Commentary Magazine


Why the Constitution — and What It Means — Matters

Having taken control of the House of Representatives, Republicans plan to begin their political journey by today reading the American Constitution word-for-word. This is simply too much for those on the left.

According to the Washington Post’s Ezra Klein, it’s a “gimmick.” The Constitution, you see, was written “more than 100 years ago” and is very, very hard to understand.

Mr. Klein’s Post colleague E.J. Dionne Jr. wrote: “My first response was to scoff at this obvious sop to the tea party movement. One can imagine that the rule’s primary practical result will be the creation of a small new House bureaucracy responsible for churning out constitutional justifications for whatever gets introduced.” (On reconsideration, Dionne says that we “badly need a full-scale debate over what the Constitution is, means and allows” — so long as we view it as “something other than the books of Genesis or Leviticus.”)

Over at Vanity Fair, the mocking continues. “House Republicans will kick-start the 112th Congress tomorrow with a spirited recitation of the Constitution, a document whose recent relevance is due largely to the ideological and sartorial interests of the Tea Party,” writes Juli Weiner.

About these responses, I have several thoughts. The first is that yesterday, the new Speaker of the House, John Boehner, swore in members of the 112th Congress. And this is the oath he administered:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

With members of Congress having just sworn to support and defend the Constitution, it’s not at all clear why reading its text should give rise to such ridicule. Except, of course, if you don’t take the Constitution all that seriously; and especially if you consider it to be an obstacle to your ambitions. In that case, the game is to mock and sneer at those who attempt to reconnect American government to its founding charter.

For many modern-day liberals, the Constitution is, at best, a piece of quaint, even irrelevant, parchment. As Jonah Goldberg reminds us in his excellent column:

“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.

At the core of the differences between contemporary liberals and conservatives, then, is the power of the federal government in our lives. The Constitution was designed as a check on the power of government, done in order to protect individual liberties. The Founders designed a federal government with limited, delegated, and enumerated powers, a theory of government that conservatives embrace and consider paradigmatic. (How that theory works itself out in practice is, of course, not always clear.)

The progressive/liberal disposition, on the other hand, believes that this view of the Constitution is obsolete and unwise; it is constantly, even relentlessly, looking for ways to increase the powers of the federal government (witness the Patient Protection and Affordable Care Act of 2010). In order to achieve this, the Constitution needs to be ignored or, better yet, re-invented as a Living Constitution, constantly evolving, morphing from age to age, interpreted in light of the “evolving standards of decency that mark the progress of a maturing society.”

But as Justice Antonin Scalia has written, “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei [“all things are in flux”] is not a sufficiently informative principle of constitutional interpretation.”

When determining when and in what direction the evolution should occur, Scalia asks:

Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.

For those on the left, the answer to Scalia’s question is: The Constitution means whatever we say it means. And in order for this subjective, ad hoc interpretation to prevail, the left must control the levers of political and judicial power.

There is an effort today to reassert the primacy of the traditional, rather than the Living, Constitution. Liberals understand this, which explains why they are reacting in the manner they are.

The controversy about members of the 112th Congress reading the Constitution is not really about that; it is about something much deeper and more significant. It has to do with how we understand and interpret our charter of government, the product of what John Adams called “the greatest single effort of national deliberations that the world has ever seen.” I suspect that this debate, which conservatives should welcome, will only intensify.

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