Do conservatives understand the Constitution as well as they claim? A blunt question, but given the hostility to individual rights that conservatives often show, clearly a fair one.

Where does the problem lie? Certainly their chosen criterion for interpreting the law, relying on the intent of the law’s framers (originalism) finds sympathy with anyone who believes in the rule of law over a system in which judges effectively create laws through their own discretion, in effect usurping the role of elected legislators. More so do conservatives at the very least pay lip service to principles of holding the government to its carefully proscribed roles, even as they compete with their progressive counterparts to see who can legislate the most expansive novel roles of government.

Thus, does the problem lie in a misunderstanding of just what the proscribed role of the federal government is? The Constitution is fairly unambiguous on this topic — in Article I, Section 8 the explicit powers of Congress are enumerated, with powers not granted to congress being ceded to states and individuals in the Tenth Amendment. Perhaps their confusion arises from the “general welfare” clause, which states, “The congress shall have power to[…] provide for the common defense and general welfare of the United States.” However, such an interpretation is so unreasonable that even Madison had a rebuttal, writing in Federalist 41, “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?”

Perhaps the problem lies in failure to properly understand the framers’ intent. Indeed it is common to hear conservative pundits wax annoyed at the “invention” of constitutional liberties by judges or more often argue that the absence of an explicitly defined constitutional right is to imply its absence. Yet this error in reasoning flies in the face of the text of the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Such a bold statement makes clear that the rights held by ordinary citizens aren’t simply limited to those explicitly written out in the Constitution. Indeed, Framers like Hamilton adamantly opposed adding the Bill of Rights to the Constitution, fearing it would lead to the very error that conservative scholars and judges make today in assuming the Bill of Rights is an exhaustive declaration. Noting in Federalist 84: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” Not only does the addition of the Ninth Amendment into the Constitution directly imply that there are rights to be held sacrosanct outside of those listed, but it is clear that the reluctance of some Framers to even add the Bill of Rights to the Constitution has been vindicated today with every new “reasonable” restriction on civil liberties from speech to search warrants.

Even in spite of this, others would argue that the Tenth Amendment, in relegating powers to the states, gives such governments an absolute authority over their citizens. Yet nothing could be more unreasonable — ignoring for a moment the Fourteenth Amendment (guaranteeing equal protection of the laws to all citizens), consider the incoherence that this brings about. The Founders rebelled against the yoke of arbitrary and unlimited government and replaced it with a strictly limited model presumed in favor of individual rights — to then hand a blank check to states to do just the opposite entails a magnificent contradiction in terms that defies reason.

This is not to say that the model of the Framers was a centralized one — clearly, as Jefferson saw it, states should act as “laboratories of democracy.” Yet this alone does not give states free reign to oppress citizens as they please — just as much that the role of states was to act as a bulwark against federal tyranny, so was the federal government to act as a check upon the states, maintaining the presumption of liberty.

However, it is clear that if conservatives understood these basic principles that the Framers established in the Constitution, it is likely they wouldn’t be conservatives at all — they’d be libertarians.