When I hear the term “conservative” in a modern political context, I can’t help but wonder – what exactly do they want to conserve?

One would assume a conservative in the United States would seek to “conserve” the principles upon which the Republic was founded. That would lead me to further assume that a conservative would stand up as the fiercest defender of the Constitution, not as a living breathing document, but as the instrument the framers intended. I would assume a conservative would adhere tenaciously the ideals of limited government, enumerated powers and the Tenth Amendment admonition that all authority not delegated to the federal government remains with the states and the people.

But you know what they say about assume. It makes an ass out of you and me.

Conservatives talk a good game, preaching limited government, individual responsibility, blah, blah blah.  But all of the talk floats off into the air like a comic strip thought bubble when the self-described conservative finds an issue he thinks government power can “fix.” How many “conservatives” voted for TARP? How many voted for the Patriot Act? How many supported NDAA? How many voted to expand Medicare with a prescription drug program? How many show any real inclination to phase out Social Security?

I could go on.

And on.

Modern conservatives show more interest in “conserving” the status quo of about 30 years ago than they do “conserving” the constitutional foundation of the United States. The conservative movement in America reminds me of a dinghy trailing a big sailboat. The larger vessel leads the way, cutting a new path through the water. The dingy perpetually follows behind, but always progresses forward as well, getting further and further away from the point of origin.  In the meantime, a sailor stands in the dinghy chastising the captain of the sailboat for moving forward, seemingly oblivious to the fact that they he continues to push ahead as well. He rails against the direction of the ship, all the while gradually accepting his current location – the very spot that was so abhorrent just a short time ago.

The Supreme Court’s criticism of the Environmental Protection Agency earlier this week illustrates the point. At issue, the heavy-handed enforcement of rules after the feds told an Idaho couple they can’t challenge an order declaring their future home site a “protected wetlands.”

The “conservative” members of the Court railed against the EPA. And they made some good points.

According to an AP story, “Justice Antonin Scalia assailed the ‘high-handedness’ of the environmental agency when dealing with private property, and Justice Samuel Alito described some of the EPA’s actions as ‘outrageous,’ arguing that most people would say ‘this kind of thing can’t happen in the United States.’”

The justices seemed to take issue with the way the feds enforce the wetland rules, failing to give the property owner a fair shake in challenging EPA rulings.

“You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: ‘You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to,'” Alito said. “You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.”

Chief Justice John Roberts expressed frustration with EPA fines and their chilling effect.

“Because of the administrative compliance order, you’re really never going to be put to the test, because most land owners aren’t going to say, ‘I’m going to risk the $37,000 a day,” he said. “All EPA has to do is make whatever finding it wants, and realize that in 99 percent of the cases, it’s never going to be put to the test.”

But notice that these conservative justices never challenge the very existence of the EPA regulations. They never make an issue out of the fact that no constitutional enumeration exists granting the federal government power to declare private property wholly within a state a “wetland,” off limits to development. And clearly, no such power exists. Regulation of lands within a state fall under what James Madison called the “objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State,” objects intended to remain under state control.

Nope, these conservatives accept the notion of EPA regulations as a given. They just don’t seem to like the way the feds implement them. Honestly, I’m really not even clear on what they hope to preserve. Perhaps due process?

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Here we see the analogy at work. The ship long ago left the port of constitutional fidelity and the protective harbor consisting of a division of power between the state and federal governments. The sovereignty of the states and the people fades away into an archaic concept written on yellowing parchment. The various federal agencies long ago took on a life of their own, and most Americans, even “conservatives,” accept their place in our lives as a given. With few exceptions, we no longer fight their existence, just the way they go about business.

The ship plunges forward and the conservatives on the dinghy beg, “Please, slow down.”

But it never seems to occur to them they might want to start yelling, “Stop! Go back!!”

Mike Maharrey

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