Q: Mr. Keene, if you can start out talking about the major tenets of conservative political philosophy, and sort of lay out what those are for people who may not be familiar with conservative politics.
A: Well there are a lot of different strains within the conservative movement, but I think the area of agreement is that most people in the modern context who describe themselves as conservatives hold to a belief in a limited government; believe, with Jefferson, that a smaller government is better and that government that is closer to the people is better than government at a distance. Conservatives tend to believe in the free market and in individual freedom and look to the founding documents as the guarantors of that within our society.
Q: We’ve talked a couple people at the Cato Institute in the course of doing this documentary, about the doctrinal differences between libertarians and conservatives that…
A: Well, I guess the American Conservative Union, which I chair and which is the oldest sort of mainstream conservative organization founded back in 1964, represents the movement in its broader context. Within that movement, there have always been different strains. The libertarians, for example, what we used to call the ‘traditionalists’, now more or less called ‘social conservatives’ or ‘religious conservatives’. There are economic conservatives, and there are national defense conservatives. So the interesting thing though, is, as I say, it’s this belief that the smaller government is the binding that holds all these people together. The interesting thing is that for more than thirty years we’ve run a national conservative conference in which all of these different groups participate in one way or another. And at these conferences we asked a series of questions to sort of get a sense of where the attendees are coming from. And the balance between these different factions within the movement has not changed over thirty years. And at different times, different ones of them will sort of dominate the public discussion because of different kinds of issues that might come up.
And yes, there are differences. I think the libertarians, the more extreme libertarians who represent that strain of conservatism which is most hostile to government power and is the strongest in the sense of its belief that the government should do little if anything, often runs up against others who would, either in limited or less limited ways, utilize the government or government power to accomplish certain social ends. And that tension always exists. The libertarians have also been, over the years, correctly I think, leery of a strong international foreign policy and strong defense establishment, on the grounds that it’s during times of international crisis and wars that the state at home tends to grow and then doesn’t diminish. Most conservatives acknowledge that fear, but oftentimes recognize the need, nonetheless, for a strong defense; and that’s one of the strains of the movement. So those kinds of tensions have always existed within our movement, as they do indeed within the larger society.
Q: We’re looking primarily at modes of constitutional interpretation, and as one look across the spectrum, conservatives are often identified with the originalist doctrine.
A: Right.
Q: Can you speak a little bit about what that is?
A: Sure I can. As I’ve said, conservatives view the founding documents, particularly the Constitution, as the best guarantee within our society that we will have the relationship between the individual and the state that we find most healthy; which will limit the state and allow the maximum sphere of activity for individual freedom. And the context of viewing the document is important. Conservatives have, generally speaking, taken the position that it means what it says; that the Founding Fathers were smart people, that they were writing a document which was designed not so much to empower government, though it creates a government, but to limit government. And that the limits and the language that they used in doing so meant something, it meant something then, it means something now. The meaning of a word can change, but that doesn’t mean that the intent of the Founders changed.
We generally view it that way, in juxtaposition of those who think that the Constitution should be viewed as something that will enable us to do whatever it is we want to do, today or tomorrow or the next day. We think that the values that underlie the Constitution are unchanging; that the importance of the privacy of the individual and the value of limited government is as important in the twenty-first century as it was in the eighteenth century. And therefore, we think that if the document is to mean anything, that you have to take it for what it is; and that it’s the strength of the document and the strength of what the Founders put down on paper, and which by and large has governed us since then, that’s allowed this democracy to exist in the form that it has for so long.
Q: One thing that seems to set apart the different strains of constitutional interpretation is the idea of unenumerated rights. And originalists have looked very skeptically at that doctrine. Can you talk a little bit about why that’s the case?
A: Well, we looked at it skeptically, because you get, during different periods - sort of the politically correct of the day tends to look at the document and say, “What the Founders really meant to do was either to protect or enable us to do what we want to do. To protect us from what we think we ought to be protected from, whether it’s hate speech; or to allow us to do what it is we want to do, whether it’s abortion or whatever,” to expand it to cover their desires. And the reason the document was developed in the first instance, the fear of the Founders was not that society is made up of bad people and good people, but that the best of people trying to do the best of things are liable to misuse too much power in ways that it shouldn’t be used. And the entire exercise of the Constitutional Convention and what went on there, was to devise a government which would prevent good people from doing bad things. And constantly the tension has been good people saying, “You know we ought to do this.” And others saying, “Well, the Constitution really doesn’t allow you to do that.” “Well it should. So we ought to interpret it, because if the Founding Fathers were here, they’d really agree with us.”
