exception to the Bill of Rights has not yet been identified by “constitutional conservatives.”




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