Supreme Court nominee Brett Kavanaugh holds his U.S. Constitution in Washington, D.C., September 6, 2018. (Alex Wroblewski/Reuters)

Why opposition to government overreach grounded in constitutional principle is a sign of health in the body politic

Conservatism’s choice, among all the great modern revolutions, has always been the American Revolution. It sought not to remake the world — and man — anew by some utopian ideal, but rather to elevate and safeguard the liberty of man in our own, imperfect world. It ushered in a system of constitutional structures that limit and contain power, that create checks and balances to frustrate tyranny, and that view government as subordinate to the individuals from whom it derives its just powers. The conservative instinct is skeptical and individualistic, and, in the American context, constitutional. And that is why a new conservative idea is now focused on a revival of constitutionalism. We can almost say that this new conservatism is, in essence, a constitutionalism in and of itself.


First, a bit of history for context. In the 20th century, liberalism outgrew its 19th-century roots — the classical individualism of John Stuart Mill and others — and it fell in thrall to the romantic progressivism of the age. Mill held that truth emerges from an unfettered competition of ideas and that individual character is most improved when allowed to find its own way, unmolested and with government standing to the side. But that vision was insufficient for the ambitions of 20th-century liberalism. It lacked glory and it lacked sweep. Twentieth-century liberalism’s newfound perfectionist ambitions — reflected in its current euphemism, “progressivism” — sought to harness the power of government, the mystique of science, and the rule of experts to shape society and individual character and bring them both, willing or not, to a higher state of being.

Contemporary conservatism is a reaction to precisely that kind of overreaching, overarching ambition. It is deeply skeptical of belief in a progressive history or a redemptive politics. It believes that the first duty of government is to conserve what is, and most especially the great gift of the Enlightenment: the autonomy of the individual and the universe of free associations — the essence of civil society that Alexis de Tocqueville saw was so essential to American democracy, what Edmund Burke called “the little platoons” — that are created beneath, against, and apart from the behemoth of government.


We need not look far back into history to understand the importance of our Constitution and our reverence for it. Today, Americans are in the midst of a great national debate over the power, scope, and reach of the government that was established by that document.

The debate was first sparked by the Obama administration’s bold push for government expansion: a massive fiscal stimulus, Obamacare, financial regulation, various attempts at controlling the energy economy, and other attempts to regulate the private and economic life of Americans. Obama’s vision was one that sought to move America away from its tradition of a constitutionally restrained and individualistic system to a system more like the social democracies of Europe.


The kind of social-democratic vision promoted by President Obama engendered a spontaneous, popular countervailing reaction. This movement was called the “Tea Party,” but its appeal and the strength of its arguments have reached well beyond the groups explicitly adopting that label. It calls for a more restricted vision of government that is more consistent with the intent and the aim of the Founders.


I would call this constitutionalism, or a return to constitutionalism. And what’s interesting is that, in essence, constitutionalism is the intellectual counterpart and the spiritual progeny of the originalist movement that we see in jurisprudence. Judicial originalists (led by Antonin Scalia and other notable conservative jurists) insisted that legal interpretation be bound by something — namely, the text of the Constitution as understood by those who wrote it and their contemporaries. Originalism — once scorned as a kind of fringe tendency — has now grown to become the major challenger to the liberal “living Constitution” school of thought, under which high courts are channelers of the spirit of the age, free to create new constitutional principles accordingly.

What originalism is to jurisprudence, constitutionalism is to governance: an appeal for restraint rooted in constitutional text. Constitutionalism as a political philosophy represents a reformed, self-regulating conservatism that bases its call for minimalist government — for reining in the willfulness of presidents and Congresses — in the words and the meaning of the Constitution.



The new constitutionalism is a kind of self-enforced discipline — guided by a conscious grounding in constitutional text. Its first symbolic moment occurred in January 2011, when the 112th House of Representatives opened with a reading of the Constitution. Remarkably, this had never been done before in American history, perhaps because it had never been so needed. The reading reflected the feeling that we have moved far from a government of constitutionally limited and enumerated powers, and in the direction of government constrained only by its perception of social need.

The most galvanizing example of this expansive shift was the Democrats’ health-care reform, which aimed to revolutionize one-sixth of the American economy. And the most interesting and encouraging aspect of the pushback against this government power grab was the form it took. There was, of course, the usual opposition on the usual grounds for objecting to welfare-state expansion: that it was ruinously expensive and therefore unsustainable economically, and that it was introducing massive inefficiencies, complexity, and arbitrariness that would degrade the entire medical system itself as well as contributing to our looming national insolvency. That kind of protest and those kinds of arguments would have been the norm in preceding decades, and it might have stopped there.

