After generations in the shadows of American political discourse, the phrase "constitutional conservatism" burst onto center stage after the disastrous conclusion of the George W. Bush administration. The junior Bush left office in 2009 with a 22% approval rating, in the middle of the worst economic crisis since the Great Depression. But the failure wasn't just about one president or his policies. wasn't just Bush who had failed. In the New Republic, Sam Tanenhaus offered this summary:
After George W. Bush's two terms, conservatives must reckon with the consequences of a presidency that failed, in large part, because of its fervent commitment to movement ideology: the aggressively unilateralist foreign policy; the blind faith in a deregulated, Wall Street-centric market; the harshly punitive "culture war" waged against liberal "elites."
In fact, ideology has never been conservatives' strong suit — at least, not in recent American history. Where they've been more successful is with myth-making, or to put it in marketing terms, branding. Bush ran for president in 2000 as a "compassionate conservative," purportedly saving the movement from the divisive, destructive legacy of Newt Gingrich's scorched-earth politics. But as Bush speechwriter David Frum later observed, that was "less like a philosophy than a marketing slogan." The adviser most closely associated with that branding exercise, John Dilulio, left the new administration in August 2001, offering a similarly bleak assessment: "There were, truth be told, only a couple of people in the West Wing who worried at all about policy substance and analysis."
Within weeks of his departure, the 9/11 attacks shifted history and the neocons took over. "Compassionate conservative" lingered on only briefly as a catchphrase, but nothing more.
With Bush departing in disgrace after the landslide election of Barack Obama, it was time for another reboot, and another alliteration: "Compassionate conservatism" was out; "constitutional conservatism" was in. But no one was quite sure what that meant. There were at least three broad camps who advanced that terminology around 2009 and 2010: "Burkean" intellectuals, Tea Party insurrectionists and the conservative movement leaders who produced a manifesto, "The Mount Vernon Statement: Constitutional Conservatism: A Statement for the 21st Century."
The label also resonated with three other overlapping constituencies who had long been fixated on the Constitution: Christian nationalists, with their specious claims that America was founded as a Christian nation; the "originalist" judicial activists of the conservative legal movement who claimed to channel the innermost thoughts of the founding fathers; and an assortment of conspiracy-minded right-wing populists, typified by longtime congressman and two-time GOP presidential candidate Ron Paul. His followers claimed to be the only true constitutionalists, feeding into such phenomena as the "constitutional sheriffs" movement, which proposes that county sheriffs are the only legitimate elected officials or law enforcement officers. The tensions within and between these competing versions of constitutional conservatism ultimately brought us Donald Trump's presidency — and then his attempted coup in 2021.
What these factions had in common with was this: They represented the views of an aggressive, embattled minority across a range of issues, while rhetorically claiming to stand for a silent, imagined supermajority of "real Americans." With a few odd exceptions, such as his promise not to cut Social Security or Medicare and his reluctance to engage in overseas military adventures, the same could be said of Trump, who largely fit into the constitutional conservative scheme, even as his malevolent excesses undermined it.
All factions of constitutional conservatism had one thing in common: They represented the views of an angry, embattled minority, while claiming to stand for an imaginary silent majority of "real Americans."
First out of the gate in 2009 was Peter Berkowitz, a senior fellow at the Hoover Institution. Three weeks before Obama's inauguration, in a Wall Street Journal op-ed, he argued for what might be called the "Burkean" version: "A constitutional conservatism puts liberty first and teaches the indispensableness of moderation in securing, preserving and extending its blessings."
Moderation was Berkowitz's central theme, as ludicrous as that looks from this distance. "Unfortunately, contrary to the Constitution's lesson in moderation, the two biggest blocs in the conservative coalition are tempted to conclude that what is needed now is greater purity in conservative ranks," he wrote. "Down that path lies disaster." Different conservative factions needed each other, he argued, not just as a "coalition of convenience" but a "coalition of principle." Principle and practicality went arm-in-arm, he argued:
If they honor the imperatives of a constitutional conservatism, both social conservatives and libertarian conservatives will have to bite their fair share of bullets as they translate these goals into concrete policy. They will, though, have a big advantage: Moderation is not only a conservative virtue, but the governing virtue of a constitutional conservatism.
