The recent admission that the Benghazi investigation is a partisan witch hunt is a glaring reminder that so-called "constitutional conservatives" in Congress have no idea what they're talking about.
When Kevin McCarthy proudly pointed to their success in bringing down Hillary Clinton's poll numbers, it was, as Simon Maloy wrote, “an archetypal example of the Kinsley Gaffe: a politician accidentally uttering a truthful statement.”
But it was an unusually fruitful one, both for Clinton, obviously, and for Democrats who had been battling against the charade since its inception. It validated their argument that Benghazi had already been thoroughly investigated (seven times), and Trey Gowdy's committee was purely a political exercise. With a top Republican now echoing the Democrat's claim—and getting further GOP confirmation (from Rep. Richard Hanna [R-N.Y.] and former committee investigator, Bradley Podliska)—it gave the "balance"-addicted media permission to actually report on the truth right in front of them, rather than repeatedly playing out GOP fantasies of Clinton's imminent demise.
As Maloy went on to add:
No less remarkable is the fact that McCarthy offered up the politicized Benghazi investigation as an “example” of how he would conduct business as Speaker of the House. He just put it right out there and told Sean Hannity that the McCarthy Congress will be a series of investigations aimed at hurting the Democrats’ chances of electoral success.
At one level, this was hardly surprising—the House has virtually stopped even pretending to function as a legislative body. What else are they going to do but engage in partisan warfare?
However, at another level, there's a larger point worth stressing: Using Congress, all its legal powers—and taxpayer dollars—to try to win the next election by smearing a leading presidential candidate from the other party is not just sleazy and reprehensible, it's clearly incompatible with any claim of a moral commitment to be guided by constitutional principles. The term "constitutional conservative" cannot have any defensible meaning if this is its fruit. And this is its fruit. It's been years in the making, and no so-called “constitutional conservative” has ever thought to speak out against it before. They've had their chance, and they've done nothing but support this perversion of constitutionally-granted power. They should all be profoundly ashamed.
It's one thing to realize that the term “constitutional conservative” is a mockery, a joke. But what was it supposed to mean? How and why did this joke come to be? Although the term is not new, it is new in its current usage, dating back to the Tea Party and their tri-corner hats. This latest debacle merely underscores just how superficial and mendacious the term always was from the beginning. If you believe that only Republicans are “real Americans,” a la Sarah Palin, then the term "constitutional conservative” may still make some sense. But that belief, in itself, is profoundly un-American.
Which is not to say that the term was ever believable. Before the Tea Party, arguably its most prominent articulation came from the Constitution Party, a theocratic dominionist outfit based on a denialist fantasy in flagrant disregard of America's actual godless Constitution. This absurdity was to be expected. Conservatives have always pretended to venerate the past, but it's invariably an imaginary one, dating back at least to Hesiod's mythical five ages.
In reality, they're repeatedly reinventing themselves with new venerated pasts, which is precisely how the current “constitutional conservative” vogue came about. Under Bush, conservative Republicans controlled all three branches of government for the first time since before the Great Depression. Under Bush, the American people were painful reminded what conservative governance looks and feels like—and it wasn't pretty at all. Even before the financial meltdown hit, Bush's economic record was miserable, the conservative brand was in tatters. It was time for a reinvention—the only question was, “How?”
“Constitutional conservative” answered that question—even though it couldn't quite answer the question, “What?” Everyone realize that if your recent history sucked, it made sense to focus on something completely different. Eternal principles, yeah! And here's a tri-corner hat to go with them. But what principles, exactly? That's where the problems set in.
On the one hand, serious people on the conservative side like to point to a January 2, 2009 opinion piece in the Wall Street Journal, by Hoover Institute senior fellow Peter Berkowitz, “Conservatives Can Unite Around the Constitution.” But Berkowitz's advice was wildly out of step with the mood of the GOP base at the time, temporarily demoralized after having been whipped into a frenzy by Sarah Palin, but about to be revived again with the emergence of the Tea Party (nurtured since 2002 by the Koch Brothers and big tobacco) staunchly laying claim to the same label.
“After their dismal performance in November, conservatives are taking stock, Berkowitz began, and quickly produced his broad recommendation: “[W]hile sorting out their errors and considering their options, conservatives of all stripes would be well advised to concentrate their attention on the constitutional order and the principles that undergird it, because maintaining them should be their paramount political priority.”
In particular, he said, “A constitutional conservatism puts liberty first and teaches the indispensableness of moderation in securing, preserving and extending its blessings.” Moderation? In the still shimmering afterglow of Sarah Palin mania? Is he serious???
