Digital Commons @ Assumption University Political Science Department Faculty Works Political Science Department 2017 Conservatism's Constitutional Moment Greg Weiner Assumption College, [email protected] Follow this and additional works at: https://digitalcommons.assumption.edu/political-science-faculty Part of the Political Science Commons 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 34 modernagejournal.com Conservatism’s Constitutional Moment 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