Where Constitutional Rubber Meets the Republican Road

Peter Berkowitz makes it sound so easy to come to a consensus on the way forward for the GOP by adhereing to the Constitution. In theory it sounds simple enough to apply the test of whether an idea fits within the framework of the Constitution before deciding whether to adopt the idea. Scott gives a nice analysis of the full article but I think that by looking at the nine ideas that he says should lead the agenda we can get a sense for how hard that concept is to apply in practice – and hence why the GOP lost its way so completely .

An economic program, health-care reform, energy policy and protection for the environment grounded in market-based solutions.

I’m not convinced that anyone in politics today even knows what a free market is so it’s hard to imagine that the idea of “market-based solutions” would have any consistent meaning from one person to another.

A foreign policy that recognizes America’s vital national security interest in advancing liberty abroad but realistically calibrates undertakings to the nation’s limited knowledge and restricted resources.

Follow the first vague idea with another. What does it mean to “advance liberty abroad?” If it includes any amount of playing earth-policeman then I don’t think it can fit within the framework of the Constitution. We should stand as a supreme example of a nation protecting the liberty of her citizens but regardless of our knowledge or resources we should not step in with force anywhere that we do not have legal jurisdiction to enforce liberty unless we have been attacked or publicly invited.

A commitment to homeland security that is as passionate about security as it is about law, and which is prepared to responsibly fashion the inevitable, painful trade-offs.

I’m not even sure that sentence said anything actionable.

A focus on reducing the number of abortions and increasing the number of adoptions.

I’m not sure how this could be construed from the Constitution but it is the right approach to the issue of abortion. Any discussion about the public teaching of any moral issue by the state should be entirely focused on the actual effects it would have on those measurable and commonly held goals. Even the Democrats would generally like to see lower numbers of abortions and higher adoption rates. The question is, do the policies we promote actually achieve those ends – if not they have no business being promoted by the state.

Efforts to keep the question of same-sex marriage out of the federal courts and subject to consideration by each state’s democratic process.

Like abortion, this idea is not about settling the moral question – it is about making sure that the question is settled according to the prescribed process.

Measures to combat illegal immigration that are emphatically pro-border security and pro-immigrant.

I like this idea, but I wonder how to formulate and articulate positions that are both pro-immigrant and pro-security.

A case for school choice as an option that enhances individual freedom while giving low-income, inner-city parents opportunities to place their children in classrooms where they can obtain a decent education.

This should be one of the easiest ideas on this list to pursue among the various conservative groups.

A demand that public universities abolish speech codes and vigorously protect liberty of thought and discussion on campus.

This should also be an easy sell among self-identified conservatives.

The appointment of judges who understand that their function is to interpret the Constitution and not make policy, and, therefore, where the Constitution is most vague, recognize the strongest obligation to defer to the results of the democratic process.

It is not only judges that need to understand this. The citizens as a whole need to recognize the difference between Constitutional interpretation and the making of policy

The fact that I am addressing these nine ideas does not mean that I have concluded that Berkowitz was right about which ideas are most important – I only used those to show the complexity that we must still navigate even after committing to that one core principle. The thing that Berkowitz is absolutely right about is that we can and should commit to put the Constitution at the center of our decision making process if the GOP is to have anything to offer to the American public.