Well, they wouldn’t. And our position is if they didn’t agree with you then, they probably wouldn’t agree with you now. And that if what they had to say meant anything then, it should mean the same thing now, and you shouldn’t go reading things into it that weren’t there because they weren’t there, and they weren’t there for a reason.
Q: Yeah. The concern among conservatives about overreaching, and the creation of things that are not in the text of the document … you talk to conservatives, and many people in the conservative movement are very aware of that and very concerned about that. Can you speak to that as a motivating factor for the growth of the conservative movement? Has that been one of the … ?
A: Well concern about the judiciary - after all we are a government of three parts, the executive, the legislative, and the judiciary - and the judicial branch of government was set up and was meant to be in tension with the other branches of government. The danger to individuals comes when any branch becomes completely dominant in any particular area. We see that now in the dispute between the executive and the legislative branches over how much power the president has in national security matters. But in recent decades in particular, not only the Supreme Court but the entire federal judiciary has come to reflect an ideological belief that we think is contrary to what the Founders believed. And so that the courts have come to the position where oftentimes they are used to enable government to do things that government would otherwise not be able to do, or to bypass individuals.
Well oftentimes we find that when people go to the legislatures and they can’t accomplish a purely policy or political objective they say, “Well, maybe we’re not going to win that in the legislature. Maybe we can’t win it in a referendum. But maybe we can go to court and get the courts to do that for us.” And if that happens, you’ve got the dominance of one of the branches of government, which you shouldn’t have. And in addition to that, it’s the branch of the government which is least responsive to the people. The reason it was insulated from the people was to protect the rights, so that one interest couldn’t drive it one way or the other. But by interests using the judiciary, they find that they have an essentially non-democratic tool to accomplish policy objectives that were certainly not in the minds of the Founders; and the processes they’re using weren’t in their minds.
Q: We’ve touched on this a little bit, but it might be worth talking about specifically – that is the role of judges, and what conservatives view that to be. What sort of touchstones should judges look to to guide them in the interpretive process?
A: They should look to the Constitution, to the words of the document, and to the plain meaning of the Constitution. And they shouldn’t look to sociological studies and the kinds of things that have been used in recent days. That’s not to say that some of the things that people might want to accomplish outside of the bounds of the Constitution might not be good things. But the concept of a limited government is that you can use the government to accomplish certain things, and not other things; and that those other things, you’re just going to have to go about ordering it a different way. The Constitution does not require, for example, that the government provide healthcare. That doesn’t mean that you shouldn’t, or might not want to devise healthcare systems, but you shouldn’t ask the courts to impose that kind of a requirement on people - that’s a legislative, not a judicial function. And we’ve gotten this in many cases where people have gone to the courts to get them to take over school systems and run them, to do things that are not, properly speaking, within the judicial function.
We’ve also gotten into, you know, situations in which a liberal justice will agree with a liberal plaintiff that, “Gee, society ought to do this, and the Constitution should have meant that. The Founders should have said that, and if they didn’t, well, we’re here now to tell us how it ought to be.” Conservatives reject that. Conservatives say you have to operate within the confines of the rules that were set up, and that were set up precisely for the reason that the Founders knew people would do what these folks are doing. We don’t think judges should let them do that.
We think judges should often be in the position, when it comes to constitutional interpretation, to say, “This is what it meant and that means you can’t do this because they said you can’t; or you’re not empowered to do that; or you’re not required to do that; or you’re not protected in this area where they didn’t mean to protect you.” The Constitution can be amended. If you want to do some of these things, amend it. If you’ve got the broad consensus within the public, and essentially the amendment process, while it doesn’t put it this way, requires pretty much political consensus to accomplish the amending of the Constitution. If that kind of consensus exits, if you want to change the arrangements, the kinds of relationships that the states and its citizens have, fine, go about it. There’s a process for that, they thought of that. But they did not think that you should cavalierly go about reinterpreting things every other day just to suit your policy goals.
Q: Can you point to a couple examples of court cases that you think would demonstrate an originalist commitment, and court cases that would deviate from the originalist perspective?
A: Well, in recent days of course - I’m not a constitutional lawyer so I don’t know the names of them all - but the Commerce Clause case involving school zones and the prohibition of firearms in an area…
Q: Lopez?
A: Yes. It was not an endorsement of firearms in school zones; it was saying the Commerce Clause is designed to allow interstate commerce. You can’t take something that has nothing to do with interstate commerce and then justify it under the Commerce Clause. Now, Lord knows that courts, over the years, have done that in a wide, wide range of cases. One of the criticisms that conservatives have had is the sort of broadening of the Commerce Clause to include not commerce among the states, but to include anything. And that was a restrictive case, and of course there was an uproar about it among liberal groups within the society saying, “What do they mean? What do they mean we’re restricted?”
