Jennifer Rubin, The Washington Post’s conservative beat reporter, has an all-out assault on Rick Santorum’s constitutional views—going so far as to call him “constitutionally illiterate” and “un-conservative” when Santorum suggested that a so-called “truce” on social issues is a gross misunderstanding of American political life. While Rubin’s insult strikes me as an extreme and unnecessary barb on Santorum, Rubin’s own constitutional milieu is just as equally troubled.

She states,

“You can look to the Declaration or the Federalist papers or the Constitution and make a principled argument that America is about individual liberty or limited government (which secures the former). But it’s not about moral issues or any issue.” (Emphasis mine).

Our country was founded on the notion that limited government (bound by the rule of law and hemmed in by the separation of powers) is essential to maintain a free, diverse and prosperous people. It is precisely because we disagree on so many issues that we support a political system that tempers majority control with individual rights. It’s not about one side winning on certain issues or even demanding that certain issues be at the forefront of our agenda.

Rubin goes on to support her claim using Federalist No. 10 from the Federalist Papers and a lengthy quote from political philosopher Peter Berkowitz.

Those well acquainted with Rubin’s blogging will see her libertarian element rise to prominence quite frequently, no less demonstrated here.

I might reply that, no matter what a nation’s dedications are to its founding documents, a nation is and becomes by default more than its founding documents. One need not, however, adopt a liberal rendering of the Constitution (heaven forbid, I’m an originalist) to achieve my claim. To suggest that the Constitution sets the limits on what is or is not considered valuable to individual citizens is absurd.

Not only does Rubin fail to see the larger scope of Santorum’s claim, her own reluctance to see the importance of social and religious issues escapes other founding fathers’ claims on the intent of the Constitution. John Adams—no right-wing Christian by his own designation—spoke these words on how the Constitution would function in a land comprised of competing passions.

We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other.

So in Rubin’s view, the Constitution is exclusively about limited government and assuring maximal personal liberty; yet for Adams, the same Constitution rebuffs the exact passions that Rubin celebrates as the ultimate expression of Constitutional fidelity. Weird.

Rubin’s absolutist jab displays none other than a Beltway reluctance to adopt the social values of Santorum’s “Rust Belt” Pennsylvania or the so-called “fly-over states“—those geographically disenfranchised few who insist that moral values actually matter to our daily lives.

I’d point readers to George Nash’s The History of the Conservative Intellectual Movement for a fuller treatment on why Constitutional allegiance not only welcomes issues of moral relevance, but demands it.

 

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Posted by Andrew Walker

Andrew T. Walker is an Associate Professor of Christian Ethics at The Southern Baptist Theological Seminary.

6 Comments

  1. I frequently run up against this sort of selective interpretation in discussions with my liberal, conservative, and, to some extent, libertarian friends – who selectively interpret the Framer’s views to match today’s political fashions.

    We do a disservice to both our history and our current politics when we attempt to remake the Framers into our own image.

    Reply

  2. AW-

    I haven’t read Nash’s book, but I’ve just added it to my summer reading list.

    Now on to thinking:

    Your quote from John Adams brought out the real question in this whole debate. If “our Constitution was made only for a religious and moral people,” and “it is wholly inadequate for the government of any other” — then we Christians and Americans have to ask ourselves, “What makes men moral?”

    It seems to me that there has been a shift in conservative Christian political theory whereby they now answer the previous question with – “It is laws that make men moral.” But we know biblically that is just not the case. Yes, government is to punish the evil and reward the good — but it was never entrusted with changing evil men into good ones. So we come to the present predicament wherein the Judeo-Christian ethos of the country is steadily eroding away — to the point where you now have social conservatives trying to re-make men moral by law, and libertarians arguing (and I believe rightly so) that law was never meant for that purpose in the first place.

    Issues pertaining to life (abortion, euthanasia, etc) are in a separate category than the rest of the so-called social issues for obvious reasons, namely to take a life is not only evil (in a theological sense), it is also counter to individual liberty (in a political and constitutional sense). That is why, btw, Ron Paul is not an inconsistent libertarian in being ardently pro-life, but is actually one of the few truly consistent advocates for liberty from the womb to the tomb.

    I agree with you that the Constitution is a document with moral force. I think it would helpful however to consider that ‘liberty’ itself has moral force. How should our Baptist views guide us here? Do I believe that sinners have the Christian liberty to continue in their disobedience to God? By no means. But they very well might have the political liberty to do so. And we may very well be overstepping the biblical role of government to order their personal lives by our own political “commandments of men”.

    ‘BH

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    1. Andrew Walker May 11, 2011 at 12:44 pm

      Hank,

      Fist of all, we’re never allowed to disagree with each other. Got that? :)

      Secondly, I agree with you in part, but I also think that the law, using the Apostle Paul’s term, is a “pedagogos”—a teacher, and that law instructs a culture and culture instructs the law. Culture, of course, is nothing more than the collective soul of a people bounded in a community.

