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Conservatism's Constitutional Moment

Greg Weiner Assumption College, [email protected]

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Recommended Citation Weiner, Greg. "Conservatism's Constitutional Moment." Modern Age vol. 59 no. 2 (Spring 2017): 33-42. https://home.isi.org/conservatism's-constitutional-moment.

This Article is brought to you for free and open access by the Political Science Department at Digital Commons @ Assumption University. It has been accepted for inclusion in Political Science Department Faculty Works by an authorized administrator of Digital Commons @ Assumption University. For more information, please contact [email protected]. BEING CONSERVATIVE IN THE YEAR OF TRUMP

Will Republicans on Capitol Hill reclaim their right—and responsibility—to legislate?

Conservatism’s Constitutional Moment Greg Weiner

he essential question confronting American conservatism is what, T precisely, it aspires to conserve. The ascension of Donald J. Trump not just to the Oval Office but also to the leadership of America’s traditionally conservative party compels a serious confrontation of that question. He is not conservative in the senses in which the term has typically been under- stood. He is opposed to many dimensions of economic freedom, resists entitlement reform, and seems at best unaware of notions of constitutional limitation.

But what in the age of Trumpism—which constitutionalism, conservatives can emulate is, if nothing else, an age of upheaval—are the Framers’ tradition of conserving reform conservatives to conserve? The answer must that binds generations. Despite the common be the constitutional regime underlying policy belief that the American regime was cast in disputes that otherwise draw all emphasis into the crucible of abstract philosophy, the Fram- their impetuous vortex. Policy disputes are ers at Philadelphia in fact carefully adapted transient; the constitutional principles that long-standing colonial forms. James Madison frame and shape them endure. By focusing on in particular grasped the idea of a ­constitution

Greg Weiner is assistant professor of political science at Assumption College and the author of American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan.

modernagejournal.com 33 Modern Age • Spring 2017 as an intergenerational compact through regime against a creeping parliamentarism which the dead could obligate the living. under which party loyalties run roughshod By any conventional measure, the signs over institutional forms. Conservatives will for constitutionalism are inauspicious. A not deserve power if they fail it. single party controls all elective mechanisms of government, and its appointees may soon hold a working majority on the Supreme Giving the legislature its due Court as well. The president is a populist interested in maintaining an unmediated The separation of powers is the hinge of relationship with the public. Congressional this test. It is fitting that the concept itself majorities have historically lain supine before as received in the United States was not an presidents of their own party. Yet as Geof- innovation of theoretical abstraction but frey Vaughan, Daniel Stid, and others have rather a product of political necessity: the argued, one benefit of the Trump presidency sharing of power between deeply rooted may be a congressional revival. There are social classes in the mother country, a intriguing reasons to believe this is actu- mechanism whose theoretical advantages ally conservatism’s constitutional moment. Montesquieu—the most quoted philoso- Single-party rule in which members of Con- pher of the founding period, Donald Lutz gress are known to disagree substantively found—noticed and most fully developed. with the president on major issues sets up a The separation of powers, in turn, assumes unique constitutional experiment that will the legislature’s priority in setting policy. test, without the obfuscating variable of par- Even by way of defending executive energy tisan opposition, the Republican commit- in Federalist No. 70, Alexander Hamilton ment to constitutional process. That is not specifies that the president should imple- to say congressional Republicans will always ment with speed precisely because the legis- oppose the president, and still less that they lature has first decided with deliberation. should seek reasons to. Where they agree, James Madison, later at war with Hamilton collaboration is appropriate. Where Trump’s over the extent of presidential authority in policy agenda is vague, as Yuval Levin has the Pacificus-Helvidius debates, writes: “The perceptively noted, they can inform it. But natural province of the executive magistrate even in cooperation, they can insist on a is to execute laws, as that of the legislature is leading role for Congress. In opposition, to make laws. All his acts therefore, properly they should especially do so. executive, must presuppose the existence of This is not to say that all Republicans are the laws to be executed.” conservative, or that all conservatives are To be sure, Federalist No. 73 praises the Republican. Neither is the case. But conserv- president’s veto as “an additional security ing Democrats are increasingly rare. A pres- against the enactment of improper laws. It ervation of conservatism as a philosophical establishes a salutary check upon the legisla- force depends on a Republican Party willing tive body, calculated to guard the commu- to mount a moral defense of it. Republicans nity against the effects of faction, precipi- have both an opportunity and a responsi- tancy, or of any impulse unfriendly to the bility to demonstrate that their rhetorical public good, which may happen to influence commitment to constitutionalism and not a majority of that body.” The suggestion is merely to policy preferences or, worse, power of a presidency that serves as an occasional is meaningful. This is the clearest test in gen- break on the impulses of the legislature. The erations of the endurance of the Philadelphia practice is now reversed. The contemporary