The other side, the expansion most infamously in recent years, might be the Kelo case, which took eminent domain, which exists and has always been interpreted under the Constitution as the right of the government to take property under certain circumstances, for public uses - usually to build a road or to do something of that sort. That you have to be able to condemn and compensate the owner of the property and take his property because the whole society benefits from a road going from point A to point B, and there’s no other way to do it because you’re sitting midway between the two points.
The Kelo case says that if government can enhance its revenues, then it can take property. We now have the situation around the country where literally thousands and thousands of homeowners are being threatened by municipalities to say that if we just take your house away from you, we can build a Wal-Mart on the property and get more tax money, or we can build a luxury condo. In Florida, you’ve got a community trying to condemn something like six thousand homes so they can turn a middle-class community into an upper-class beachfront community and enhance the revenues to the local government. Under the Kelo decision, but certainly not under the Constitution, that activity is legal. That’s a vast expansion and reinterpretation of what the Founders intended.
Q: The Commerce Clause is an academic issue that a lot of people haven’t looked at.
A: But it has very real world…all these things have real world consequences. So a lot of times the debate sounds arcane, but the consequences of the outcome of the debate isn’t arcane at all.
Q: Can you point to some of the real world consequences to broadly interpreting the Commerce Clause?
A: Well you know, prior to the 1930’s, the Commerce Clause was viewed very restrictedly by the Supreme Court, and much of what the Roosevelt Administration tried to do in the opening days of the New Deal was struck down because the Court then felt it was not consistent with what the Constitution required or allowed. There was a whole flurry of activity then, first the president decided he was going to pack the Court. That failed. There was the death of a number of justices, so the president got to appoint justices more in line with his political thinking. The interpretation began to expand, allowing much expanded government regulation. You get into situations where virtually anything in terms of government regulation can be justified in terms of the Commerce Clause; from what you put on the labels of cans, because the can might cross the state line, or all kinds of… The whole superstructure for the regulation of economic activity is basically a Commerce Clause activity. So the degree to which you expand or restrict the interpretation of that clause is the governor on just how far the government can go in making decisions that perhaps, in an earlier day, would have been left to the states or the individuals.
Q: Another provision that we’re looking at; we’re looking at the spread of debate about the Second Amendment [inaudible]…
A: Right.
Q: There’s an individual rights perspective and a collective rights perspective. Can you talk about the conservative perspective on the Second Amendment?
A: Conservatives always believe that the Second Amendment is an individual right. That the Second Amendment guarantees citizens of the United States the right to peaceably keep and bear arms - for the public defense, for their own self protection, and for their own use. And there was a school of thought, and part of the school of thought in an argument over what did we mean by ‘the militia’ in the eighteenth century. Did that mean everybody? Did it mean what we would now call the National Guard? Or what was it? And the liberals who want to restrict the Second Amendment for policy goals, they want to restrict gun ownership, or restrict the right to keep and bear arms. They’ve always said, “Well, that doesn’t protect any individual. It’s not an individual right at all. It’s the right of a militia, the National Guard, to have weapons.” And that debate has raged. Interestingly in recent days, as more and more data has come available, even liberal constitutional experts like Larry Tribe have concluded that, “No, actually the Conservatives were right, that this was an individual right, it was always an individual right, and was viewed as such.” But each side has sort of eyed each other and said this has never been interpreted by the Supreme Court and we ought to get it up there. The liberals want to make sure it gets up there with a liberal majority in the Court. And the conservatives want to make sure that there’s a majority on the Court that will read the Constitution and look at the history.
Q: One thing we’re looking at is the kind of debate, as you mentioned earlier, in recent years about the extent of the president’s authority during wartime, and how security policies enacted since 9/11 might [inaudible] rights. And there seems to be a spread of opinions within the conservative community about that. Can you sort of talk about what that range of opinion is?
A: Well I don’t know that there’s a range of opinion on what powers the president may have, under some circumstances, under the Constitution. The current controversy involves the Bush Administration’s assertion of what are known as ‘inherent powers’ under Article Two of the Constitution. Which basically is an argument that the president, the executive branch, is charged with protection of the community and protection of the very existence of the country; and that the Article Two justifies the assertion of powers, even against legislative powers to the contrary, or against the decisions of the Court, if that’s necessary for the preservation of the society. I think that is sort of a generic way to describe what’s going on. Throughout history presidents, as would be expected, have argued that they ought to have more power than other branches. The Constitution is set up so that there’ll be institutional competition and conflict among the branches to control the direction of the government, and the checks and balances are designed to use that conflict to limit the power of the government. But at no time in our history has there really been a denial that under certain emergency circumstances, that claim is true. The question is what are those circumstances, and to what extent can any president claim to justify his actions.
