Originally published at RLC.org
We’re in danger when the conservative instinct to defend law and order … defies law and order.
Conservatives often talk about the Constitution and the importance of defending our founding charter. After all, without a strong rule of law, we could never have the kind of society worthy of conservative standards to begin with. One of the reasons many cite for voting Republican in a presidential race, even if they dislike the candidate, is that they believe at the very least, the Republican will nominate palatable Supreme Court Justices who interpret the Constitution conservatively, in effect defending the aforementioned centrally important rule of law. At times however, it seems that some people are confused about the context of the ‘conservative’ label. A conservative (IE: originalist) reading of the Constitution is not the same as a conservative (IE: political) interpretation.
The latter is judicial activism. It in no way differs from the “discovery” of rights that created the precedents necessary for Roe v. Wade to exist – and we all know one of the foremost conservative arguments against that case is based on the fact that it stands on rather shaky constitutional grounds; a defense rooted in a pro rule of law argument. But, it appears that for some (in particular the many pro-life Congressmen and Senators who favor the PATRIOT Act), it’s only convenient to use a constitutionally based argument when it suits your particular issue politically.
So what then, are orginialists who support the Constitution regardless of emotional arguments on issues deemed politically conservative, to make of last week’s PATRIOT Act renewal battle? Ultimately, despite the disappointment, it seems that Republicans with libertarian and constitutionally conservative values are at least making some progress.
Particularly positive is the fact that many freshmen who won on the tea party wave are taking seriously the fact that the PATRIOT Act does violate the Constitution. As Rand Paul, who filibustered the act, eloquently noted on the Senate floor, we cannot preserve the 4th amendment without the 2nd amendment, or the 1st. In fact, we need the entire bill of rights; it cannot protect our freedoms unless it comes together as a whole.
In the Senate, with some shady maneuvering (what else is new?), Harry Reid bypassed Rand Paul’s attempts at a filibuster by tacking the vote to reauthorize the provisions onto the Small Business Additional Temporary Extension Act of 2011. While only four Republican Senators voted against the act, Heller, Paul and Lee (on the tea party side of the spectrum) and Murkowski (a moderate), we ought to keep in mind that one individual Senator has a great deal of power, and that three new Senators with tea party sympathies making a difference on this issue is a flicker of hope as we emerge from the darkness of the Bush era.
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