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.
