many of the functions of the modern-day federal government, including Social Security and other social-service programs, were not envisioned by the framers, nor did the enumerated powers of the Congress specifically comprehend such programs. But neither do these federal roles violate a principle of our system or run counter to the prescient mindset of the founders.
Cooke reacts to this observation this way:
I hope I am not being unfair when I say that I detect a whiff of living constitutionalism in this passage — a tendency to subordinate “enumerated powers” to the subjectively imagined “principle of our system” or “prescient mindset of the founders.” The ultimate value of the rule of law is not that it entrenches the positions of men who are long dead but that it establishes the regulations by which governments may operate, outlines the political scheme for all to see, and short-circuits the temporary government’s capacity for caprice. If the authors believe that “the enumerated powers of the Congress” did not “specifically comprehend such programs” as Social Security — which, remember, is not justified by an amendment but by judicial reinterpretation — then they should be up in arms about it. I fail to see how one can acknowledge in one breath that a governing document that is the collective work of a generation of thinkers is being violated, and in the next say that that is what they would have wanted.
Actually, our argument is different than what Cooke presents. The fact that there exist programs created in the 20th century that our Federalist founders didn’t (and couldn’t possibly) envision doesn’t mean that those programs necessarily violate the system of government created by them. Gerson and I lay out in some detail the case for concluding that, “The government created in the late 18th century by the inhabitants of a coastal, agrarian republic was designed to accommodate the development of a more spacious and ambitious nation: an eventuality that many of the founders foresaw and embraced.”
As for the charge of embracing a “living Constitution”: It is one thing, and I believe quite a problematic thing, for judges to invent and create and impose on the public invented rights. But in the representative democracy the founders created, they certainly believed that within certain parameters the will of the people, ratified in election after election and by Congress after Congress, needed to be taken into account. And Social Security has been ratified in dozens of staggered elections (presidential, Senate, and House) over the course of most of the 20th century and all of the 21st century. No elected representative of any serious standing is arguing for the repeal of Social Security on constitutional grounds; and it hasn’t faced a serious constitutional challenge under either a liberal or a conservative-led Supreme Court in more than a half-century. Yet Cooke seems to believe conservatives should be “up in arms” about it and, I can only assume, energize their movement around an effort to largely dismantle, on constitutional grounds, the New Deal and more.
To help clarify what is, in truth, a pretty interesting and important philosophical discussion–how narrowly or broadly should the enumerated powers in the Constitution be interpreted–it would be instructive for Mr. Cooke to respond to some queries, perhaps starting with this one: Is Social Security unconstitutional? If he believes it is, does Cooke therefore believe conservatives and Republicans should run for elective office and base their governing agenda on repealing Social Security on the grounds that it qualifies as an assault on the Constitution? He seems to suggest they should.
In addition, what do Cooke and others, including so-called “constitutional conservatives” who praised his article, make of the fact that Ronald Reagan, the most important figure in the history of modern conservatism, praised Social Security and went out of his way to assure voters he had no intention of dismantling the New Deal?
In the 1964 speech that effectively launched his political career, Reagan, in describing conservatives, said, “we’re for a provision that destitution should not follow unemployment by reason of old age, and to that end we’ve accepted Social Security as a step toward meeting the problem.” And on April 20, 1983, Reagan signed a bill to preserve Social Security, saying, “This bill demonstrates for all time our nation’s ironclad commitment to Society Security.”
Does Cooke detect a “whiff of living constitutionalism” and a “tendency to subordinate ‘enumerated powers’” in Reagan’s words? Surely he must, since Reagan never challenged the constitutionality of Social Security and the New Deal and in fact affirmed them. Reagan, rather than being “up in arms” over Social Security, the New Deal, and much of the modern state, made his own inner peace with their constitutional legitimacy. Others should as well.
Mr. Cooke also makes this claim: “The federal government is able to do only what the Constitution permits it to do — and, until around 1913, the Constitution prohibited the federal government from doing almost everything.” I can’t help but note that even Thomas Jefferson, who was more skeptical of a strong federal authority than many others of the Founders, managed to conclude the Louisiana Purchase without amending the Constitution to permit so massive an exercise of federal power. The founders, from Washington through Monroe, presided over what at the time were massive changes in the scope and reach of the national government. That continued through the post-founding period to the Civil War–despite the fact that the Constitution was amended only twice during that period (in 1795, limiting suits against states; and in 1804, revising the electoral-college procedure). In addition, the claim that Abraham Lincoln believed the Constitution prohibited the federal government from doing “almost everything” is slightly bizarre. (See the Civil War, the suspension of the writ of habeas corpus, the transcontinental railroad, and the imposition of tariffs and a federal income tax for more.)
It’s worth pointing out, too, that as president James Madison signed the act establishing the Second National Bank. He had opposed the creation of the First National Bank on constitutional grounds but, in revising his views, Madison wrote this:
The charge of inconsistency between my objection to the constitutionality of such a bank in 1791, and my assent in 1817, turns on the question, how far legislative precedents, expounding the Constitution, ought to guide succeeding legislatures, and to overrule individual opinions.
… It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition –in one instance, indeed, with a positive ramification of it into a new state — and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which maybe added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive, under these circumstances, with an admission of the expediency, and almost necessity, of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention …
In other words, the conduct of elections that tacitly or explicitly endorse existing policy, and people’s decisions with the passage of time to rearrange their own lives in light of the law, all amount to a public ratification. “Madison asserted that legislation passed by Congress and carried out successfully with the approval of the people over a significant period of time sets a precedent of constitutional interpretation for future legislation,” is how one commentator put it. It’s worth recalling that Madison is not only one of the authors of the Federalist Papers, the greatest interpretative work of the Constitution; he is also widely regarded as the “father of the Constitution.” So his example ought to carry significant weight.
One other observation. In a 1981 speech (featured in this book), Senator Daniel Patrick Moynihan made this observation:
Perhaps the most important act of the Continental Congress was the Northwest Ordinance which provided a direct federal subsidy for education. Almost the first act of the Congress established by the present Constitution was to reaffirm this grant. A plaque on the Sub-Treasury on Wall Street commemorates both actions. This does not invalidate the view that the federal government ought not to exercise any responsibility, but it does make nonsense of the view that the Constitution – presumably because it does not mention the subject – somehow bars such an exercise.
Pace Charles C.W. Cooke, I do not think that virtually the entire modern state–including Social Security, Medicare, Medicaid, the National Institutes of Health, and so much more–is unconstitutional. But he and others like him apparently do, so they really should lay out what they realistically intend to do about it. And in doing so, they should explicitly state whether they consider Ronald Reagan, whom I consider to be among the handful of greatest presidents in our history, to have been an apostate when it comes to fidelity to the Constitution he swore to uphold.