(Pause for technical adjustment.)
Historically, most legal scholars have recognized that the presidency can rely on these so-called inherent powers under certain circumstances and in certain emergencies. The tension has always been when should this be allowed. And the current controversy involves the assertion by the president that we are in circumstances which allow him to do this. The immediate controversy of course is the NSA wiretapping, which is contrary to the will of Congress or the policies as set down by Congress and the so called ‘FISA legislation’, passed in the seventies. And the president has indicated that he does not intend to seek warrants under FISA, because it’s complicated and because he doesn’t need to, because in prosecuting the war against terrorism he has the right to do whatever he thinks is necessary, regardless of Congress’s desire to limit those rights.
Now that argument, from a legal standpoint, is very similar to the argument that President Truman made during the Korean War, which resulted in a Supreme Court case that is probably the most important in this area, involving separation of powers. During the Korean War there was a threat and strike of the steel industry. Truman took the position that because we had troops in the field that were fighting a hot war in Korea, and because they needed steel in order to function, that closing down that industry would in fact endanger our troops in the field, and our national security. And therefore, under the inherent powers of the Constitution, he decided to seize the steel mills. That went to the United States Supreme Court, which acknowledged the existence of inherent powers, but said, “No, not under these circumstances can you do this,” and limited ways in which he could do it.
In actuality, what the president has done is very similar, for different reasons and under different circumstances; the claim is very similar to what Truman made in the fifties. The problem with it is that most people have, most people, both in government, in both parties and conservatives looking at it, is not that they don’t want the president to pursue the War on Terror, because we think that’s important. Not that we believe the president shouldn’t be able to, using the example that’s often used, grab the laptop of a terrorist in Iraq and follow it back to find out if he’s been talking to accomplices in the United States. Nobody disputes the president’s need to do that, nor do they suggest that he shouldn’t be able to. What’s troublesome is trying to justify that under the so-called inherent powers of the presidency - because that is an attempt in effect, to broaden and to set precedents that can be used elsewhere. During the initial controversy over this question, the Attorney General was asked, “While using this reasoning, could you simply wiretap or break into houses within the United States without a warrant?” And the response has been consistently, “The program we’re talking about is narrowly construed to do this.” But there’s no answer on the other side, because if in fact it is an emergency, and in fact the existence of the republic is at stake, the president could use those same inherent powers to do pretty much what he wants to do.
And so the conservative position is that you should be reluctant to think that relying on a grant of power that great is wise. If there is an easier way to do it or more justification that’s more limited, or if it can be done under existing statutes, as a lot of people believe it could be done, do it that way. If you need another law, as some have suggested, if the FISA law needs to be expanded because of differing technology or what the president needs to do, expand the law. During the initial hearings on this question before the Senate Judiciary Committee, Chairman Arlen Specter almost appeared to be begging the Attorney General, saying, “Take this to court, let’s do something. We’ll pass a law. But let’s not have a war between the branches of the government over this question.” And that’s really what’s going on in this. It’s not a question about whether you should or shouldn’t listen in to the conversations of terrorists and their cohorts. It’s a question of how do you justify activities in a time of war.
Look at the danger from the standpoint of where we are today. In every war, presidents have done things that they perhaps would not have done, looking back. President Lincoln, during the Civil War, of course suspended the right of habeas corpus. Now what he did afterwards is he went to the Congress, which was out of session when he suspended the habeas corpus, and he said, “Look, I did this because I thought it was necessary. It may have been legal. It may not have been legal. Please take a look at it.” They looked at it and they said, “Well it wasn’t but we’ll make it legal.” And they made it legal retroactively. That’s probably what a president should do under those circumstances. In World War I, as the Attorney General pointed out in his testimony before the Senate, Woodrow Wilson listened in to every conversation between any American and any foreign country. He didn’t have any right to do that, you know, there was no legislative grant of power. He did it because it was wartime. The war ended and it stopped. Maybe he shouldn’t have done it, maybe he should. There’s no evidence that they got any useful information out of that. This is the same Woodrow Wilson who at the same time was jailing newspaper editors for criticizing him under the guise of that it was at war and you couldn’t have criticism. Franklin Roosevelt did the same thing during World War II. We don’t know whether he got useable information or didn’t get useable information out of it. He also locked up, or interred, Japanese, Italian, and German Americans because he thought they might be a threat to the United States. Looking back, we thought that was a mistake. But at the time, the Supreme Court said, “No, you have the power to do it,” because it was an emergency situation. It may have been a mistake, but the power was there.