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So much for congressional supremacy assumption is of a presidential regime the the Club for Growth and suddenly of the Congress periodically checks. school of protectionism, is reported to have It too rarely does even that much. Even in announced summarily to House Republican explicit opposition, for example, a Republican whips that they now belonged to the party of Congress did not answer President Obama’s Donald Trump, not of Ronald Reagan. In a executive unilateralism on immigration with report of the incident in The Hill, there is no legislative retaliation, for which its tools are record of dissent, only of astonishment. ample. Members asked the courts to retali- This may reflect lingering wonder at ate for them. (A statement from Speaker Trump’s ascent, but an initial reply—more Paul Ryan’s office offered the breathless if on a constitutional one presently—might anticlimactic promise that “the House will have noted that House Republicans garnered take an unprecedented step to stop President a three-million-vote majority in ballots cast Obama’s executive overreach. That’s right: In for Congress, as against Trump’s almost the coming weeks, the House will vote on three-million‒vote deficit in the popular filing an amicus brief.”) Congress was list- vote for president. Trump wields a superior less, other than oratorically, when Obama mandate only if it is measured in the incre- used regulation to rewrite sections of the dulity gap that separated expectations from Affordable Care Act and unapologetically results in his victory. acknowledged that he was doing so because To be sure, that is not to say that the pub- Republicans controlled Congress. lic concerns into which Trump tapped are It may, ironically, take a president of their wholly to be dismissed on the grounds of a own party with whom Congress disagrees free-market dogmatism ill-suited to the tem- on a variety of important issues to restore perament and perhaps the economics of the the tension between branches that the sepa- moment. But there is a difference between ration of powers assumes. The first shot in what Walter Lippmann called a “directed” what could be this emergent battle was fired and a “compensated” economy, the former of a week after Election Day, when Trump which seeks to rearrange markets to political economic adviser Stephen Moore, late of purposes and the latter of which recognizes,

