Yes, Constitutional Conservatives Are Radicals

This morning Brother Benen looked at a proposal by Steve King to strip the federal judiciary of jurisdiction over any case involving marriage and noted its provenance in prior right-wing court-stripping measures. But he also suggested such advocacy ought to debar King from calling himself a “constitutional conservative.”

Whatever one thinks of marriage equality, court-stripping is itself ridiculous. The constitutional principles of “separation of powers” hasn’t disappeared just yet, so the idea that the legislative branch will dictate to the courts what kind of cases judges are allowed to hear is more than a little crazy – it undermines the very idea of an independent judiciary.

And it sure as heck isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – King and his cohorts want to adjudicate from the legislature.

I think a clarification is appropriate here. People like King use the modifier “constitutional” before “conservative” to indicate that they are not interested simply in opposing change or in going back to very recent public policies. Their eyes are fixed on a distant vision of the perfect governing order that they believe the Founders spelled out before it was ruined by courts and legislators and presidents alike. And it certainly does not include the right of final judicial review as understood by the rest of us. And so their expedient is court-stripping schemes which they believe help restore the proper constitutional order, or at least prevent current disorders from getting worse.

Just as “constitutional conservatives” tend to believe that absolute property rights and even fetal rights were embedded in the Constitution, never to be removed without an explicit amendment, they believe in an eternal scheme of states’ rights that would most definitely include all matters related to marriage. So in their minds, that eternal scheme, not recent precedents, in what defines “conservatism,” and thus the most radical measures are justified to bring back the “Constitution” as they understand it.

Of course constitutional conservatives are radicals. But many of them believe they are fighting for a governing model quite literally handed down by God Almighty, who intended it to be maintained quite literally forever. And that is indeed a conservative–and a radical–way of looking at things.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.