We had the same thing all the way up to today. What happens is, during a wartime situation, the structures of the Constitution are under more tension and threat than at any other time because the Constitution is designed, as I said earlier, not to empower government but to restrict government. And when you get into a wartime situation the executive branch, in trying to pursue that war, oftentimes with the acquiescence of the legislature and even the courts, says, you know, “this is not a time for niceties. This is a time where we’re fighting for our survival and let’s do what we need to do and clean it up later.” The problem is that precedents set during wartime are often used in times of peace and that we don’t always go back as far as we were, so that you get a ratcheting up of executive power over the individual. But it’s usually done, and it’s done in this instance, with popular acquiescence. Because when people are under threat, there’s always a tendency to trade their rights, their individual protection and their civil liberties, for security. And the government is always there to broker that deal.
And that’s been true historically under Republicans and Democrats, under every government we’ve ever had, during every war we’ve ever had. The president rightly points out that Bill Clinton suggested that he had the power to do what the president’s doing now - of course he did, he was the president. Every president’s demanded and asserted and claimed those kinds of powers.
Under the Constitution, the tension among the various branches keeps that kind of thing in check. It’s a little bit like the whole capitalist free enterprise system. The capitalist system is not based on the theory that businessmen are saints. It’s based under the theory that a whole lot of people, operating in their own interests, will balance each other off and perform for the common good. The theory of the Constitution is not that the people who sit in Congress are better than the people in the White House or on the bench, but that the tension among them produces a better product than would be the case if any of them had unfettered power.
Q: Is there anything that you’d like to add to this discussion that we haven’t covered yet? You know, we could talk about this all day but we have a limited time in the… [inaudible]
A: Right. I mean I think we talked about, for example, the Commerce Clause being sort of an arcane discussion with real world implications. We tend to pay lip service to the Constitution and to the importance of what the Founding Fathers did. But the survival of this country, over time, as a relatively free society and representative democracy, is not an accident. It’s something that has been the result of the arrangements that were made back in the eighteenth century. And those arrangements have worked; have worked better than any written Constitution that anyone can point to anywhere else in the world. And so it seems to me that any American who is serious about the kind of society we live in has to care about that document, and has to care about what the Founders wrote, and about the limits that they put on government, and has to look at every request or every assertion, and every demand for more governmental power, wherever it comes from. I’m not talking just about the president’s war-making authority but the eminent domain authority; every government agency wants more power to accomplish good.
Every American has to realize, first of all, that I don’t know of a nation in which a government said, “I’m going to take away your rights and freedoms to do bad things.” They always asserted that what they were doing was for your own good. And so you have to grant that that’s their motive. Their motive is not the point. The point is that in attempting to achieve their goals, are they upsetting an arrangement that has worked and can continue to work better than any other arrangement man has come to put together in the interim period? Are they threatening that?
And so my belief is that Americans should look at every request for more power on the part of the state, with an eye to the Constitution. And should look at those requests critically and say, “Is this something that’s absolutely necessary?” Because this nation became, and is the freest nation still, on the face of the earth, precisely because of those arrangements. So it’s not an academic discussion, it’s a discussion that impacts…
(Pause for technical adjustment.)
Conservatives believe the Constitution says what it means. They believe that the Founding Fathers of the eighteenth century sat down and put together a scheme that uses government - at the national level, the three branches of government; and at the federal level, with the tension between the states and the national government - to create a system, an engine if you will, that keeps government power within bounds and protects the freedom of the individual. The Constitution is all about freedom. It’s about restricting, not empowering, government. Conservatives have believed that it’s a document that has worked and can continue to work. But in order for it to work, you have to look at what they wrote, you have to look at what it says. You have to enter the discussion with the assumption that when the Constitution and the Bill of Rights for example, says, you shall make no law affecting the freedom of speech, that that’s what it means. It doesn’t mean you should make laws in this area that do, in that area that doesn’t, or that you ought to suspend that because it’s simple-minded or because times have changed.
Conservatives think that these guys were smart and that the document that they put together was a good document. It’s a document we adopted and that people looking at it - whether they’re judges or congressmen, presidents - ought to say, “You know, this is what it says, and those words mean what those words say they mean.” Now it’s fair to go back and say, “Does this word mean the same thing? Do we take its plain meaning the same as it was then?” But what it meant then was what they intended it to mean, and we ought to take it for that. And that’s what I think originalism is when you look to the Constitution.