But all talk of moderation was quickly swept aside by the nascent Tea Party movement, which held its first nationwide demonstrations on Feb. 27, 2009, spurred on by CNBC commentator Rick Santelli's hysterical rant from the oh-so-populist Chicago Mercantile Exchange. Fox News jumped on the bandwagon, and the next big nationwide protest — on Tax Day, of course — drew more than 300,000 people, according to Nate Silver: "Turnout was much higher in state capitals than in other cities, and seems to have been much larger in the South than in other regions of the country. Atlanta, being by far the largest Southern state capital, therefore did very well." Berkowitz, it appeared, was flat-out wrong: No "moderation" was needed to bring social and economic conservatives together.
At first, the Tea Party didn't use the language of constitutional conservative, instead acting it out, as explained by Karen Armstrong in the introduction to "The Battle for God." She distinguishes between two radically different forms of knowledge: logos, which has to do with how things work in the world, and mythos, which has to do with ultimate meanings:
Myth was not concerned with practical matters, but with meaning. Unless we find some significance in our lives, we mortal men and women fall very easily into despair. The mythos of a society provided people with a context that made sense of their day-to-day lives; it directed their attention to the eternal and the universal. …
Myth only became a reality when it was embodied in cult, rituals, and ceremonies which worked aesthetically upon worshipers, evoking within them a sense of sacred significance and enabling them to apprehend the deeper currents of existence.
That's exactly what the Tea Party was doing. Did any of it correspond with the text of the Constitution? Selectively, here and there perhaps, in much the same way that vastly different religious practices claim to honor the same sacred text. But even asking that logos-oriented question misses the point: Mythos doesn't have to accurately reflect anything outside of itself. Ritual practice makes it feel true.
"Several thousand neopatriots – some shouting 'Give me liberty or give me death!' – took to the streets in over 30 U.S. cities," the Christian Science Monitor reported. "Eighteenth-century symbolism was rife at the Atlanta event as speakers drew comparisons with the Boston patriots who dumped the King's tea in Boston Harbor to protest taxation without representation, an act that began the American Revolution and the founding of the United States."
Of course that was all nonsense. The Boston Tea Party wasn't a protest against taxes, but against lack of representation. Massachusetts, then as now, was a high-tax society that treasured public goods. Opposition to taxes per se came from a very different corner, as historian Robin Einhorn documents in "American Taxation, American Slavery."
The constitution celebrated by Tea Party activists was closer to that of the Confederacy than to the one that supposedly governs the actual United States.
"What I found is that in early American history, slaveholders in particular were terrified of majorities deciding how to tax them. So they came up with strategies of how to stop that," Einhorn told me, three years before the emergence of the Tea Party. Indeed, the constitution celebrated by the Tea Party was closer to that of the Confederacy than the one that supposedly governs the actual United States.
A third version of constitutional conservatism was unveiled the following year, and that was when the phrase really took off. A group of movement conservative heavy hitters, including Edwin Meese, Tony Perkins, Brent Bozell and Grover Norquist, brought together 80 conservative groups to endorse a manifesto, the aforementioned "Mount Vernon Statement," which promised that "A Constitutional conservatism unites all conservatives through the natural fusion provided by American principles." As Ben Smith reported for Politico:
Meese said the statement is intended to "restate" and "update" the Sharon Statement, a 1960 manifesto of the group Young Americans for Freedom on the limits of government and the evil of communism published in William F. Buckley's National Review, which many view as a founding document of modern conservatism.
This reboot was meant to make conservatism great again out of the smoking ruins of the Bush administration. Unlike Berkowitz, these conservatives had the organizational muscle to pull it off, even if "Not all prominent conservatives are on board," as Ralph Hallow reported for the Washington Times. Longtime right-wing activist and direct-mail pioneer Richard Viguerie told him: "If the people in the leadership of the conservative movement are going to put out pablum like this, the tea party people are going to make them seem irrelevant. And the tea party people are going to march to the forefront."