      The intent of law is a separate matter than the outcome of law.I think you’re right with your libertarian strand of thinking that would say that laws in and of themselves do not “make men moral.” Yet, if I’m allowed to adapt Paul’s thought, law—civil law—is a teacher.Example: No-fault divorce law was purposed towards making bad marriages easier to end. Yet, the “let’s walk away from marriage” concept has fundamentally contributed to a different understanding of marriage today. So, in some sense, the law does instruct a people’s habit in the sense that the law incarnates itself in the lives and culture of actual citizens.

      I’m not sure that that is entirely clear. However, I can agree with you that people perhaps may have the political freedom (perhaps we call it privacy) to be immoral, but that principle does not abrogate the pursuit of law that portends a moral good.

      We may institute a law portending of a moral good that follows, yet realistically expect that the law may not be followed.

      You, sir, are a libertarian, aren’t you? :)

      Reply

  3. AW –

    I promise never to disagree with you when you agree with me. :)

    And I appreciate your insight there on the culture of marriage. I would like conservatives do some deeper thinking on the crossover there between the culture of drugs and see what kind of ‘success’ they find in lawfully incarnating morality into the culture. I’ll grant that no-fault divorce seems to have had cultural consequences, but it still comes back to the question of “What hath Washington D.C. to do with Main Street?” or better yet, “What hath your vote to do with my vows?”

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  4. Matt,

    I think I’d take exception to Rick Santorum, Jennifer Rubin, and your response.

    The Constitution doesn’t determine “what America is all about.” Generally, the Constitution focuses on procedural protections that dictate how the American people can obtain their ultimate policy goals. Most of the substantive policy enshrined in the constitutional text comes from amendments. The inclusion of an amendment process in the Constitution is good reason to question the view that the Framers intended the Constitution to dictate a particular political philosophy for the rest of country’s history. The Framers allowed for amendments so that the American people could adjust the constitutional text to deal with changing circumstances. While there is a political philosophy that stands behind the constitutional structure itself, that policy too is not beyond revision. Within the Constitution’s current procedural limits there’s tremendous space for diverse policy results – including progressive, libertarian, and religious-conservative political views.

    That background provides the foundation for why I disagree with your view and Rubin’s. It seems to me that Rubin attacks Santorum for not respecting the views of the Framers regarding limited government. She identifies here libertarian philosophy with the philosophy of the Constitution itself. I think that’s a mistake. The Constitution allows for libertarian policies but if interpreted correctly, it also allows for laws and legislation that greatly impair individual liberties. Quotations from the Federalist Papers don’t change this. Hamilton, Madison, Jay, all understood and believed that the American people could use the constitutional process to adopt laws that the authors of the Federalist Papers might object to on philosophical grounds.

    Likewise, I disagree with your identification of the “intent of the Constitution” with the quote from John Adams. I agree with Adams that the Constitution is insufficient to prevent an immoral citizenry from ruin. However, it doesn’t follow from this that people can’t use the constitutional process to adopt immoral or foolish laws.

    These points aren’t just a matter of technical logic-chopping. I firmly believe that promoting substantive policy goals on grounds that they comport with Constitution’s “philosophy” is the root cause of most judicial overreaching – often times to the detriment of conservative evangelical policy views. States can’t regulate abortion because the Constitution protects “privacy.” A public school nativity or student led prayer at a high school football game are evaluated to determine whether, among other things, they’re justifiable for a “secular purpose.” These anecdotes illustrate the danger of allowing political philosophies to dictate constitutional interpretation (with the exception of the procedural mechanisms that the text itself justifies, though those too are subject to revision).

    That being said, I disagree with Santorum’s comment as well, though not on constitutional grounds. I think that Mitch Daniels’ “truce” makes good sense. To use just one example, the reality is that on issues like abortion the “truce” only benefits conservatives. There’s very little that the next President or Congress can do to change the legal status of abortion at this point. The only real influence the next President will have on abortion is to nominate originalist justices to the Supreme Court who disagree with Roe v. Wade. Until the Court changes its views on Roe, most legislation affecting abortion pertains to government funding. The “truce” entails that the left will refrain from tying up responses to the fiscal crisis with issues like federal funding for abortion. Daniels states explicitly that the “truce” would not affect his Supreme Court nominations. So, though perfectly constitutional, I think Santorum’s criticisms miss the mark.

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  5. Andrew,

    Sorry, I realized after posting my response that you’re the author of this post and not Matt. Sorry for the confusion.

    Also, in a slightly different context, I came across a quotation that presents a more articulate version of something I tried to say:

    “[A] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

    Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting).

    Reply

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