modernagejournal.com 35 Modern Age • Spring 2017 and thus seeks to insure individuals against, endorse Trump’s $1 trillion infrastructure their shortcomings. As Lippmann noted, even plan dictated not by actual needs for major Franklin Roosevelt abandoned his aspirations projects but rather by Keynesian economics. to direct the economy. Trump seems to har- An assumption that the market cannot build bor such aspirations once more. The middle the Hoover Dam is one thing. It is entirely ground that congressional Republicans can another to say that economic growth is best strike is a robust, if market-oriented, system served by extracting funds from the economy of social insurance that recognizes that there through taxation and public borrowing, then is no better system of distributing goods and pooling them for centralized political redi- services than markets, but they are not always rection. On Trump’s signature issue of immi- ideal means of meeting all material needs. gration, meanwhile, conservatism is commit- In any event, some disagreements persist, ted to national sovereignty and thus rejects and now both sides face a clarifying moment. the idea that to preserve borders is inherently Do Republicans on Capitol Hill intend to chauvinistic. Still, there are ample prudential pay Trump deference on policy in those areas and philosophical reasons to oppose a border where they disagree, or reclaim their right— wall and massive deportations. This opposi- and responsibility—to legislate? The question tion is already long recorded among at least would be obscured if they agreed with him some Republicans on Capitol Hill. across the board on policy, since they would Of course, elections realign beliefs. They appear simply to be falling in line. But they do are supposed to. Moreover, presidents have not. Trump is a protectionist who thinks the inherent rhetorical advantages in the pro- power of government is appropriately used to motion of policy. It would be little surprise dictate where goods are made, bought, and if some congressional Republicans came sold. Indeed, one of his first achievements around to Trumpism. Something would be as president-elect was to pressure a private amiss if none did. Nor is there any call for company to locate manufacturing jobs where gratuitous opposition where conservatives he felt they should be rather than where the can more constructively inform Trump’s diffuse preferences of buyers and sellers in agenda than oppose it. Regardless, the con- the market dictated. Congressional conserva- ditions are ripe for deep differences of opin- tives, by contrast, have long campaigned on ion between the White House and Capitol a philosophical commitment to open trade Hill on at least some issues. that is rooted politically—economic liberty Since the differences are not obscured by is a bulwark against political tyranny, in no partisan disputes, it is likelier that their terms small part because a government empowered can be understood to be constitutional. Had to limit commercial freedom has the capacity Trump faced a Democratic Congress, or to limit other kinds too—as well as economi- a President Clinton a Republican one, the cally. Trump’s voters depend on affordable constitutional differences would have been imported goods, and what wages they stand impossible to see for the partisan ones. The to gain from the manufacturing jobs he situation of single-party control, however, alleges he has the power to restore would not accentuates the constitutional dynamics. begin to offset the inflation they would face Even if congressional Republicans stand up from the trade wars he certainly has the abil- for Congress’s authority solely for the sake ity to spark. of preserving their power to pursue policies There are indications of other disagree- in which they believe, rather than high con- ments. It is difficult to see how the party stitutional principle, they will be operating that opposed the Obama stimulus can on the motive of ambition that Madison

36 modernagejournal.com Conservatism’s Constitutional Moment assumes will drive the separation of pow- The same drive is supposed to motivate ers. Power might explain their motives, but Congress. Senators and representatives are partisanship would not. And if power is the not presumed to want the job if not for point, constitutionalism prevails. the power it confers. Madison, writing in The Federalistat a time predating a capital with imperial pretensions and a Congress Dusting offThe Federalist Papers with material inducements, can imagine no other. Perhaps we can. Glamor attaches to Thus, what would have been the constitu- the national government, at least to elective tional response to Moore’s announcement or high appointive office under it. So does that Trump had displaced Reagan? Whether remuneration—if not for the job itself, then House Republicans belong to the party of for the career options that follow. Reagan or the party of Trump, they first The supreme irony of congressional abdi- belong to the institution of Congress. They cation is that Congress’s glamor derives from do not answer to presidents; they are, on the aura of power, which can be maintained the contrary, duty-bound constitutionally to only by surrendering its substance. In the resist attempts to enlarge executive author- pursuit of reelection, members have divested ity beyond its proper bounds. The political themselves of the authority that makes theory of the Constitution assumes they will. reelection worthwhile. They have delegated It consequently does not recognize political broad swaths of it to the executive in ways party and arguably assumes its absence: in that maintain what we might call Govern- other words, that institutional interests will ment by Press Release: the ability to proclaim trump ideological ones. broad goals while carping about the specific Federalist No. 51 presumes this when it exercises of authority they require. In other assumes institutional loyalty: not merely cases, members of Congress conclude that that each branch will defend itself but also their political success is aligned with that of that individual members of each branch will a president of their party, such that marching defend themselves. Institutional loyalty, on in lockstep behind his authority and agenda this understanding, is not altruistic. The serves their mutual interests. The permanent “ambition” that “must be made to counteract campaign for the congressional majority, ambition,” according to Federalist No. 51, is similarly, entails either capitulation to the personal, and the ambition is the exercise of president or obstruction of him, depending power by political man. George W. Carey, on the partisan circumstances. a frequent contributor to these pages, used The consequent question is what good to illustrate the point in this way: suppose either reelection or the majority are since a presidential candidate who, driven solely they do not occasion the exercise of power. by a private lust for the mansion at 1600 More charitably, the common assump- Pennsylvania Avenue, fleet of jets, and bud- tion is that Congress does not stand up get for state dinners, bargains his authority for itself because it is burdened with a to Congress in exchange for a mess of elec- collective-action problem by which no indi- toral support. That is difficult to imagine vidual will incur the concentrated costs of because we take it for granted that power is defending Congress because the benefits of what motivates presidents: we hope for good doing so are diffuse. But any body of any purposes, perhaps for ill, but power nonethe- size faces the same problem, and as late as less. They consequently jealously guard the 1887 Woodrow Wilson was complaining office’s authority. of decades of congressional ascendancy in

