When it comes to the Constitution, I am a conservative-progressive. Now there are some who would say this is an oxymoronic term, how can one be both conservative and progressive at the same time. Let me explain.I am conservative, as I believe the Constitution should not be readily amended, that it should be view from the perspective of what the words say, what they mean, and our understanding of what the drafters of the Constitution intended. However, having said that, I am also a progressive, as I believe our understanding of the Constitution should be viewed not on the understanding of when the Constitution was written in the late 18th Century, but rather based on our understanding of what the Constitution means today.
As a conservative I believe in Stare Decisis (“to stand by that which is decided.” The principal that the precedent decisions are to be followed by the courts), that the courts should follow the precedent of prior decisions. However as a progressive, I believe that as conditions, which shaped precedent, have changed, then judges must reach decisions based on the conditions of today and not the past. Let me give you an example, in 1896 the Supreme Court decided in Plessey v. Ferguson that “separate but equal” public accommodations was constitutional. If Stare Decisis were rigidly adhered to the Supreme Court would have been forced to side with The Board of Education in Brown v. the Board of Education of Topeka Kansas and not with the NAACP Legal Defense Fund and the defendants they represented among them the named defendant Linda Brown.
As a conservative, I believe we should ensure that all of the Bill of Rights are regarded as fundamental law, not just those that appeal to our sensibilities. This means we must accept the II Amendments right to “keep and bear” arms as being just as fundamental as the I Amendments right of “freedom of speech.” But to understand what those rights are we must go back to the words of the drafter of the Bill of Rights, James Madison. We can argue what the term religion means in the Bill of Rights, as Congress in forwarding the Bill of Rights shortened Madison’s language. Let us consider for a moment the language of the Bill of Rights, where the I Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
With Madison’s language:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
What a difference Madison’s language would have made in the jurisprudence of our Constitution. There is no question in my mind that public prayer would not be sustained nor would we have the debates over what religion means. The clause in Madison’s language “nor shall the full and equal rights of conscience be in any manner, or any pretext, infringed.” is to me a denial of any prayer, or public profession of religion if it impacts on the beliefs of any citizen. So the prayers of Thanksgiving before the big Public High School Football Game or the Prayer of Thanksgiving before graduation at the beginning of class in public school would not be permitted. As a progressive, I believe we must sometimes return to the wisdom the ancients in order to find what the Bill of Rights means today. As a progressive I also believe that the Bill of Rights are incorporated through the XIV Amendment against the infringement by any state entity (I use the term state here to refer to any State e.g. Virginia or municipality e.g. Prince William County or the City of Manassas). As a progressive, I also believe we should view the Bill of Rights expansively so as to include rights, while not specifically mentioned, which are generally considered to be fundamental. In my mind this would include a woman’s right to choose as an extension of the right of conscience.
As a conservative I believe that our Constitution provides for a representative republic. We are not a democracy, we are a limited democracy. But as a progressive I understand that what it means to be a representative republic in the first decade of the 21st Century is vastly different that what a representative republic was in the eyes of the founders in the last decade of the 18th Century. As a progressive, I believe our Constitution has flaws, but that those flaws are not fatal, they are flaws which over time can and have been fixed. As a conservative I believe in limited government, I believe in the power of the individual to fundamentally choose how to live their lives, I do not need the state (here I use the term very expansively) to tell me how to live my life. But as a progressive I also understand there are some things the state must regulate such as saying texting while driving is a bad thing, that motorcycle riders must wear helmets. While we as individuals are free to choose when their stupid actions endanger the lives of others then the state has an obligation to protect all of its citizens from preventable dangers.
As a conservative I am leery of those who would reshape the Constitution in their progressive image, of those who would rewrite the document, of those who wish to have a new constitution. I am leery as there is a view by some in this nation, that because I am educated therefore I am more qualified to say what our government should be. As a conservative I believe in the wisdom of those men who gathered in Philadelphia some two hundred years ago to shape a document for the ages. But as a progressive I also know that as times change our understanding of the constitution changes and that we may have to be amend the constitution in order to meet the conditions of the 21st Century.
So being a conservative-progressive is not so oxymoronic after all.