13th August 2025
There is a puddle where a serious-seeming body of thought used to be
There was once such a thing, in the United States and elsewhere, as constitutional conservatism.
This was a body of thought which provided an approach to thinking and acting about constitutional issues. It was a body of thought which, of course, would not be that shared by a liberal or a progressive, but it was a set of ideas and practices nonetheless. One could disagree with it, but it was there.
And now, it has gone.
It was dissolved into barely a puddle, like the wicked witch at the end of the film of the Wizard of Oz.
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But not long ago, it was whole and (seemingly) formidable – again like a wicked witch.
It put forward arguments on States’ Rights.
It put forward arguments against the abuses of federal government.
It was aghast at situations like the Waco siege of 1993 where federal lethal power was used against individuals.
It took precedent seriously and also the settled caselaw of the courts.
It took individual rights seriously, including in respect of due process when challenging executive power.
It took Congress seriously, in setting the parameters in what presidents could and could not do, in economic policy and in directing military action.
As a reader of a liberal constitutionalist blog, you probably would have disagreed with some or all of this conservative constitutionalism.
Yet it existed for you to disagree with.
And now, it is a puddle.
A puddle where a serious body of thought used to exist.
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We now instead have a president who wants to use and abuse lethal and coercive power to the hilt, regardless of Congressional oversight and States’ Rights. A president who wants to militarise the capital city.
A president who cannot get enough of “emergency” powers to rule by decree – for such “emergency” situations as placing tariffs on an island of penguins.
And Congress and the courts stand by, and even clap and cheer.
They could stop him, with the powers vested in them by the codified constitution of the United States.
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For there are always Trumps – the difference is what the holders of the checks and balances do to prevent Trumps (and their allies) doing as they wish.
But all those earnest conservative articulations and expositions about how the constitution would prevent the abuse of power were for nothing.
All those stout defences of States Rights and the Bill of Rights were for nothing.
There is just now a puddle.
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Can somebody please explain how the US constitution allows for the judiciary to be openly political?
At the lowest levels, judges are generally directly elected by the public. At the higher levels, they’re appointed by either state governors (state judges) or the President (federal judges), with the approval of the respective legislatures.
I’d say the deeper underlying problem is that the US Constitution was written back in the late 18th century based on theoretical considerations about governmental structures that were modern then, and many later experiences with running governments, and possible lessons taken from them, were simply never incorporated into it.
In practice no one can become president who isn’t the nominee of one of two political parties.
So a party politician nominates the federal judges.
At the state level, in many (most?) states, judges have to campaign for election. I suppose that theoretically they could base their appeal to the electorate on asserting that their knowledge of the law is superior to that of other candidates, that they’re better equipped to temper justice with mercy, etc. But it’s hard to see how the process wouldn’t in practice come down to politics.
I’d argue that what you call “conservative constitutionalism” or “constitutional conservatism” was simply a specific case of Us v Them thinking – the idea that “We” are good, and “They” are bad, and therefore, it’s especially bad when “They” do bad things to “Us”, or to people whom “We” see as a part of “Us”.
Pretty much all the abuses you list as abuses which constitutional conservatives opposed were examples of people whom they saw as a part of “Them” doing bad things to people whom they say as a part of “Us”, including Waco.
And, of course, that “Us v Them” attitude is still there – it’s just that at the moment, they see the current President of the USA as one of “Us”.
Less a comment than a question: What can other democracies learn from the US experience, and do to prevent similar abuse by a rogue leader in their countries?
My honest belief is nothing other than that you shouldn’t expect a system to save you. US system is actually pretty great at constraining abusers and concentration of power. Which is why Trump 47 is a different beast than Trump 45. He had 10 years for taking over the Republican Party and American conservatism and shaping them in his image. It’s an amazing handicap for status quo. If they still managed to lose after all this time, this just goes to show his opponents, the traditional/Reaganite GOP and the Democrats were just so weak. In a democracy, at the end of the day, you have to win elections.
When I started reading today’s blog I expected you to include a comment that a written constitution doesn’t provide any more safeguards than our unwritten (or written in many places but not altogether) constitution if the guardians don’t do anything.
Some things are now too obvious to be typed aloud.
“Every tin-pot dictator has a bill of rights” Justice Scalia (from memory) and he went on to argue that it is not the Bill of Rights but the mechanism to challenge the executive power that is important. Well that mechanism will fail if there is no will to use it. I understand the Founding Fathers were frightened of “party” and it appears they were right to be so. But it is harder to imagine a foolproof way to prevent such situations arising.
No government, no dictator, wields any power or any authority save that which the people of that country choose to give up.
