Tuesday, April 22, 2008

Conservativsm and Constitutionalism

Second in a series of articles intended to define conservatism.

George asked me to write about the conservatives and constitutionalists. So I’ll take that up before I take up libertarianism.

First we must say that there are two types of constitutionalists. The first type could be called hyper textualists. They operate in a historical vacuum as if there were no history or jurors prudence. There is only the text. The other type would see the text in light of understood history and jurors prudence. This would include the English common law tradition. Those who hold to this latter type of constitutionalism, would say, for example, if a president acts in a way that is consistent with past court rulings, he is within his rights. This would hold true even if some disagree with those rulings. Both groups however, have high judicial standards. So both would object to blatantly activist rulings like Roe vs. Wade which make up law in a total vacuum. Such rulings make the very existence of a constitution worthless.

A constitution, when properly understood is a limiting document. It prevents people from doing whatever they please. Such a document is the underlying foundation of the rule of law. Without such a foundational document you really can’t have the rule of law. A constitution is more than a framework or structure for governance. It places certain things off limits. For example, the Second Amendment to the U.S. Constitution prevents government from outlawing private ownership of firearms. The authors of a constitution embody those ideas they consider to be sacred and non-negotiable.

Conservatives will be constitutionalists of some type. Conservatives are about conserving personal liberty and the unique American culture. The U. S. Constitution, when preserved by originalist judges, as well as a faithful congress and president, serves as a mechanism to preserve the ideals of personal liberty and opportunity.

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