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American politics, collective-action dilem- al’s willingness to invest in a business might mas notwithstanding. As Jeffrey K. Tulis be affected by the knowledge that a single has noted, the collective-action explanation authority, acting through the person of the cannot account for these long stretches of president, can—without any balancing congressional dominance. authority—exert pressure that determines The unique situation in which Republi- where it locates its manufacturing.) cans now find themselves—of Trump’s party The concentration of powers in a single yet, on substantial issues, opposing him— voice also presumes the desirability, not to clarifies these issues. They can restore the say possibility, of a unified national will in operation of the power motive in legislative a nation of 319 million people. Congress, politics. Defending their preferences against because of its multiplicity and its necessary a president of their own party requires mak- parochialism, is better positioned institu- ing a case for institutional propriety in addi- tionally to register the subtlety and variety tion to policy. If the question is simply the of views in a diverse and extensive republic. latter, Trump, with his demagogic tenden- Trump’s voice, like that of any president, is cies, will have the upper hand. A clarifying necessarily binary, operating on behalf of conversation first needs to occur about the those who agree with him. Those who do not proper division of constitutional labor. agree are on the outs, often for the fullness of a four-year term. Congress, by contrast, is far abler to represent the multifarious spectrum The dangers of “presentism” of American political beliefs. The legislative branch is more sedate and Such a conversation demands a capacity to deliberate in decision making than the exec- articulate why an understanding of consti- utive as well. It is designed to be. Bicameral- tutionalism, starting with the separation ism requires two proverbial keys to launch of powers, matters. In Federalist No. 47, a missile. Initially, Madison reminds us, the Madison strikingly calls the combination House and Senate were differently consti- of powers “the very definition of tyranny,” tuted to complicate combinations; even now, apparently regardless of how the powers are their distinct cultures make cooperation at exercised. He is influenced by Montesquieu’s least somewhat more challenging than it understanding that “political liberty in a would otherwise be. The legislative process citizen is that tranquility of spirit which entails compromise and consensus. It takes comes from the opinion each one has of his time, which enables passions to dissipate security.” In a regime of blended powers, in and reason to take hold. The Senate plays which a single person or body wields the an especially important role in ensuring that actuality or potential of arbitrary author- the “cool and deliberate sense of the com- ity, no one can be confident of his security munity . . . ultimately prevail[s]” rather than because no one can be sure what the sover- the impulsive rule of “irregular passion[s].” eign will do next. For President Trump to be Congressional primacy is, in this sense, the citizens’ “voice” in a regime of function- the appropriate vehicle for republican govern- ally combined authorities would so empower ment, for the deliberate self-rule of political him. Even his benevolent exercise of them man. Congress is a forum in which individu- would disrupt the tranquility of a thought- als cannot demand all they want: to get some, ful citizen. (Tranquility is one condition for they must give some. It is a place where, as investment, among other things. It is not too Tocqueville understood, private and public far a stretch to wonder whether an individu- goods converge, where personal participation

