The achievement of those who established the United States, solidified in the ratification of our Constitution, was to conserve the individual liberty established by the English Common Law. The people who were to become the Americans believed that English liberty had been corrupted by an uncaring monarchy and aristocracy in the late eighteenth century, and for liberty to remain pristine on this continent, it was necessary to replace the monarchy and aristocracy with a government founded only on the sovereignty of the people. Liberty could still be preserved, it was thought, if the government (the greatest threat to liberty) could be restrained from the exercise of arbitrary power by two great innovations established by that 1787 document, dual sovereignty (also known as Federalism), allocating power between two competing governments, state and federal, and separation of powers among the legislative, executive, and judicial branches.
Apparently the system worked, as this nation became the richest and most powerful on the planet, although there have been periodic crises such as our Civil War, the upheavals of the nineteen-sixties and seventies, and the struggles in our own time between the Republicans, a party generally committed to preserving tradition and the original Constitutional scheme, and the Democrats, a party now committed to moving beyond what the Constitution contemplated, to a strong central government and a bureaucracy and a judiciary committed not to the preservation of liberty, but to the redistribution of resources in order to establish not a more perfect union, but the favoring of particular constituencies.
This clash of basic goals is really what the 2016 election was all about, something that was understood by Donald Trump, but not by Mrs. Clinton and her allies. Most political commentators probably missed this as well, sympathetic as most of them were to the Democrats and hostile to Mr. Trump. The simple truth is that Trump was perceived by his supporters as a Constitutional conservative, one committed to preserving the principles of restoring power to state and local governments, to reigning in a judiciary committed to formulating policy instead of following the law, and to restoring the framers’ conception of a government dedicated to preserving rather than redistributing property. How well, then, after a year, has Mr. Trump done in upholding conservative principles?
The president has actually exceeded the expectations of his supporters and has completely baffled and frustrated his critics. He has shifted the perspective of the judiciary back toward originalist constitutional principles with the appointment of Neil Gorsuch to the Supreme Court and an impressive number of appointments to the lower federal courts. He has managed to reverse many of the centralizing regulations of the federal bureaucracy established by the Obama Administration. This culminated in the repeal of the hated penalty under Obamacare which forced Americans to buy healthcare insurance they didn’t need, in order to fulfil the redistributionist aims of that legislation. The tax reform passed last week, in removing some of the fetters on reinvestment of profits and the creation of jobs in this country, should continue the extraordinary expansion in economic growth and the rise of the stock market that have been perhaps the most impressive accomplishments of the new administration.
By any objective measure the Trump administration is already one of the most successful in recent history, though the president’s poll numbers remain rather low, indeed among the lowest for a young administration in memory. This is probably due to the hostility of the mainstream media, and to the machinations of Mr. Trump’s political enemies who successfully launched the special counsel’s investigation against him for alleged Russian collusion. Fortunately, that effort seems to be foundering, now that evidence is emerging that the assertions on which that investigation was founded were manufactured by the Obama administration and by the Clinton campaign.
What is now evident is that in the battle between the conservatives and their enemies, Mr. Trump and his now firm Congressional allies, Speaker Ryan and Leader McConnell, are winning. Still, the threats to a return to Constitutional conservativism remain. The siren song of redistribution, one sung by Nancy Pelosi, Chuck Schumer, and Elizabeth Warren, who now lead the party of divisiveness and class envy, still has too much appeal. In a marvelously enigmatic quote, Brooks Adams wrote that, “With conservative populations, slaughter is nature's remedy.” By this he presumably meant that only by the wholesale destruction of those who believed in tradition and traditional values could radicals triumph. We are still somewhat more civilized than that, and the carnage and despair of Stalin’s Soviet Union, Mao’s Cultural Revolution, or Pol Pot’s Cambodia will not be repeated here. Still, even if brute force will not be used, the undermining of traditional America by a mendacious bureaucracy and an unscrupulous opposition must still be resisted. In the year to come, and in the elections of 2018, this struggle to restore the republic will continue.
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). To read more of his reports — Click Here Now.
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