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Are conservatives with Ginsburg or the Founders on the Constitution?

By Selwyn Duke
web posted February 20, 2012

When Ruth Bader Ginsburg said in Egypt recently that she "would not look to the U.S. Constitution if [she] were drafting a constitution in the year 2012," it was no surprise.  In that the Constitution militates against a nanny state and preserves a status quo, it is by its very nature a conservative document.  This is why liberals hate it so.  And, as the power of the left grows via their control over the culture, their teeth and contempt for the Constitution are displayed ever more (see Obama, Barack et al.).  But what of conservatives?

Some may say that I need not ask; as reflected in the rise of the Tea Party and Ron Paul, constitutionalism is all the rage.  In truth, though, while conservatives generally mean well, most just play at constitutionalism.

"What are you talking about, Duke?" you may ask.  "I believe in constitutional adherence!"  Well, let's conduct a little test.  What do you think about Social Security? 

Because, you know, it is unconstitutional.

This is where most conservatives will say, "Whoa, not so fast!  I paid into that program, and I want my money back!"  In response, I might point out that all but the Dependence Day class pay far too much to government, and we'll never be compensated commensurately.  But okay, sure, I can understand how you would want Uncle Sam to pay you in accordance with the contract made.  That, however, is not the point.  It is rather that constitutionalism is constitutionalism, and just as with freedom of speech or religion, it means nothing unless you adhere to it even when distasteful or inconvenient.

As to this, I remember a conservative poster at a rather well-known rightist website who wrote (I'm paraphrasing), "Constitutionalism is good sometimes."  Now, think about that for a moment.  Bearing in mind that the Constitution is the rulebook by which Americans are meant to govern themselves, imagine if a tennis player said, "Well, following the rules is good sometimes."

This is the attitude of every cheater who has ever lived.

It is also essentially the position taken by liberals.  They adhere to the Constitution sometimes – when it's convenient.  They're gaga over it when it accords with their agenda.  But the problem is that this is synonymous with making up your own rules.  After all, if I did so, I'd make up only rules I liked.  Thus, when I say I'll follow only the constitutional rules I like, I am, in essence, making up my own rules.

So while conservatives are correct when they bemoan the left's trampling of the Constitution, the problem is that they don't have clean hands.  If liberals are the spouse who viciously beats the kids, conservatives are the spouse who looks on, protests for a while, and then eventually becomes inured to the abuse. 

Another example pertains to the contraception mandate that is the big news presently.  Conservatives are protesting that Obama is striking a blow against freedom of religion, and I won't disagree.  What everyone misses, however, is that if we had preserved the right to freedom of association in the 1960s, we wouldn't have to worry about this unprecedented federal intrusion right now. 

I am, of course, talking about the universally held assumption that the government has a right to tell privately owned businesses how they may discriminate.  After all, we're arguing about whether religious entities should get a birth-control exemption, but what right does the government have controlling the contracts between the employers and employees in any business?  If it's the federal government and constitutional rights we're talking about, none whatsoever.

This is where I so often hear "But wait a second; such a model could lead to racial discrimination, and we can't allow that."  This is a very conservative response in that it accords with status quo ideology and social attitudes in our nation, and I've heard it from many conservatives.  But it again misses the point.  Either you believe in following our national rulebook or you don't – "sometimes" means cheating.

Of course, this isn't to say that a constitutionalist who despises unjust discrimination has no recourse.  There are three alternatives, actually:

  1. We can devolve anti-discrimination law to the states.
  2. We can pass a constitutional amendment giving the feds the power to legislate in this area.
  3. We can rely on social pressure (preferable): allow the small percentage of people who would discriminate unjustly to suffer the scorn and ostracism that will likely result.

In other words, if a problem has a solution, that solution can always be effected without constitutional trespass.  Because we lacked discipline and wanted immediate gratification, however, we just took a shortcut – the cheater's route.

And where are we because of it?  We spend billions of dollars on litigation, tearing ourselves apart with specious anti-discrimination lawsuits.  We had a girl sue the BSA because she wanted to be a Boy Scout, and an atheist took legal action because the organization references God in its pledge.  The government will force businesses to hire cross-dressers or Muslims wearing an eighth-century drape, and police and firefighter exams have been dumbed down based on the notion that if groups perform differently on a test, it is by definition discriminatory (of course, this is true, as a test's very purpose is to separate the qualified from the unqualified).  And now, the government feels it has a right to tell religious institutions that if they don't want to be exclusionary and serve only members of their own faith, they must violate their consciences or go out of business.

So there is a reason why we now have ObamaCare and all its demons, the NDAA, and more czars than a Russian history book.  There is a reason why we have Supreme Court justices who have contempt for the document that is supposed to be their guiding light and a president who wipes his feet on the Constitution as he goes where no statist has gone before: they are following a trajectory that the nation was set on a long, long time ago.  They simply represent the latest version of republican decline: anti-constitutionalism 9.0. 

As G.K. Chesterton observed almost 100 years ago, "The business of Progressives is to go on making mistakes.  The business of the Conservatives is to prevent the mistakes from being corrected."  When you don't correct mistakes, they lead to other mistakes.  And, should our republic still be limping along 25 years hence (doubtful), the "conservatives" of the day will have been inured to a whole new set of unconstitutional programs and laws.  They will be just a tad like contemporary European conservatives, who accept socialized medicine and abortion, and will be arguing about...well, it doesn't matter.  As long as conservatives continue being conservative instead of proactive and bold, they'll always be the caboose to the liberals' locomotive.  They'll always just be fighting against tomorrow's constitutional trespass – and to preserve today's. ESR

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