But this time, an additional argument arose and became very powerful: constitutional illegitimacy. This objection manifested itself in two forms: popular opposition and political argument on the one hand, and serious legal challenge on the other. The object of the aversion on the part of conservatives was the individual mandate — the requirement by the federal government that every citizen buy health insurance from a private entity, under the penalty of a fine from Washington. From town hall to town hall, from campaign debates to arguments on the floor of Congress, people instinctively felt and saw that this was a bridge too far. That on principle, even if Obamacare was economical, beneficent, and efficient, it was impermissible to force a citizen to do something against his will — not just to prohibit certain actions, but to compel the positive undertaking of action — simply to promote what the government saw as some social good.

Even more interestingly, it spawned a legal challenge that was at first dismissed by the better thinkers in Washington as just the work of fringe elements. Democrats were extremely dismissive of this constitutional objection at the beginning. Yet within several months the legal challenge was joined by a majority of the 50 states. The basis of the argument was that the government had exceeded its enumerated powers.


This is a refreshing line of argument. The essence of constitutional power has always lain in the fundamental Madisonian idea of a government of enumerated powers. Indeed, at first it was thought that a newly born United States would not need a Bill of Rights that enumerated rights against a government. It was assumed that after the tyranny of the British king and parliament, Americans would simply accept a system in which the limited powers of the branches of government, spelled out in the Constitution, would be a sufficient bar to overreaching. And as a fail-safe, the separation of powers and the inherent rivalry among the branches would check the ambitions of any potential tyrants.

There were skeptics, of course, who thought that this was not barrier enough. They insisted on the Bill of Rights, not trusting that the enumeration of powers would be enough to actually prevent tyrannical rule. They ensured that each citizen would explicitly be given a sphere of inviolability in the form of rights against the government — inside of which the citizen remains sovereign and free.

Over the last century, with the ascendancy of the progressive and liberal tradition, with the expansion of government and its regulations, dictations, and overall presumptions, the Bill of Rights has gone from being a simple checklist of areas where “Congress shall not” to being a last redoubt of the individual against governmental power that otherwise sees itself as unlimited. Thus, for most of the 20th century, protection against big government was to be found in the individual protections spelled out in the Bill of Rights.

But now a more ambitious challenge to big government is emerging: an insistence that the enumerated powers of Congress and the presidency strictly define the limits of their competence, that government’s power ends long before it intrudes upon the individual rights in the first ten amendments.

Government is limited to its sphere, and that means that everything outside of it — which is everything else in life — is the sovereign domain of the individual and of civil society. It’s akin to the difference in figure–ground perception. With the focus on enumerated powers, the ultimate objective is to restrain the government and to keep it in a box where it cannot touch anything else, whereas a focus on the individual leads to the traditional defense that draws an impenetrable box around the individual, but everything outside of it is ceded to government.


Which is the better way to define the border between citizen and state: an enumeration of powers within which Congress and the president may act but beyond which they may not reach? Or an enumeration of rights delineating the inviolability of the individual, outside of which the government may do nearly anything? Both approaches are of course valid and valuable. But the revival of the first — the insistence on the enumeration of powers as the limit of congressional power — is a salutary development. The Bill of Rights is the last resort, the last redoubt of the individual against intrusive, overbearing government. But better to meet big government first on the field of battle, on the grounds of enumerated powers.

That’s why I have hope for the future: What is so extraordinary about the popular and judicial reaction to this federal overreach is the fact that the opposition grounded itself not just in policy but in constitutional principle. This reaction — inchoate, unorganized, undirected — was a wondrous sign of the health of the body politic. The movement has concentrated on exactly the correct constitutional issues and found its strength in constitutionalism itself. It’s not just the traditional arguments that Obamacare or these other expansions are inefficient, that they are not economically sound, that they lead to bureaucratic inefficiency. Those would be valid, but they wouldn’t be enough, not at this time. The issue is important not just for how it will affect one-sixth of the economy and the most vital part of our social and family life. It is equally important for what it portends for future challenges to government overreaching.

The argument now emphasizes and is rooted in an attack on the constitutional illegitimacy of what is being done, and that — in a constitutional republic — is the heart of the matter. This does not in any way denigrate the other forms of the conservative critique of modern liberalism. But it does serve to reinforce it. In choosing to focus on a majestic document that bears both study and recitation, this kind of reformed conservatism has found not just a symbol but an anchor. Constitutionalism as a guiding tendency will require careful and thoughtful development, just as its counterpart in jurisprudence — originalism — has required careful and thoughtful development. But the very existence and power of this critique — and of the popular and spiritual support it has received — is a reason for hope, if not for change.

— This essay is adapted from Charles Krauthammer’s posthumous book, The Point of It All, which was edited by his son, Daniel Krauthammer.