Liberalism's Frail Constitution

Liberalism's Frail Constitution
By W. James Antle, III on 1.10.11 @ 6:10AM

When the new Republican majority in the House decided to kick off the legislative session by reading the Constitution, the liberal reaction was instructive. Some accused Republicans of "hijacking" a shared national document for narrow partisan purposes. A few agreed with syndicated columnist E.J. Dionne: "There is nothing wrong with reading our Constitution as part of the new Congress' debut. It's a good Constitution."

But most liberals treated the sight of congressmen reading aloud from the Constitution -- which they take an oath to uphold -- as a bizarre spectacle, an oddity somewhere between an exotic tribal ritual and a deviant sex act. Perhaps pairing the Constitution-reading with deviant sex acts would have increased liberal approval.

Or perhaps not. In a post titled "The Cult of the Constitution," Time's Alex Altman complained that "the fetishizing of the Constitution is unsettling." He was joined by Michael Lind, who rehashed the usual smears of those who disagree with liberals as being the "political heirs of the Confederates and the segregationist Dixiecrats" in a piece titled bluntly, "Let's stop pretending the Constitution is sacred."


Slate's Dahlia Lithwick repeated the argument that constitutionalism is some kind "fetish," saying that when it comes to a strict interpretation of the Constitution, Tea Party activists should be careful what they wish for: "The Framers were no more interested in binding future Americans to a set of divinely inspired commandments than any of us would wish to be bound by them."

The Nation's John Nichols pointed to some stumbling and fumbling by congressional Constitution-readers, including text that was left out of the public reading. Nichols writes that the latter includes "the section that bars the establishment of monarchies and other forms of dictatorship." At your next local "Tea Partisan" rally, to borrow Nichols' phrase, ask how many people in attendance are seeking to create state-level monarchies, much less actual dictatorships.

Even Dionne charges that the Tea Party "has treated the nation's great founding document not as the collection of shrewd political compromises that it is but as the equivalent of sacred scripture." He continued, "An examination of the Constitution that views it as something other than the books of Genesis or Leviticus would be good for the country."

Nearly all this commentary misses the point. The argument isn't that the Constitution is perfect or the equivalent of Scripture. It was, as liberals are fond of pointing out, a document written and ratified through a political process, the product of compromises between Framers with different opinions on some important questions, much like any other document that could be devised through such a process.

The argument is that the Constitution is the law. The federal government must obey the Constitution because constitutional government is, in the American Republic, the only form of lawful government. Which brings up the next point: the Constitution may not be an exhaustive list of policy prescriptions that the Framers would have viewed as correct, but it is an exhaustive list of the powers of the federal government.

"The powers delegated by the proposed Constitution to the federal government are few and defined," James Madison wrote in the Federalist No. 45. "Those which are to remain in the State governments are numerous and indefinite." Madison penned these words to address the concerns of those who felt the Constitution authorized too powerful a central government. But there was no real disagreement that by ratifying the Constitution, the American people were delegating the powers enumerated therein to the new federal government.

That act of delegation, and not the supposed clairvoyance of the Founding Fathers (who were nevertheless incontrovertibly several cuts above today's political class), is why the Constitution is binding. All the powers the federal government has it gets from the people, through a constitutional process requiring more consensus than elections every two years. Just as the rights of the people aren't dependent on the changing will of fluctuating majorities and pluralities, the powers of government do not change based on the desires of whichever party temporarily runs Washington.

It is precisely that understanding of the Constitution that has been under assault since at least the New Deal. Many of the flaws that existed in the original Constitution were fixed through the amendment process allowed by the Constitution itself. That is the constitutionally legitimate process by which liberals can expand the powers of the federal government to include things like national health insurance or Washington-owned automobile manufacturers.

But that requires more than simply seizing a filibuster-proof majority in the Senate for a few short months. It necessitates the same kind of national consensus that led to the ratification of the Constitution -- and all of its amendments -- in the first place. Therefore it is much easier to pretend that the Constitution is an infinitely elastic document and appoint judges who will go along with this folly.

The very people who scream the loudest about the Constitution being treated like Scripture are those who wish to treat the Constitution the way Unitarians treat Scripture. Those who are quickest to suggest that fidelity to the Constitution suggests that the Founding Fathers were perfect are the first to tout their own political genius, by saying, for example, that having government programs that aren't authorized by the Constitution is no different than having technology that didn't exist when George Washington was president.

The powers they claim are being posthumously vested in the Founding Fathers are the very powers they want for themselves. So the Republicans, who have their own constitutional blind spots, have at least performed this valuable service: they have revealed the contempt for the Constitution felt by those who have long preferred to venerate it as a "living document." It turns out their living document is really a dead letter.