Viguerie's view was echoed by an unlikely source: Rachel Maddow. who called the statement "a grandiose fake parchmenty-looking thing" filled with "such generic 'I love my mama' platitudes that even a pinko commie liberal elite infidel like me would be happy signing on to all but one paragraph. ... If I fit your definition of conservative, your definition of conservative is probably broken."
Pushed along by the tailwinds of social media, Donald Trump's election in 2016 seemed to vindicate Viguerie's view, despite the tortured efforts of intellectuals like Yuval Levin to tame and claim the Tea Party for themselves. But Trump also drew from the three older strains cited above. He secured both base and elite support with his promise that "We're going to have great judges, conservative, all picked by the Federalist Society," meaning that Roe v. Wade would be repealed "automatically." That was a crucial consideration in preserving evangelical support when the "Access Hollywood" tape came out not long before the election.
As I reported in 2018, sociologist Andrew Whitehead and two colleagues found that "Christian nationalism predicted voter support for Trump better than any other explanations that have previously been provided." Christian nationalists selectively read and venerate the Constitution, just as they do the Bible.
Third, Trump first established himself as a conservative Republican figure through his promotion of birtherism, setting the tone for conspiracy theorists of all stripes to coalesce behind him, as underscored by Alex Jones, who reacted to Trump's glowing praise in 2015 by saying, "My audience, 90% of them, they support you." After that, it was no surprise that two conspiracist movements rooted in the "Christian identity" ministry of William Potter Gale — the "sovereign citizen" and "constitutional sheriffs" movements — played significant roles in rallying militant support behind Trump's candidacy, his Jan. 6 coup and beyond.
Alex Jones and Peter Berkowitz are effectively polar opposites: Jones epitomizes the unhinged low-trust online environment he has done so much to shape, following in the footsteps of Rush Limbaugh and Roger Ailes, while Berkowitz offers hosannas to the founding fathers for creating a high-trust model that has virtually disappeared. Yet in different ways both are the public faces of constitutional conservatism. Both ignore vast swathes of history and hold liberals responsible for destroying the Constitution they selectively revere, while never looking too closely at how much it accommodated slavery, for example, and never taking seriously the full scope of the Reconstruction amendments that at least tried to correct that tragic flaw.
While much of the deranged conspiratorial fantasy Jones peddles may seem far removed from the constitutional realm, it's no accident that he's being sued into bankruptcy for his gaslighting on gun violence, at essentially the same time as the Supreme Court's right-wing majority has gone off the rails with its Bruen ruling, dramatically expanding the scope of the Second Amendment.
Meanwhile, the aforementioned "constitutional sheriffs' movement has fueled increasing lawlessness by local law enforcement. As Chicago Tribune reporter Jake Sheridan recently tweeted, "Dozens of Illinois sheriff's departments say they will not enforce a new state law banning assault weapons. The sheriffs say they believe the ban is unconstitutional." These renegades feel no need to go to court because they believe they are laws unto themselves, as the founders supposedly intended. (In fact, the word "sheriff" appears nowhere in the Constitution.)
"Constitutional sheriffs" claim they are the only legitimate law enforcement officials, effectively a law unto themselves, as the founders supposedly intended. Interestingly, the word "sheriff" appears nowhere in the Constitution.
Trump's Jan. 6 coup attempt, and the GOP's complicity in letting him off scot-free, should have put an end to the "constitutional conservative" charade once and for all. Not only did all the various different versions of that fantasy help bring Trump to power, and fail to restrain him once he had it, the majority of Republican lawmakers (and Republican voters) who supported him continued to support his attempts to overturn a legitimate election. Things might have been different if just over a third of Republican senators had voted for conviction in Trump's second impeachment trial. No one seriously imagined they would do that, of course. Conservative principles always come with a valence. As Frank Wilhoit famously observed:
Conservatism consists of exactly one proposition, to wit:
There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
This helps explain why mythos is so central to conservatism. In-groups create and sustain themselves through a shared sense of meaning that excludes everyone else. It also explains why "constitutional conservatism" is so appealing: What better source of law could there be to protect in-groups and bind out-groups than the sanctified document of 1789? So the mythos makes perfect sociological sense, even if it's historical nonsense.