However, the ability to enforce that power – to take a benevolent, in-the-service-of-the-people administrative government and turn it in to an oppressive force – requires funding. As Mayer Rothschild said, “Give me control of a nation’s currency and I care not who writes her laws…”
The ability for any government to become oppressive is enabled by the resources it has at its disposal, which is in turn determined by the funds it has at its disposal.
It would not be easy – certainly not in the UK – but I think at least a part of the solution would be one in which central government is more dependent upon regional and county councils uplifting a portion of their tax receipts, rather than the current inverse, where councils get handouts from Westminster.
The current model not only concentrates [much] more power with the UK cabinet, it does it in a way that is less transparent. Additionally, it allows the party in power in Westminster to politicise spending. I’m not sure if that was “a thing” before the Blair/Brown Labour government as I was too young to notice, but I was certainly aware that Brown, as Chancellor, redirected a great deal of revenue to Labour constituencies in the north.
The other thing we might need to consider – again in the UK, at least – is a way to foster more and better engagement in political discourse. Most US schools have a “civics” class… perhaps we could consider classes up to the year before GCSE courses start that taught the basics of what is needed to manage a nation? Subjectively, it feels like what is happening in the States is driven in part by massive disengagement from the electorate. It’s very much like Trump’s endless lying – he’s doing it so that the voters won’t believe any politician, which frees him to do whatever he wants. The only way to combat that is through education and awareness…
I would suggest that the US civics classes your comment mentions don’t appear to have been particularly successful in preventing the ‘massive disengagement’ it also mentions.
The Supreme Court, stuffed with conservative judges, turned itself into a puddle by declaring everything the President did was legal.
I don’t think they quite did that.
Anything that the president does as an official act is legal. If it is a private act, it may be illegal. But who determines the boundary between an official and a private act? The courts and, in particular, SCOTUS.
We know that, as a matter of policy, the DOJ will not charge a sitting president with a criminal offense. If the DOJ wishes to press charges against a former president, the current president would be able to quash that action. But if the current president wants to press those charges, it would be important to establish that the actions were not official duties, and the case would almost certainly end up before SCOTUS. So SCOTUS retains the power to cooperate or prevent a president from bringing criminal charges against a predecessor.
I wasn’t referring to his private acts. I was talking about his official acts as President. The ruling gives him a free hand to act unconstitutionally until Congress has had enough and reasserts itself.
“We now instead have a president who wants to use and abuse lethal and coercive power to the hilt, regardless of Congressional oversight and States’ Rights. A president who wants to militarise the capital city.”
Going to have to respectfully [partially] disagree with this observation…
What we’re witnessing now is a planned campaign, deliberately placing military forces in Democrat-leaning cities around the country, so that when Coup 2.0 is triggered in 2028/9, there is no possibility of resistance. The deployment in California was an opportunistic test – and it worked – and the Administration now knows that individual states have nothing they can do except go to court – against the absolute “black belt” master at court delays, someone who is justifiably confident that SCotUS will be careful to not issue limiting judgements until it is too late.
This is of a piece with the arrest of Mayor Ras Baraka at the New Jersey ICE facility, or mayoral candidate Brad Lander, also arrested by ICE, or the investigations started against Laetitia James, and Adam Schiff. Anyone and everyone who might potentially become a rallying point or voice to a resistance is being targeted.
This is not coincidence.
What in this comment disagrees with my observation?
I remember you once saying something to the effect that that constitutional law should never be exciting. I don’t know if ‘exciting’ is the right word here but it has certainly been dramatic.
Sadly conservative constitutionalism, passed without so much twinge of conscience from those who professed to uphold it. Maybe if they had been a little more excited for what it stood for, it might still be there? Maybe that’s wishful thinking on my part.
it does seems that too much was placed on the idea of people conducting themselves like they knew what the words: ‘Honesty and Integrity’ meant. No one considered any safeguards against a parcel of rogues in a nation. (apologies to Mr Burns. I couldn’t resist)
Constitutional law was hyper exciting during spidery Brexit troubles, including, of course, Gina Miller, who, I think, ought to have a statute of her in Parliament Square.
How do you counter people’s arguments that Trump is doing none of it and that the current system will survive him?
There is still the witch’s hate.
Hatred for Democrats fed by the continual spread of conspiracy theories since the 1990s, and weaponised by Trump’s electoral teams, that has them all anti-Americans led by satanist paedophiles (aude Gabriel Gatehouse’s ‘The Coming Storm’ and vide the central importance of the Epstein files, Trump’s Achilles heel.)
This hatred justifies all actions against them and trumps regard for normal Constitutional constraints.
Beware fascism.
Closer to our shores, I was hoping to hear your views on the Palestine Action ban under the Terrorism Act 2000…
Cheers
That has to be very carefully written and researched.
