President Donald Trump may be a somewhat late-comer to conservatism.
Once a registered Democrat, he is increasingly becoming a splendid expositor of what traditional American conservatives advocate.
This was first made clear by his announcement, when a candidate for the presidency, that he would appoint judges and justices in the mold of Antonin Scalia and Clarence Thomas.
Jurists committed to interpreting our Constitution as originally understood.
What the president rejected by this decision was the belief of progressives that the Constitution ought to evolve with the times, and the concomitant notion that it was the job of progressive judges to aid in that endeavor, applying their own notions of evolving standards of decency and equity in society to make ours a more just polity.
This liberal constitutionalism undeniably has a surface appeal. For who could be against decency and equity? But on closer examination it runs counter to the basic American notion that legal and constitutional change ought to be the task of the people — not judges.
Government by judiciary is not the way of a Republic.
It deprives Americans of self-government.
Ours is a complex society, and we Americans cherish multiple and conflicting values.
For example, we are for equality — but we are also for individuality.
We are for equity and justice, but we are also for the protection of basic rights, inclusive of life, liberty, and property. We are for a strong economy and a strong national defense, but we are also for limited government, in order to preserve some sphere of privacy, free from governmental intrusion.
Balancing these contrary imperatives is a task too delicate for judges; when it comes to striking the right reconciliation of these contrary goals, our Framers believed, the representatives closest to the people, the state and federal legislatures, ought to be the ones relied upon.
This insight of the Framers was all but lost to us in in the last few decades, as our federal courts — to a great extent — remade the Constitution in matters of education, criminal procedure, political redistricting, contraception, abortion, and marriage.
We are now in the throes of a reaction to the usurpation of the people’s constitutional power, and the election of Donald Trump is best understood as a reaction to the hegemony of the federal Leviathan in general — and the judiciary in particular.
This makes it easier to understand Donald Trump’s revelation last week that he's a supporter of the newly-reintroduced Flag Protection Amendment, a simple text providing that "Congress shall have the power to prohibit the physical desecration of the flag of the United States."
As with everything this president does, this was greeted by shock and outrage by progressives and liberals, who believed the matter had been settled by the United States Supreme Court’s decisions on flag burning [two 5-4 decisions, Texas v. Johnson, 491 U.S. 397 (1989) and U.S. v. Eichman, 496 US 310 (1990)] which held that such actions were "speech" protected by the First Amendment).
The Court’s logic in those two cases was that the flag stands for the freedom to burn it.
If one believes that the Constitution is only about liberty or license, this makes a certain amount of sense, but total liberty leads to anarchy, and no society has ever endured without an understanding that duties are as important as rights.
For most Americans, particularly those who have served our nation in foreign wars, the flag stands not for license, not for the right to torch or otherwise deface or destroy it, but rather for the nobility of the shared sacrifice of the men and women who have jointly endeavored to preserve our way of life.
The flag, in other words, stands, in the words of the Declaration of Independence, for our sacred honor, for the force that has held us together as a nation from the beginning.
The Flag Protection Amendment, embracing the concept of "desecration," reminds us that there are some things worth veneration, some things more important than the "inarticulate grunt" that is flag burning.
In one of his greatest lapses of judgment, the great conservative icon, Antonin Scalia, failed to understand this, and he made up the fifth vote in the majority of the two flag-burning cases. Here is a striking instance in which Donald Trump proves to be the more solid conservative theorist.
The Flag Protection Amendment, though embraced by a substantial majority of the American people, has failed repeatedly in Congress, because of the appeal of the sort of First Amendment absolutism even to some GOP senators, like Sen. Mitch McConnell, R-Ky.
Led by our president, it's now time to renew the debate over what kind of a nation we are, and whether we understand the enduring principle that respect, self-sacrifice, and duty are more important than unbridled license.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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