The Unconstitutional Conservatives

Yahoo

2 days ago

Not too long ago, many Republicans proudly referred to themselves as 'constitutional conservatives.' They believed in the rule of law; in limiting the power of government, especially the federal government; in protecting individual liberty; and in checks and balances and the separation of powers. They opposed central planning and warned about emotions stirred up by the mob and the moment, believing, as the Founders did, that the role of government was to mediate rather than mirror popular passions. They recognized the importance of self-restraint and the need to cultivate public and private virtues. And they had reverence for the Constitution, less as a philosophical document than a procedural one, which articulated the rules of the road for American democracy.
When it came to judicial philosophy, 'constitutional conservatism' meant textualism, which prioritizes the plain meaning of the text in statutes and the Constitution. Justice Antonin Scalia excoriated outcome-based jurisprudence; judges should never prioritize their own desired outcomes, he warned, but should instead apply the text of the Constitution fairly. 'The main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law,' he said in 1988, 'is that the judges will mistake their own predilections for the law.'
One of the reasons Roe v. Wade was viewed as a travesty by conservatives is that they believed the 1973 Supreme Court decision twisted the Constitution to invent a 'right to privacy' in order to legalize abortion. The decision, they felt, was driven by a desired outcome rather than a rigorous analysis of legal precedent or constitutional text.
WHICH IS WHY it's hard to think of a more anti-conservative figure than President Donald Trump or a more anti-conservative movement than MAGA. Trump and his supporters evince a disdain for laws, procedures, and the Constitution. They want to empower the federal government in order to turn it into an instrument of brute force that can be used to reward allies and destroy opponents.
[Read: In Trump immigration cases, it's one thing in public, another in court]
Trump and his administration have abolished agencies and imposed sweeping tariffs even when they don't have the legal authority to do so. They are deporting people without due process. Top aides are floating the idea of suspending the writ of habeas corpus, one of the most important constitutional protections against unlawful detention. Judges, who are the target of threats from the president, fear for their safety. So do the very few Republicans who are willing to assert their independence from Trump.
In one of his first official acts, Trump granted clemency to more than 1,500 people charged in connection with the violent attack on the Capitol on January 6, 2021, including those convicted of seditious conspiracy. The president and his family are engaging in a level of corruption that was previously unfathomable. And he and his administration have shown no qualms about using the federal government to target private companies, law firms, and universities; suing news organizations for baseless reasons; and ordering criminal probes into former administration officials who criticized Trump.
The Trump administration is a thugocracy, and the Republican Party he controls supports him each step of the way. Almost every principle to which Republicans once professed fealty has been jettisoned. The party is now devoted to the abuse of power and to vengeance.
POLITICAL THEORISTS recognize that the governing approach of Trump and the GOP embodies the philosophy of Nietzsche and Machiavelli. It's all about the world of 'Anything goes' and 'Might makes right.' Laws and the Constitution are as malleable as hot wax; they can be reshaped as needed. Limited government has been traded for the Leviathan, and there are no constraints. The state has become a blunt-force instrument.
The significance of this shift can hardly be overstated. A party that formerly proclaimed allegiance to the Constitution and the rule of law, warned about the concentration and abuse of power, and championed virtue, restraint, and moral formation has been transmogrified. The Republican Party now stands for everything it once loathed.
[Peter Wehner: America's Mad King]
If this rot was confined to the GOP, it would be tragic but manageable. But Trump and the Republican Party control the levers of federal power. As a result, less than five months into Trump's second term, America is heading toward a form of authoritarianism.
We are still mid-story. The outcome is not ordained, and the courts are turning out to be, for the most part, a vital bulwark against Trumpism. The clashes will surely intensify as Trump rages against the storm. But as he does so, the resistance to him will grow and intensify too, and it will find expression in many different ways. The flame of liberty hasn't been extinguished quite yet.
Love of country is, as the historian Gertrude Himmelfarb said, an ennobling sentiment, worthy of our affections. And love of country demands that those who love America and her ideals stand up against a man and a party intent on destroying them.
*Illustration by Akshita Chandra / The Atlantic. Sources: The Nature Notes / Alamy; Getty
Article originally published at The Atlantic