38 modernagejournal.com Conservatism’s Constitutional Moment in the public good is meaningful because this of presidents: “When occasions present both are maintained. The personal is not themselves, in which the interests of the wholly absorbed in the political, but neither people are at variance with their inclinations, is the public wholly subsumed in the selfish. it is the duty of the persons whom they have It is not this way in presidential politics. appointed, to be the guardians of those inter- To the limited extent to which presidents ests; to withstand the temporary delusion, in can claim to speak for the people, it is the order to give them time and opportunity for people as a mass movement and homoge- more cool and sedate reflection.” Trump’s neous force, not as individuals maintain- apparent unwillingness to play this part ing their distinct identities and ambitions. makes the Senate’s cooling function all the When combined with a personality cult, more important. wholesale presidentialism entails an abdica- Constitutionalism matters for other rea- tion of the individual to a parental figure sons that should appeal to conservatism to the whose locutions have emulated his pre- extent it actually aspires to conserve. The con- decessor’s obsessive use of the first-person stitutional regime is the work of generations. singular: “I am the only one who can make A growing body of literature, much of it lean- America great again!” “I alone can fix it.” “I ing libertarian, holds that the Constitution am your voice.” is binding because it is good for us here and In the person of a president, as in the now. Madison had warned of “the hazards teeth of populist movements, decisions can and difficulties incident to [constitutional] be made on impulse. This is true of any pres- experiments, and of the great imprudence ident, but especially of a populist one. (That of unnecessarily multiplying them,” but on Trump insists on maintaining his tweet- contemporary libertarian accounts, constitu- ing habit—using his personal account for, tional experiments are an eternal recurrence. among other purposes, taunting his media Randy Barnett, for example, argues that laws critics—suggests impulsivity is a personality can “bind in conscience” only to the extent trait he has yet to tame.) Presidential deci- that they can be certified to be just. sions are, in a sense, antipolitical: the work of Conservatism is incidental to these a single, undifferentiated “voice,” in Trump’s accounts, or rather coincidental. It is pure formulation. There is no need for conversa- happenstance that the thing that is good for tion or trade-offs. us today existed in the past and therefore Legislative primacy as part of a system of ought to be conserved. If the good Consti- separated powers contributes to another, and tution or just laws did not originate behind related, conservative goal: the diffusion of us, we would be compelled to scan the power. It prevents a single authority, in this horizon in search of them. On this model, case the president, from either channeling or progressivism might easily be exchanged for acting on mere will. This is only aggravated conservatism; nothing morally commends by the phenomenon of a president operating the one over the other. Better put, the model as a tribune of the people and concentrating is neither, for conservatism locates substan- the general will into a singularity. A president tive value in custom, while progressivism’s acting alone is powerful enough; a president method is inherently focused on the future. powered by a public will for which he alone The libertarian method might more aptly alleges the moral authority to speak is too be described not as conservatism or as pro- much power to concentrate on any one head. gressivism but rather as presentism, and it Trump seems determined to stoke public will not succeed as a brief for constitutional passions. Federalist No. 71, by contrast, says obligation. If the terms of the conversation