If we disagree, then it might only be by scale. When I read this:-
“We now instead have a president who wants to use and abuse lethal and coercive power to the hilt, regardless of Congressional oversight and States’ Rights. A president who wants to militarise the capital city.
A president who cannot get enough of “emergency” powers to rule by decree – for such “emergency” situations as placing tariffs on an island of penguins…”
I took away the impression that you were describing – for want of a better description – a president who delights in pressing the buttons and pulling the levers of power for the entertainment of “seeing the light come on and the bell chime” in the spirit of the best Fisher-Price commercials… In short, someone who is intoxicated in the exercise of power, without necessarily having a broader strategy to wield it.
To be clear, I don’t believe the president “plays 3-dimensional chess”, but at the same time I don’t think the events we’re witnessing are simply the actions of someone pressing buttons and pulling levers at random, just to see what happens.
I strongly suspect that the President’s over-arching goal is to, if you’ll forgive my turn of phrase, “go down in history as the greatest president in the history of the Union”. Here is someone who wants a third term, wants a Nobel Peace Prize [though that is most likely because President Obama was awarded the same and the animus is clear], who wants to have their face carved on Mount Rushmore – if necessary chipping off the existing likenesses.
The chess might not be 3-dimensional, but there’s a long game in play. I think we are _all_ underestimating the level of danger now present.
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I do think that the President has shown elements of very clear strategic thinking since winning last November. For example, I believe that his cabinet appointments were very deliberately chosen with the intent that the appointees would be “let loose” to cause as much mayhem and public outcry as possible.
I believe that the single, simple role of this cabinet is to act as misdirection, to create an endless succession of “shiny baubles” for the reactionary press to follow. This ensures that all coverage is spent dissecting an agenda set in the White House – instead of having to respond to robust challenges – but more importantly, it frees the President and his family to continue with this broader strategy – to amass as much wealth and power as they are able.
Nope, still no idea what the disagreement is with my comment! Sorry!
It’s hard, if not impossible, to divorce a legal system and constitution from its context.
If everything is viewed through a partisan, zero sum lens and if you’re not a winner you’re a loser, aren’t you always going to have this puddle problem?
It’s in the interests of the side that is winning at any given time to make up arguments that explain their primacy and unique brilliance and ensure it continues. Hence, the focus on executive power and immunities under this current regime. They make for a small puddle.
How to make the puddle into a lake? Some form of cataclysmic storm, perhaps. But it’s probably going to get worse before it gets better.
A simple answer to the question posed is that 9/11 happened. Its legacy across Western societies has been a grossly exaggerated fear of terrorism. Plenty of misguided policies have been the result, including recent missteps in this country targeting groups that do not pose a lethal threat to the general public. In the particular case of conservatism, belief in limited government has tended to go by the board. Terrorism (properly defined) causes immense misery wherever it occurs, but neither its political appeal nor its prevalence should be overstated. But as long as fear of terrorism can be exploited as a political issue, it seems likely to trump traditional conservative concerns over the dangers posed by an overmighty state.
I don’t think there’s any difficulty with defining terrorism. Our problem is that the anti terrorism law is too loosely written, and the police seem very willing to stretch their meaning.
As for Trump, his target isn’t terrorism. It is anyone who disagrees with him. He is the terrorist.
supreme court judges applying the hallowed maxim
“He may be a sonofabitch, but he’s our sonofabitch”
I remember a cartoon in which Frosty the Snowman melted into a puddle and his friends cried. But then Santa Claus revealed that when the wind of Christmas blew again, the puddle would reform into Frosty.
Since we have imagined a magical Snowman, let us imagine another miracle, a presidential election won by a Democratic candidate, a President intent on undoing the work of Donald Trump. Would conservative constitutionalism remain as a puddle on the floor, or would it rise again like Frosty, holding back executive action in its icy grip?
I think there must be a bi-partisan effort to strengthen the Constitution to avoid Trumpian abuses in the future.
Proportional representation should also be introduced; FPTP systems create political oligopolies.
The Conservative Constitutionalism in the US was largely BS. The South used states rights to defend slavery and then segregation. However, the greatest intrusion of the federal government into the rights of states was the Fugitive Slave Act. It trampled the rights of states to ban slavery by law or by constitutional clause (in VT, it was the first clause in VTs first constitution in 1777 (still in effect). Friends have a hidden portion of their basement which was used to hid slaves fleeing to Canada.
As well, it was conservatives who ran roughshod over the Bill of Rights during the McCarthy era and don’t forget J. Edgar Hoover.