Well, yes, he was. In fact, he was very aware of the dangers conservatives faced within their ranks... or at least some of them:
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. Down that path lies disaster.
On the one hand, he argued that social conservatives bent on pursuing an anti-gay agenda were ignoring the shift in attitudes that had already taken place. On the other hand libertarian conservatives “disgusted by Republican profligacy,” along with Bush's social conservatism,could be tempted to “entertain dreams of a coalition that jettisons social conservatives and joins forces with moderates and independents of libertarian persuasion.”
It would be a bad mistake for either bloc to pursue their pure desires, he argued—not based on principle, but on numbers:
But the purists in both camps ignore simple electoral math. Slice and dice citizens' opinions and voting patterns in the 50 states as you like, neither social conservatives nor libertarian conservatives can get to 50% plus one without the aid of the other.
Of course he went on to argue that more than convenience was involved, there was principle as well. But it was all pretty much old news from conservative playbooks past.
In contrast, the Tea Party represented something really fresh: Costumes! Tri-corner hats! “Don't Tread on Me!” flags. The one thing they were not interested in was moderation. They started with angry demonstrations, and by 2011, they were well-represented in elected circles. As historian Brian Glenn summarized:
For conservative politicians, the name [“constitutional conservative”] signals that they are identifying as Tea Party members, which means limiting government, balancing the federal budget, lowering taxes, ending redistribution from the wealthier to the poor, assigning a central position for God in the lives of Americans, even in courthouses and public schools, and asserting the right to bear arms.
Truth be told, neither version of “constitutional conservative” is all that coherent in and of itself. Sarah Palin and Michelle Bachmann's incoherence was a feature, not a bug, which made them early Tea Party icons, while Berkowitz simply pretended away the troubled history of how conservative “fusion” efforts past have never really jelled intellectually, which is why the factions fight to this day.
But these problems fade into insignificance compared to how sharply the two versions contradict each other. As Josh Marshall—a trained historian—recently noted:
[T]hough many, many things have changed to make the politiches of today almost impossible to relate to the politics of the very late 18th century, one of the main aims of the authors of the Constitution was to bring to heel the kind of folks who now call themselves 'constitutional conservatives'.
Regarding Madison and Hamilton, whom he describes as “the key movers behind the constitutional project,” Marshall writes:
Their central belief was that localism and a weak national government would prevent the United States from ever achieving greatness among the states of the world and condemn it to being the plaything or pawn of the great powers of the day. State governments, far from being the anchors or liberty or legitimacy, were obstacles to progress on almost every front. And a central aim of the constitutional project was, again, to bring the states to heel....
[I]n trying to create a strong state - stronger in key ways than many of us today would like - they were the polar opposites of today's Tea Partiers.
But the meaning of the term is even more complicated and contradictory than just that. In fact, the aforementioned Michele Bachmann was arguably far more saavy about this than most folks realized, as Ed Kilgore explained before her 2012 hopes collapsed (“The Hidden Meaning Behind Michele Bachmann’s ‘Constitutional Conservatism’”), the term allowed Bachmann to present herself as relatively reasonable to a broad voter base (shades of Berkowitz there), while still sending clear—though coded—signals of her radicalism to her core support base (Tea Partiers on steroids.) At the same time, the label helped her avoid questions dividing the social and economic conservatives, which she was saavy enough to realize (unlike Berkowitz) were best avoided entirely. Here's how Kilgore summarized it:
As a candidate who doesn’t want to get confined to a social conservative ghetto in an election year that is revolving around fiscal and economic issues—and as someone with a well-earned reputation for extremism—her strong “constitutional conservative” stance indicates, but only to those who are trained to listen*, a decidedly radical agenda that is at least as congenial to rabid social conservatives as it is to property-rights absolutists or anti-tax zealots. In short, it enables her to run as a middle-of-the-road conservative who just wants to get rid of ObamaCare and balance the budget, even as she lets the initiated know she has other, more ambitious, plans for the country. [*emphasis added]
But there's more. In contrast to thinkers like Berkowitz, Kilgore wrote, for “Michele Bachmann or Constitution-brandishing Tea Party activists” the term [constitutional conservative] “more commonly connotes an allegiance to a set of fixed—eternally fixed, for the more religiously inclined—ideas of how government should operate in every field.” And the farther down you drill into the core of fervent true believes, the more curious those fixed principles tend to become.