modernagejournal.com 39 Modern Age • Spring 2017 are what works today, Americans will rea- few devices that are not traceable to earlier sonably ask why a 230-year-old document colonial forms. “Experience must be our only should inhibit their contemporary policy guide,” John Dickinson had said at Philadel- preferences. If, they will wonder, the Con- phia. “Reason may mislead us.” In that vein, stitution straitjackets us—inhibiting, for while Hamilton speaks in Federalist No. 1 of instance, the immediate accomplishment forming a government based on “reflection of the Trump agenda—and if the criterion and choice,” that reference is to the process of wisdom is what suits us today, why not of ratification, not the crafting of the regime unshackle ourselves? There are current and itself. With respect to the latter, in Federalist self-interested reasons not to, of course: No. 15, Hamilton calls experience “that best immediate and impulsive self-government oracle of wisdom,” whereas Madison, in Fed- often does not serve the public’s own good. eralist No. 52, urges his readers to “consult Still, an argument rooted in the present is experience, the guide that ought always to be necessarily hobbled in justifying a document followed whenever it can be found.” written so distantly in the past. Similarly, when Jefferson absurdly By contrast, conservatism on the model proposed that no law endure longer than theorized by Edmund Burke and restored to nineteen years, which his demographic the American mind by the likes of Russell tables told him was the average span of a Kirk and William F. Buckley can explain generation, Madison responded that while that obligation. It accords moral value to it was true the earth belonged to the living, conservation. That is partly because con- “the improvements made by the dead form a servatism, recognizing the limits of human charge against the living who take the ben- reason, prefers concrete experience—Burke’s efit of them. This charge can no otherwise “collected reason of ages”—to instant and be satisfied than by executing the will of the abstract reflection. It is, in this sense, better dead accompanying the improvements.” The for us now to pay due respect to the past. Framers so understood themselves. James But, more important, conservatism regards Wilson thus cautioned the Philadelphia Con- custom as authoritative because society is, as vention that it was “providing a Constitution Burke said, a contract between the dead, the for future generations, and not merely for living, and those to be born. Burke conceived the peculiar circumstances of the moment.” of liberties as an “entailed inheritance,” a (Wilson, protesting the colonial authority metaphor that “furnishes a sure principle of of Parliament in 1774, had similarly spoken conservation, and a sure principle of trans- intergenerationally in proclaiming that the mission; without at all excluding a principle Americans would, rather than surrendering of improvement.” their rights, “leave our posterity as free as our The Framers, to be sure, were not ancestors left us.”) Burkeans. But neither were they presentists. Among the striking facts of Trump’s vic- An American myth, a sort of ignoble lie, tory is his wholesale routing of the conserva- holds that our regime sprang forth from tive elite, virtually all of which was arrayed Philadelphia in the manner in which Burke against him. One reason may have been that satirized the revolutionary French Constitu- the elite spoke substantially in policy posi- tion: “ready made and ready armed, mature tions, which, being transient by nature, are in its birth, a perfect goddess of wisdom and vulnerable to capture. The moral obligation of war, hammered by our blacksmith mid- of intergenerationality, the philosophical wives out of the brain of Jupiter himself.” In core of conservative argument, offers more fact, the American Constitution contains enduring and binding value. Yet conserva-

40 modernagejournal.com Conservatism’s Constitutional Moment tives are less accustomed recently to making Our Fourth of July rhetoric notwith- this case in conserving terms. standing, Americans are a more naturally Congressional Republicans, or at least conserving than a revolutionary people. their leadership, seem aware of the moral Patriotism is that: it is not a celebration of importance of intergenerationality. Speaker contemporary interest or of a future to be Ryan admonished candidate Trump that he conquered. It is an essentially backward- had “inherited” the party of Lincoln and looking virtue, one rooted in shared history. Reagan. Trump, however, replied, via Twit- Our legendary, critics claim excessive, rever- ter, in terms that suggested an awareness ence for the Constitution arises largely from only of the now: “Wrong, I didn’t inherit it, a sense of obligation and deference to cus- I won it with millions of voters!” That all-is- tom, combined with a duty to generations now mentality cannot be true of a political to come, not from an immediate apprecia- party that has existed for more than 160 tion of constitutional excellence. An appeal years. If the Republican Party belongs to to that sense can persuade. But the appeal Trump in the same manner as a Midtown must be made. high-rise, can he demolish it? Would it be his prerogative to remodel it by swapping out its fundamental principles while retaining its Will Congress exert its prerogatives? brand name? The Burkean answer is that he cannot: debts are owed, to Lincoln, to Congressional Republicans must therefore Coolidge, to Taft, to Dirksen, to Goldwater, argue that policymaking is a prerogative to Reagan, and, yes, in time, to Trump—but belonging to them. They are in no position to also to future generations to whom the work ace Trump out. The regime has passed pure of those statesmen must be transmitted. congressional supremacy by. Madison, assent- If this is true of a party, it is far truer ing to the constitutionality of the national of a constitution. The constitutional inheri- bank whose legitimacy he once bitterly tance is not merely a gift to be expended opposed, said enduring practice ratified by or consumed; it is a responsibility to be the people acting through all three branches stewarded. This sense of intergenerational of government could settle—he seems really obligation—debts to the past and future—is to have meant “alter”—constitutional mean- the most solid and powerful grounding for ing. This need not scandalize; it is no more originalism and respect for constitutional than Burkean prescription, the idea that form. In his introduction to the Liberty long possession creates a rightful title. It is Fund edition of Burke’s Reflections, Francis constitutionalism as a heavy anchor in deep Canavan, noting Hume’s observation that water, not actually tethered to the bottom but “human society is in perpetual flux,” writes: exerting sufficient drag that any motion is “In this everlasting continuity, which secures imperceptibly slow. The motion in the direc- that the human race shall never be wholly tion of the presidency is now undeniable. A old or wholly new, lies the guarantee for the regime in which the president is at least an existence of civilization.” We, too, stand on equal partner in policymaking is here to stay. a continuum with our founders, as they did But that means Congress has at least an equal with their ancestors. We are free to modify place to claim as well, in addition to some their work, to be sure, but should do so mod- authorities—taxation, declaring war, appro- estly and reverently. We owe this both to priating funds—that are clearly its own. those from whom we inherited it and those If the vagueness of Trump’s policy posi- to whom we will pass it down. tions provides an opening for Congress to fill