I don’t think that the fact that it has collapsed now means that all the arguments of constitutional conservatism were for nothing. (Though I admit to not being sufficiently knowledgeable to mount a specific defence, not least because I’m not remotely conservative myself.)
But it seems to rely on the same logic that declares any romantic relationship that ends other than through the death of one of the participants as a failure. Something can be valuable for a time, at the same time as being imperfect and insufficient when faced with particularly challenging circumstances or bad actors, and the fact that it ceases to be valuable doesn’t negate that it ever was.
In conversation with an American school head I found that selection of new teachers, new books, new staff was done on a Buggins Turn basis – R-D-R-D – members of the board got to choose. All jealously guarded, everything is political.
Then I feel we might be seeing the result of increased professionalism in politics and the application of law to politics. Everything has become very political and a great deal of brainpower is put into ensuring advantage is scored at every opportunity. Even to the extent of forcing imbalance – so long as its your kind of imbalance.
One sees the same kind of thing with the more successful pressure groups, however unbalanced the effect the pressure groups are rewarded for more of it and no doubt punished if they don’t exert pressure. Full spectrum dominance seems the goal. Which leaves the notion of balance out in the cold. Good universities might offer a ‘Department of completely unfair and vicious pressure grouping’, I think they do but not with that title.
In such an environment those speaking for balance are guilty of diminishing the funding, influence and power of their favourite pressure group. Balance is not in favour or favor. In a free market for pressure we might expect opposing groups to develop – but that seems very slow and has a diffuse funding hinterland – its poor – so does not happen.
Which means the present system has a good way to run, the only thing stopping is is (was) the decent chaps mantra, harder to find in a vicious money grubbing political world. As for why the system is as it is I fear the reason – because there is nothing better.
Proportional representation might very well alleviate this problem.
Writing from a proportional representation country: not a chance. This just isn’t how it works. If anything, PR empowers party bosses to a greater degree, making everything more politicized, not less as individual politicians have weak mandates and are entirely dependant on being selected by higher ups. What PR does is preventing “effective disenfranchisement”, this is its silver lining.
PR also encourages compromises or greater co-operation.
That depends on what PR system you choose. Party Lists can empower party bosses. STV does not. In countries where extremists hold the balance it is a nightmare. But FPTP has worse defects than any PR system.
Is it possible, do you think, that “conservative constitutionalism” – like so many other “principles” to be found in the sphere of political discourse – is in fact nother more than an attempt at branding, at seizing or creating a zeitgeist concept.
Fully expressed, politics is vast, messy and complex [sorry, DAG, it’s a lot like the law in that respect!], but the democratic expression of politics relies upon majority consensus in order to have the influence [power] to set the direction a nation is to follow.
The fragmented political landscape in the United States comprises so many different factions [“Progressives”, “Evangelicals”, “2nd Amendment Advocates”, etc., etc.] that, in order to secure the democratic majority needed to lead the nation forward, it is necessary to build an alliance between groups that simply aren’t natural allies. (For example, the Republican movement in the US advocates for both the right of citizens to “keep and bear arms”, but also the enactment of anti-abortion policies.)
DAG’s opening question was to ask us to consider conservative constitutionalism as a principle of governance – and reading through our replies, it seems clear that we’re all responding in a way that ‘takes the question seriously’ and attempts to explore the central tenet it expresses. But how do our thoughts and answers change if the question becomes one of,
“Whatever happened to make the marketing slogan of ‘conservative constitutionalism’ toxic?”
then we might come to a different place or a different level of understanding.
I’m sure that this is a massive over-simplification at best [if not outright wrong] but when I look at the two main political movements in the US at the moment, I get the impression that the conservative/republican movement has been usurped by a small but highly influential core of extremely wealthy individuals [Musk is the obvious poster-child, but he’s late to the game and may be fleeting in impact] who have used “marketing” to draw in block votes from otherwise incompatible groups, while the Democratic party is naturally a much broader consensus limited by the desire to be all things to all people [the broad tent concept] but also by some hugely anti-democratic principles [such as the congressional party handing out committee seats based on seniority, not ability] and hypocrisy.
It’s still a valid question, but the more I read through our responses and the general principle, the more convinced I am that we’re starting in the wrong place when we think of conservative constitutionalism as a fundamental principle when it might be closer to a transitory punchline, designed to appeal to the moment.
U.S. Federalism is not a partisan doctrine. Various partisans invoke it at various times to score various political points. But except for a few fusty lawyers, nobody really believes in it any more. As an organic part of society, it probably died in the interwar period: the victim of transportation and telecommunications technologies, and a genuinely integrated national economy.
Nowadays, it’s just a tool in various legal toolboxes. It’s still an important tool, because of its structural role and states’ independent taxation authority.