Progressives Suddenly Sound Like Constitutionalists

By Jay Cost

Monday, October 22, 2018

‘May you live in interesting times,” goes the old, double-edged Chinese proverb. And indeed we do. We live in the times of President Donald J. Trump, who has had a profound effect on all aspects of our political culture.

Trump has governed as conservatively as any president in the post-war era. His political instincts are decidedly toward the right on economic issues such as taxes and regulation. He has been thoroughly on the side of the Federalist Society with respect to judicial appointments. And while he has expressed no interest in entitlement reform, he also has no interest in expanding the social welfare state, which differentiates him from several former Republican presidents.

And yet unfortunately he has combined conservative governance with a uniquely low tone to presidential governance.

This has left many conservatives in a bit of a pickle. Many, such as myself, celebrate the policy achievements while criticizing the tone. But others seem so chagrined about the tone that they have underestimated or completely rejected the policy achievements. An interesting development, as the Chinese proverb-writer may say.

Equally interesting to me is the newfound respect among progressives for the virtues of constitutionalism. Mind you, these days, progressives are criticizing the Constitution as much as they ever have. But listen a little more closely, and you’ll hear them singing a couple of tunes from the old Founding hymnal.

I was recently on a panel with a perfectly nice, smart, and earnest progressive academic who complained that Congress is no longer serving the “checks and balance” function outlined in Federalist No. 51. Instead, this person argued, Congress has just acceded to the dictates of the executive branch. This was cited as a reason to vote Democratic in the upcoming midterm.

Fair enough. I certainly agree with the notion that uniform party governance tends to undermine the institutional rivalries that the Constitution establishes. But since at least the 1880s, progressives have been calling for the destruction of these institutional barriers. Checks and balances, we have been told since Woodrow Wilson’s tenure at Princeton, inhibit the government from realizing the national interest. They are an artifact of a long-gone era, a vestigial organ from the days when the American people were separated by vast distances, religion, and even language. Today, we are one people, and our government is supposed to reflect that.

This, at any rate, was Wilson’s idea. And up through November 6, 2016, it was the progressive idea, too, but no longer. Interesting!

Moreover, when I read progressives’ laments about the state of our national discourse, I notice a disdain for public opinion that is awfully reminiscent of the Founders’ anxieties about majority rule. That is not to say that they are anti-majoritarian. After all, progressives have lately taken to decrying the anti-democratic nature of the Senate. But how much do progressives want popular rule, really?

To hear the progressives run through the math, Americans can be divided into a distinct set of categories. There are, to borrow Hillary Clinton’s phrase, the deplorables — those who vote Republican because they are really, truly bad people, such as racists, Islamophobes, and homophobes. Then there are, to borrow Barack Obama’s phrase, the bitter clingers — those who vote Republican because of displaced aggression or false consciousness. Then there are the rich — those who vote and contribute to the Republican party because they get special benefits. Then there is the wide swath of people who refuse to vote because they are not engaged in politics, a sufficiently large enough number to mention any time Democrats lose an election. Next, there are earnest, public-spirited Democrats. And maybe, if progressives are in a charitable mood, there are some public-spirited Republicans, too, but they are often derided as radicals who do not believe the government should do much of anything.

So let me ask, if this is how you see the composition of the American electorate, would you actually want majority rule? It seems to me that this is exactly the kind of public that the Founders were worried about. Once more, it is interesting to listen to progressives describe the citizenry.

I doubt we shall see any “strange new respect” coming from progressives for our constitutional regime. Indeed, modern progressivism’s defining methodology is that it wants to do away with much of our old system of governance. This is as central to the ideology as the desire to improve the welfare of the common man (who were the primary concern of the Jacksonian Democrats, who were extremely sensitive to violations of the constitutional order). Rather, I expect progressives, for now, will not connect the dots between their current frustrations with being out of power and the virtues of a constitutional system that limits the powers of majorities. But once return to political power, they will declare that the perfect order has once again arrived.

Nevertheless, it is interesting to listen to them express skepticism about centralized political power and doubt the intrinsic wisdom and virtue of the masses.