A Further Perspective

Reading the Constitution

Focusing the nation's attention on some astounding facts.

By 1.12.11

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The formal reading of the Constitution in the House of Representatives is one of those events that bring a knowing smile to the face of sophisticated liberals, the sort of people who curl up next to an eco-friendly fire on Sunday morning with their hard-copy New York Times Book Review while their partner reads the New York Review of Books and most Americans are taking their children to church clinging to their Bibles and if they're lucky enough to live in the right state their guns too, though ammunition was in short supply last autumn.

The New York Times called the exercise an "empty gesture." Rep. Jerrold Nadler (D., N.Y.) called it a "ritualistic reading" and said that it was "total nonsense."

Those and other sophisticates are the heirs of Woodrow Wilson, who once compared the Constitution to "political witchcraft." "Living political constitutions," Wilson wrote, "must be Darwinian in structure and in practice." For Wilson, the Constitution was "one thing in one age, another in another."

The Constitution as Darwinian is the essence of the progressives' position on constitutional government, which is why they find the public reading so… quaint.

But the reading may focus the nation's attention on an astounding fact: we actually have a constitution, and it has -- or had -- a purpose. And not only do we have a constitution. We also have a Constitution Day.

Constitution Day (September 17) is actually an official federal holiday, though it is not observed by granting time off from work for federal employees which is a shame because the less they do the freer we are or as Milton Friedman used to put it we should be glad we don't get all the government we pay for. The act creating Constitution Day requires each educational institution receiving federal funds, which is, roughly speaking, 99.99 percent of them (though some put the figure at 99.999 percent), to hold an educational program on the United States Constitution for its students on that day, and it might be useful for one of the incoming Tea Partiers to ask Arne Duncan, the secretary of education, how rigorously his department monitors the faithfulness of the 99.99 percent, and, as the follow-up question, why the department hasn't been more rigorous in enforcing the law's requirement, assuming that its current level of enforcement is above the level of rigor mortis, but only for the purpose of embarrassing the feds and not with the intention of having them further impose their own considerable incompetence on the grantees.

Of course, not all liberals abjure the Constitution. The American Civil Liberties Union, calling itself the "nation's guardian of liberty," says it works "daily" to defend and preserve the individual rights and liberties that the Constitution guarantees -- notwithstanding that the first issue the ACLU lists on its website is the death penalty, which, even though specifically referred to in the Constitution, the ACLU seeks to abolish.

Still, the ACLU's position on the rights of the accused has not been wholly mistaken and should be considered carefully by those who believe in limited government, which includes most of those cheering the reading of the Constitution in the House of Representatives.

The point of the constitutional protections for people who have been accused by the state is to make sure that the state proves its case. And if it can't, then the accused goes free -- even if she's guilty. The reason is that the Framers, like the Tea Partiers, feared government and its power more than they feared random lawbreakers. The state is a far larger threat to our liberties than any mere criminal could possibly be. That is a point conservatives need to remember. (Of course, that is not true of terrorists: they do threaten us every bit as much as the unrestrained state, which is why we treat them as enemy combatants, not as mere criminals, and don't accord them the same constitutional protections.)

So, as the Tea Partiers and the liberals line up to trade punches, they should each pay attention to their opponents' positions. In the field of criminal law, liberals, like conservatives, do value limits on state power after all.

The New York Times also said last week: "The new House leadership says this [reading] is necessary because the health care law and other measures that Republicans do not like have veered from the Constitution. But it is the judiciary that ultimately decides when a law is unconstitutional, not the transitory occupant of the speaker's chair."

Yes, but: The Supreme Court may have the last word on what is constitutional, but Congress has the first word, which means that if it pays attention it may greatly limit the scope of the judiciary, which may cause distress over at the New York Times and among the sophisticated liberals with the knowing smiles, but even good public policy has a price.

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About the Author

Daniel Oliver is a Senior Director of White House Writers Group in Washington, D.C. He served as Chairman of the Federal Trade Commission under President Ronald Reagan.