Constitutional Consistency (Is it asking too much?)

Posted: February 20th, 2010 by Militant Libertarian

by Steven Horwitz, The Freeman

No one ever accused progressives and conservatives of being overly consistent about freedom.  After all, we classical liberals frequently say we want the State out of both the bedroom and the boardroom, in contrast to progressives and conservatives who seem only to care about one of the two.  Recently, this inconsistency has been particularly clear with respect to how each side views the U.S. Constitution.  It seems as though the group out of power suddenly comes to love the Constitution, while those with power tend to quickly forget any love they might have once had.  This dynamic can been seen in the left’s and right’s contrasting reactions to two events over the last decade.

After 9/11 a nearly unanimous Congress passed the Patriot Act, and the Bush administration began to implement a number of policies that strengthened the power of the executive and reduced the due-process rights of people accused of terrorist activities.  The response by many on the political left was quick and loud: These anti-terror policies were unconstitutional.  They violated long-standing central portions of the constitutional protections of the rights of the accused and were an attempt by the Bush administration to claim near-dictatorial powers.  These folks, rightly in my view, argued that even if the threat of terrorism were real, wartime concerns do not justify abandoning those constitutional protections.  If anything, that’s when they are most important.  Other goals, however desirable, do not trump constitutional rights.

On my own campus a group of my left-leaning colleagues formed a group called “Save Our Constitution” and even had a one-day teach-in on the various issues.  (I was a member of that group and participated in the teach-in.)  Suddenly the left was very interested, and rightly so, in defending that old piece of parchment.  The right, of course, argued that the terrorist threat meant that we could not afford to worry about constitutional niceties.  After all, democracy itself was under potential threat, so this was not the time for strict constructionism.

Progressives in Power

Fast forward to the last month or so.  Now progressives have control over both houses of Congress and the presidency.  Their power is checked only by the Supreme Court.  And in the recent Citizens United decision, the Court decided that the Constitution protects the right of associations of individuals, in the form of corporations, to express their views about political candidates at any point in the electoral process.  The decision was a powerful vindication of First Amendment  rights of free speech, overturning one of the worst pieces of the McCain-Feingold campaign-finance legislation.

Many of the very same progressives who were so interested in “saving our Constitution” and who argued that threats to democracy don’t override protections of individual rights, have suddenly forgotten all those ideas in their rush to condemn the decision.  Recognizing corporations’ freedom to run ads favoring or attacking a candidate has been interpreted in apocalyptic terms by many on the left.  (Corporations and unions still cannot directly finance campaigns.) Progressives see it as the beginning of the end of democracy, as the selling out of politics, and as further evidence of the destructive power of corporations.  Many have argued that the First Amendment doesn’t apply to corporations (although they seem to exempt newspaper and other media corporations from that claim), and others are proposing all kinds of constitutional amendments to carve out exceptions to the First Amendment.  In summary, when democracy is under threat, the Constitution doesn’t apply.

Or in other words, they are adopting the same kinds of arguments the defenders of the Bush administration made earlier, which the left rightly criticized.  And the new-found love of the Constitution on the part of many conservatives in the wake of Citizens United is equally inconsistent with the arguments they were making just a few years ago.

Higher Goals

Both left and right claim that their particular concerns are sufficient to ignore the plain text of the Constitution in order to achieve some higher goal.  But these dueling claims only serve to remind us that the whole point of having a constitution is that it should provide consistent protection for individual rights no matter who is in power or what the rationale is for weakening that protection.  Having a constitution is a way of trying to avoid these sorts of arguments over what “social goals” are more important than protecting our rights.  A constitution reminds us that no social goals are that important.

It does not matter whether the asserted threat is from corporations or terrorism, and as Will Wilkinson has noted, the threat of corporate power serves the same function for the left as the threat of terrorism does for the right: instilling fear in the populace so as to justify increases in State power.  No assertion of a threat requires that we sacrifice our rights.  That is the only consistently constitutional position.


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