Revering the living document by turning it into a dead letter.
The Onion, a popular news satire website, recently ran the following headline: “Area man passionate defender of what he imagines Constitution to be.” The story itself is a liberal send-up of a conservative Christian follower of the Tea Party movement, who among other things erroneously believes the Framers wove a clear prohibition on birth control into our nation’s founding documents.
But the article could just have easily been written as a straight news story about the late Sen. Robert Byrd. Most of Byrd’s obituaries noted that the senator was fond of carrying around a copy of the Constitution in his pocket. Yet the nine-term Democrat devoted much of his long career to making sure Congress unconstitutionally spent money on local projects that benefited his West Virginia constituents.
When Byrd decided people weren’t paying enough attention to the hallowed document, he decided it was time to declare National Constitution Day. The only trouble was that his mechanism for doing so was a federal education funding bill that was itself blatantly unconstitutional, at least if you believe in a Constitution that delegates a few defined powers to the central government.
Byrd has gone to the big Klan rally in the sky, but his idiosyncratic definition of constitutionalism lives on. In fact, it was on full display this week during Supreme Court nominee Elena Kagan’s confirmation hearings. Sen. Tom Coburn, an Oklahoma Republican, asked Kagan whether Congress had the power to require the American people to consume the recommended servings of fruits and vegetables each day.
Kagan tried to play it off with an appeal to judicial restraint, replying that what Coburn was suggesting “sounds like a dumb law” but a law’s senselessness is not by itself sufficient reason for the Supreme Court to overturn it. That’s true as far as it goes, but does the federal government have the power to regulate American diets in this fashion? Kagan did not answer the question, but her stammering spoke volumes.
Earlier Kagan argued that there was no contradiction between interpreting the Constitution based on its original public meaning and treating it as an evolving, living document. After all, the Constitution clearly requires that senators be at least 30 years old. But whether it allows for the federal regulation of bedtime is presumably buried in some penumbra.
This view of the rule of law essentially reduces the Constitution to Robert’s Rules of Order: it sets the specific procedures by which the federal government runs but does not expressly limit its powers. The doctrine of enumerated powers has effectively been repealed by an expansive reading of the interstate commerce clause.
It was not always this way. Consider: most Americans believed it was necessary to amend the Constitution to abolish slavery and impose (and also repeal) Prohibition. Both slavery and the sale of alcoholic beverages had a much bigger impact on interstate commerce than much of what the federal government regulates under the commerce clause today.
We do not revere the Constitution by avoiding 29-year-old senators while transforming a federal constitutional republic into a unitary state. A Constitution that means whatever the government says it means is not a living document. It is a dead letter. And the situational constitutionalism practiced by both parties, often with public approval, has helped kill it. But as the bills come due for a government that has grown beyond its constitutional size, millions of Americans are starting to mourn its passing and hope for its resurrection.
It will be an uphill fight to reclaim the original understanding of the Constitution, however. The Onion made one attempt at ideological balance in its spoof with their imaginary quote from the confused constitutionalist’s liberal daughter:
“Dad’s great, but listening to all that talk radio has put some weird ideas into his head,” said daughter Samantha, a freshman at Reed College in Portland, Oregon. “He believes the Constitution allows the government to torture people and ban gay marriage, yet he doesn’t even know that it guarantees universal health care.”
Dad’s radio-generated ideas are of course a caricature of the conservative position. Samantha’s are not a far cry from what is believed by liberal members of the Supreme Court. Who says the Onion is not a real news outlet?
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