Consider two prospective 2023 actions of the new Republican House majority. Speaker Kevin McCarthy has expressed his willingness to consider a vote "expunging" Trump's impeachment. That is simply not a thing. Impeachment is a constitutionally defined process, and if the framers had wanted it to be revocable, they would have provided for that. They did not: There's no constitutional mechanism for reversing or erasing an impeachment. It's a fanciful invention concocted to soothe Trump's ego, and as such epitomizes what has become of "constitutional conservatism." It's a laughing stock.
Second is McCarthy's threat not to raise the debt ceiling, which could have disastrous economic consequences. As historian Eric Foner pointed out in the New York Times, Section 4 of the 14th Amendment "offers a way out of the current impasse over increasing the debt ceiling. 'The validity of the public debt of the United States,' it declares, 'shall not be questioned.'" Foner goes into some detail about the history involved, but the language itself is clear. But questioning the "validity of the public debt" is exactly what House Republicans seem ready to do, and nothing could be more directly opposed to the plain text of the Constitution.
Of course, conservatives have never cared for liked the Reconstruction amendments, and have done everything in their power to ignore, misconstrue or hobble them. In part that's because their language is so clearly not conservative. The 15th Amendment, for example, is short and succinct:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
A right is established, and Congress gets the power to enforce it. End of story. But as David Kow explains, "Chief Justice Roberts, over the course of two Supreme Court opinions, created and applied a new 'fundamental principle of equal sovereignty' which became the basis for invalidating a key component of the Voting Rights Act" — an act expressly authorized by Section 2. This is entirely typical of the way "constitutional conservatives" treat the actual Constitution with contempt when it stands in the way of their political goals.
Chief Justice Roberts has created a new "fundamental principle" used to override the 15th Amendment, which is entirely typical of the way "constitutional conservatives" treat the actual text of the Constitution with contempt.
The bottom line is clear enough: All these versions of "constitutional conservatism" are flawed in fundamental ways. The Mount Vernon Statement was either meaningless "pablum," in Viguerie's words, or else it was so coded that only insiders could explain what it really meant. Berkowitz's claim that moderation is "the governing virtue of a constitutional conservatism" now looks historically ludicrous. The Tea Party's version — which kick-started the trajectory of deepening right-wing radicalism — is based on fake history, as already noted, and sustained by false accusations.
The "Tea" in "Tea Party" was supposed to stand for "taxed enough already," with the claim that Obama's stimulus — and the Bush bank bailouts he expanded — would ruinously drive up taxes. In fact, the economic stimulus was more than 30% in the form of tax cuts, exactly the opposite of what the Tea Party claimed. Such false claims, and many others, set the tone for the upsurge of conspiracy theory, utterly at odds with the Constitution's self-evident trust-building purpose.
Christian nationalism conflicts directly with the clearly secular nature of the Constitution (though not with the Confederate constitution, it should be noted). In "The Founding Myth: Why Christian Nationalism is Un-American," Andrew Seidel convincingly shows how biblical principles directly conflict with our constitutional order. (Salon interview here.) Lastly, the "originalist" vision of so many conservative judges has nothing to do with the framers of the Constitution, who, as legal scholar Erwin Chemerinsky told me, "didn't believe in originalism. … [I]f one is to follow the framers' intent or the original understanding of the Constitution, one has to abandon originalism."
In short, every version of "constitutional conservatism" is fatally flawed in some way. It was born as an effort to erase conservatism's failures of the past, and persisted as a method for defining away its continuing failures, especially the ones it created along the way, culminating in Trump's attempted coup.
Of course the right is likely to attempt another reboot in the wake of the Trump debacle, but that is not likely to help. Conservatives' root problem is that they don't want to do things that are popular — that is, solve real-world problems — so they try to win elections entirely by attacking Democrats, as they did with crime and inflation in last year's midterms or by running against "Obamacare" in the 2010s. But whenever they get power, they're a mess. They vowed to "repeal and replace Obamacare," but could never come up with an alternative. Their only answers to the most pressing problems of the day are to pretend they don't exist, usually by creating entirely different and largely imaginary problems to focus on. No new branding effort can fix that.