Take, for example, Michael Peroutka, a GOP county commissioner in Anne Arundel County, Maryland, a past leader of the League of the South, and the 2004 presidential candidate of the aforementioned Constitution Party. I wrote about Peroutka in 2014, before he was elected. Among other things, Peroutka believes that government bodies who don't act as he'd like can simply be deemed illegitimate, and be ignored. I quoted from a story by Frederick Clarkson:
The day after the primary, Peroutka issued a pronouncement that is likely to make his fellow Republicans, to say the very least, uneasy. In his regular broadcast of “The American View,” he suggested that all of the laws of the state of Maryland may be invalid, because the state legislature is an invalid body of government for having considered initiatives that, in his view, “violate God’s Law.”
“For the past few years,” Peroutka declared, “the behavior of the legislature in my home state of Maryland raises the question whether the people of Maryland may be justified in reaching the conclusion that what we call our ‘General Assembly’ is no longer a valid legislative body.
And if the case can be made that the legislature of Maryland or of your state is not a valid body, then, it follows that no validity should be given to any of its enactments.”
That's some constitutional principle! But that's only part of an intricate alternative reality version of American constitutional law. And it's only an example of a much broader tendency among those who like calling themselves “constitutional conservatives.”
A more recent example was anti-Muslim militia member Jon Ritzheimer, who posted a letter in late September, threatening to arrest a Michigan Sen. Debbie Stabenow for her support for the Iranian nuclear deal. According to Talking Points Memo:
In the letter, Ritzheimer, a former U.S. Marine, identified himself as a member of two loosely-organized militia groups — the Oath Keepers and the Three Percenters — and announced that he and "a growing number of patriots" planned to arrest Sen. Debbie Stabenow.
"She will be arrested for treason under Article 3 Section 3 of the Constitution," the open letter read.... "After we successfully detain her we will continue to move across the country and arrest everyone involved with the Iran Nuke Deal. Even the President who brokered this deal."
Now that's what I call a “constitutional conservative”! But Josh Marshall thought it worth coining a new term: “the Unicornstitution,” as he explained:
Related but by no means synonymous with the US constitution, the Unicornstitution exists as a sort of ersatz Platonic ideal form of the Constitution which exists in the ether and is ready at hand to give a big thumbs up and attaboy and 'you go girl' to whatever crazy bullshit thing you already decided to do, especially if you're really angry and stupid and fundamentally see life in America as as matter of other undeserving people taking away your stuff and your not being able to do anything about it.
This is related to a point I made earlier this year ("No. Sorry. You're not a constitutional conservative.") But it goes a bit beyond that - the desire to wrap every completely nutball idea you have onto the Constitution. Because generally because...
And so, right on cue, as the whole Benghazi charade goes up in smoke, we have a sitting member of the House who's decided to invoke the Unicornstitution to impeach Hillary Clinton for use of a private email server as soon as she's sworn in. As Sophia Tesfaye reported here at Salon:
“The day she’s sworn in is the day that she’s subject to impeachment because she has committed high crimes and misdemeanors,” Alabama Republican Mo Brooks told WAPI-AM’s Matt Murphy on Friday, citing Clinton’s use of a personal email server as secretary of state.
“It is not about emails,” Brooks insisted, “it is about how many lives she put at risk by violating all rules of law that are designed to protect America’s top-secret and classified information from falling into the hands of our geopolitical foes who then might use that information to result in the deaths of Americans.”
“It is a national security issue,” Brooks argued.“And in my judgement, with respect to Hillary Clinton, she will be a unique president if she is elected by the public next November, because the day she’s sworn in is the day that she’s subject to impeachment because she has committed high crimes and misdemeanors,” he said.
Of course the actual constitution (not the Unicornstitution) implicitly requires that one can only be impeached for conduct in office—not for prior conduct that you falsely imagine was illegal. This is not stated explicitly, because no one ever dreamed that it would be necessary. Our founders, in their wisdom, did not foresee a member of Congress as pig-ignorant stupid as Mo Brooks. They never in their wildest dreams imagined the monstrosity of “constitutional conservatism.” Which is why, of course, they drafted the Constitution so broadly, providing future legislators, executives, judges and justices with the power to act creatively in response to unforeseen developments.
Welcome to the living Constitution, friends. The liberal living Constitution. Its reason for being, in part, is to protect us from foolish “constitutional conservatives” like Mo Brooks. It exists to allow us to save ourselves from them. To act reasonably, deliberately, sanely, and wisely, when circumstances around us otherwise push us towards madness.
Now, when the blind blood-lust of power-mad “constitutional conservatives” is laid bare, it's time to reject them thoroughly, not just as individuals, but as a brand. A brand that promised some sort of substance, but only delivered baseless attacks aimed at destroying the very system of trust-worthy government it outrageously pretended to uphold. A brand that never existed in reality, but only in myth, like Hesiod's five ages.