Pundits Fuel the Right's Latest Rage

‘Constitutional’ conservatives’ selective love for Bill of Rights

Right-leaning pundits play a key role in a growing fad of self-styled "constitutional conservatives" who say Barack Obama is subverting the U.S. Constitution--and brandish pocket-sized copies of the document to prove it. The pundits cite a potpourri of purportedly unconstitutional policies, including healthcare legislation, corporate bailouts and perhaps even a cover-up over where Obama was born.

And they're making an impact. A Nexis database search of U.S. newspapers and news wires using the terms "constitutional conservative/conservatism" gives some indication of the growing prominence of the trend. Rarely mentioned in the year 2000 (12 times) or even in 2009 (30), it caught fire in 2010 with 628 mentions and now outpaces "compassionate conservative."

Constitutional conservatism counts among its ranks some of the GOP's biggest names: relative newcomers like Sarah Palin, senators Jim DeMint and Rand Paul, and Rep. Michele Bachmann, along with old-guard conservatives such as senators John Kyl and Orrin Hatch and Reagan Attorney General Ed Meese. The right's leading think tank, the Heritage Foundation, regularly decries assaults on the Constitution (e.g., "Restoring the American Compact," 9/16/10). The Cato Institute, which challenges the healthcare act on constitutional grounds (Cato.org, 12/17/10), specializes in arguing that the financial bailouts were unconstitutional (Cato.org, 10/20/08.)

In February, 80 conservative groups signed on to a manifesto, "The Mount Vernon Statement: Constitutional Conservatism: A Statement for the 21st Century." In addition to Heritage president Edwin Feulner, signatories included Meese, Grover Norquist of Americans for Tax Reform and Morton Blackwell of the Leadership Foundation. Conservative media figures who signed on included Human Events' Tom Winter, National Review's Kathryn Lopez and Brent Bozell of the Media Research Center.

Right-wing appeals to "constitutionalism" are not unprecedented; the Clinton years also saw a surge in constitutionalism on the right, largely located in militia and so-called patriot groups, whose ideology resembled today's constitutional conservatism. The transformation of fringe views of the '90s into today's mainstream conservatism has much to do with an enthusiastic corps of apostles in the corporate media.

"That Rock in the Healthcare Road? It's Called the Constitution" was the headline over a widely syndicated George Will column (Washington Post, 1/14/10) lambasting White House-backed healthcare legislation for requiring individuals to buy private insurance. In another column (Washington Post, 3/29/09), "Bailing Out of the Constitution," Will targeted the Emergency Economic Stabilization Act of 2008 (better known as the TARP bailouts) for allowing the White House to decide where the funds should be spent, which Will says violates a constitutional doctrine forbidding Congress from delegating such powers:

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure--particularly the separation of powers--imply limits on the size and kind of discretion that Congress may confer on the executive branch.

Will's appeal to the constitutional authority of GOP partisans at FreedomWorks, and to constitutional language he admits "does not spell out" what he is attempting to argue, is amusing. But it's also worth noting that the bailout law was originally signed by George W. Bush (10/3/08); Will's column declaring it unconstitutional ran five months later, after Obama, who continued the program, took office.

Fox News contributor and Washington Post columnist Charles Krauthammer (Special Report, 7/9/10) also says the healthcare act subverts the American compact: "Obama-care won't stand a minute of scrutiny under Tenth Amendment analysis." (The Tenth Amendment, which reserves powers not granted to the federal government "to the States...or to the people," is a favorite of "constitutional conservatives.")

On Rush Limbaugh's radio show, where calling the president a "boy" (10/27/09) or describing him as looking "demonic" (10/18/10) is considered responsible commentary, charging the White House with subverting the constitution is de rigueur (e.g., "Obama Thugocracy on Display in Un- constitutional Chrysler Takeover," Rush Limbaugh.com; 5/5/09).

Fox News talker and Weekly Standard editor Bill Kristol boasts (Weekly Standard, 6/28/10) of "the peaceful constitutionalists-populist political realignment" that he and fellow conservative pundits have helped create, adding, "The small people are winning." According to Kristol (Fox News Sunday, 4/11/10):

One thing that motivates conservatives today is the sense that the Constitution has become a nothing.... There's no constraint on government.... I think the notion that there's a kind of constitutionalist agenda on the right to oppose the progressive agenda on the left has actually gone further down into the populace, you know, than constitutional-type issues normally do.

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