Got a Problem with the Constitution?

By Jonah Goldberg , AEI

On Wednesday, the 112th Congress will convene with the Republicans running the House for the first time since the dawn of the Obama era. According to many commentators, Speaker-to-Be John Boehner and his crew of zealots have some very scary ideas. Chief among them: They want to make some obscure, inscrutable tract from an ancient civilization the centerpiece of their legislative philosophy. Indeed, in a move generating consternation and exasperation at MSNBC and other bastions of right-thinking, these cultists will read their perversely sacred text at the opening of the legislative session, breaking with more than 200 years of precedent.

It gets even worse. If the ideologues have their way, they will include a reference to their sacred treatise in every piece of legislation, imposing their arcane ideas on the nation.

Is reading the Constitution in its entirety at the opening of the session a gimmick? Well, sure. But it’s also symbolic, signaling the new Congress’ priorities and values.

They call their sacred text: “the U.S. Constitution.” It’s a funny thing. You’d think that the Constitution–the document every elected official, significant government appointee, soldier and naturalized citizen swears to uphold–would be like hot dogs or apple pie in our political system. Who’s against the Constitution? Yet at times, no subject seems to stew the bowels of liberals more than the idea that we should–or even can–be loyal to it.

Last week, Ezra Klein, a famously liberal Washington Post blogger, explained to MSNBC host Norah O’Donnell that the “gimmick” of reading the Constitution on the floor was ultimately silly because the Constitution was written “more than 100 years ago” and is, therefore, too confusing for everyone to understand. By that standard, Moby Dick, Pride and Prejudice, Shakespeare and the Bible are long past their expiration dates and, by implication, impossible to follow accurately. One might also point out that the recently minted phonebook-thick Patient Protection and Affordable Care Act (aka ObamaCare) is a good deal harder to decipher than the U.S. Constitution.

Meanwhile, the GOP’s promise to require that every legislation contain a clause citing the constitutional authority for it has sparked a riot of incredulity. A writer for U.S. News & World Report says the idea is “just plain wacky.” Last September, Delaware senatorial candidate Christine O’Donnell declared that “the litmus test by which I cast my vote for every piece of legislation” will be “whether or not it is constitutional.” Dahlia Lithwick, Slate magazine’s legal editor, responded, “How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?”

Leave aside the fact that it is not solely the job of the courts to determine what is constitutional. Forget that no such thing is provided for in the Constitution. You do have to wonder why senators and representatives bother swearing to “support and defend” the Constitution if that’s not part of their job description. Surely, it would strike most citizens as bizarre to suggest that legislators shouldn’t worry about whether their proposed legislation is constitutional. If on a field trip the Supreme Court goes off a cliff in a horrible bus accident, does that mean the Constitution goes with it?

Ever since the Progressive era, American liberals have been deeply troubled by the idea that the Constitution can prevent the government from doing anything the forces of progress desire. The annoying thing is they used to be honest about this. Woodrow Wilson openly expressed his contempt for fidelity to the Constitution, preferring a “living” Constitution that social planners can rewrite at a glance to fit the changing times. After his sinister court-packing scheme failed, FDR openly said we needed to supplant the “inadequate” Bill of Rights with a “second” or “economic Bill of Rights.”

Audacity of retreat

But in recent years, liberals have retreated from admitting that the Constitution is inconvenient to arguing that it is either simply irrelevant or infinitely malleable. President Obama writes in The Audacity of Hope that the Constitution is not “static but rather a living document, and must be read in the context of an ever-changing world.” On its face, this is not altogether implausible, but in reality what the living-Constitution crowd means is that when push comes to shove, we’re going to do what we think is best and figure out the constitutional arguments later, if it all.

New values

This was clearly the mind-set of the Democrat-controlled 111th Congress. “Are you serious?” was Nancy Pelosi’s response to a question over the constitutionality of health care reform. Third-ranking House Democrat Rep. James Clyburn of South Carolina famously declared that “there’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.” Rep. Phil Hare of Illinois, before he was defeated by a Tea Party-backed candidate, told a town hall meeting, “I don’t worry about the Constitution” on health care reform.

Well, exactly.

Is reading the Constitution in its entirety at the opening of the session a gimmick? Well, sure. But it’s also symbolic, signaling the new Congress’ priorities and values. In short, it will be saying, “We worry about the Constitution.” If they’re sincere, that will be a welcome break with the past.

Jonah Goldberg is a visiting fellow at AEI.

January 5, 2011 | 6 Comments »

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6 Comments / 6 Comments

  1. I’m with you, Ed Katz — and I had no trouble deciphering what you were saying. (Maybe that’s because I’m not a lawyer.)

    The New Testament sums up evil people as being “earthly, sensual, devilish”. You and I live in an evil generation, composed largely of people who live by their senses. You can bite into a Big Mac, so it’s real — and therefore relevant. You can feel sex, so it’s real: Sex with a man, a woman, a dog, no matter: If you can feel it, it’s relevant. If it feels good, it’s good, or so the thinking goes. A punch in my nose I can feel, so it’s relevant. It feels bad, so it’s bad. A punch in your nose I can’t feel, so it’s irrelevant. The Constitution? Can’t feel it, can’t read it — it’s not, like, you know, “with it”. Give me a Big Mac instead. That’s much of our society: earthly, sensual, devilish.

    Americans are Americans not because of where they live, or because of who their parents were, or because of what they think they are. They’re Americans, because of the US Constitution. Take away the Constitution, and there is no U.S.A. — there’s just so many earthly, sensual, devilish people whose world doesn’t extend beyond their noses. God keep us from such as these.

  2. After the first two paragraphs, I had to stop reading this garbage or start upchucking. This f—— Liberal ass hole is concerned about what CSNBC, the ultimate left wing rag, had to say. To say that the constitution means nothing and what the Congress of the USA has nothing to do with the constitution, is plain sicko in any language. That piece of material holds the whole point of our democracy which declares our country a republic. This item has governed our country successfully for over two hundred years. Left wing Democrats have directed our country toward Socialism from the day that Obama swore his false allegience. I have fought in war to save this country from those who would destroy her and as long as I have a breath, I will fight for her.

  3. Good post, Ted.

    One of the courses I studied at the University of Illinois at Champaign-Urbana in 1961-1962, when I was earning my bachelor’s degree in journalism and communications, was the history and development of American constitutional law. Chances are you didn’t get too deep into this preparing for a career in law in Canada. But I found it all immensely interesting, from Marbury vs Madison, which determined that the US Supreme Court would have the right to review all acts of the Congress of the United States for their constitutional grounding, on out to the cases of signficance that had been heard by the Supremes as late as the tail end of the 1950s.

    One of the new processes that the Republican-controlled House of Representatives intends to pursue is that every congressional measure should cite the specific constitutional authority of every legislative act passed by Congress. This ought to have been done as far back as two centuries ago. But it never is too late for useful governmental reforms.

    What does all this imply for Israel? First, elect better members of the Knesset. Second, reform the way members of Israel’s own supreme court are selected and seated, and make certain their power is over the legislation of the state, not every administrative detail of governnment as has been their practice in recent years. There are times when many of us think that Israel’s supreme court doubles its functions to include running interference for the Labor Party, Kadima and other socialists and less-then-complete Zionists.

    Arnold Harris
    Mount Horeb WI