modernagejournal.com 41 Modern Age • Spring 2017 in the details, so does the unconservatism of ful person expose himself to the indignities many of the positions he has specified. There and costs of campaigning, interrupt a career are voices of constitutional independence that might otherwise have been lucrative and in both chambers: Ben Sasse in the Senate, often already was, bear separation from fam- Justin Amash in the House. Ryan may be ily and the other burdens of office, merely another: he has, for example, championed to serve as a handmaiden to presidents or, Medicare reform. The president’s apologists at best, a safety brake on their behavior? say that, given that Trump was not elected The former smacks of the hangers-on at a on this issue, it should not be pressed. Com- medieval court. It was the sort of behavior mentator Ann Coulter, for one, suggested that instantaneously normalized Trump, as that if Ryan wants to reform Medicare, he in then-RNC chair Reince Priebus’s declara- should run for the White House. This is tion to ABC’s George Stephanopoulos that exactly why Ryan should press the issue, if a Trump victory would not split the party only as a matter of constitutional instruc- because “winning is the antidote to a lot of tion. Trump can veto a Medicare bill. He has things.” that power, and was elected to wield it. Let it By reputation, Ryan and his Senate coun- be seen that constitutional conflict will not terpart, Mitch McConnell, are not courtiers. sink the republic. It may help resurrect it. Between their Reaganism and Trump’s There will also be tests where members Trumpism probably lies a new approach to of Congress do agree with the president. conservative policy. But conservatism must F. H. Buckley, a legal scholar and Trump ultimately be about Madisonianism. If so, supporter, proposed that President Trump’s the question is how self-conscious they are Department of Education emulate President about what conservatism aspires to conserve. Obama’s in using “Dear Colleague” letters, The questions confronting conservatism for instance. The Obama Education Depart- demand a return to first constitutional ment used these to push its diversity agenda; principles, and it falls to these congressional Buckley argues that the Trump administra- leaders to articulate them. That makes this tion should use them to push viewpoint the conservative constitutional moment. diversity. Yet as Peter Lawler has observed, if Will constitutional conversation be administrative imposition is constitutionally compelling politically? Will the voters care flawed in one case, as congressional Repub- whether a policy is of Congress born, so licans correctly argued it was, it is flawed in long as its substance is to their liking? If not, the other. Here, too, Congress must stand Madison might wonder of the Americans in for its prerogatives. 2016 what he did of the ancient Greeks in The great question pertains less to the Federalist No. 38: Why would a people so Sasses and Amashes, or to the Ryans, than jealous of their liberty be driven to “consider to those who disagree with Trump on policy one illustrious citizen [Solon or Lycurgus] but have not yet articulated a constitutional as a more eligible depository of the fortunes vision of Congress’s role. This moment is of themselves and their posterity, than a their test. If Congress is prostrate now, select body of citizens, from whose common Republicans will have no claim to consti- deliberations more wisdom, as well as more tutionalism. Nor would they have any title safety, might have been expected?” Trump’s to authority, for their only claim to hold supporters claimed they wanted constitu- it would be to have emptied it of content. tional restoration. This is their constitutional Voters would be entitled to inquire into their moment too. motives. Why would an otherwise success-

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