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.
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.
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.