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Ed Driscoll

The Constitution and its Discontents

January 5th, 2011 - 3:50 pm

As John Hinderaker of Power Line notes, the New York Times—as if there was much doubt—admitted that they’re really not big fans of the Constitution:

Needless to say, the Times did not adopt a similarly surly attitude in January 2007, when Nancy Pelosi took over the helm in the House. The editorial continues:

The empty gestures are officially intended to set a new tone in Washington, to demonstrate — presumably to the Republicans’ Tea Party supporters — that things are about to be done very differently. But it is far from clear what message is being sent by, for instance, reading aloud the nation’s foundational document. Is this group of Republicans really trying to suggest that they care more deeply about the Constitution than anyone else and will follow it more closely?

Well, yeah. Actually paying attention to the Constitution would be a change. But now the Times shows its true colors:

In any case, it is a presumptuous and self-righteous act, suggesting that they alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation. Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.

Presumptuous to read the Constitution out loud? Seriously? And, in fact, the founders didn’t leave the Constitution “open to generations of reinterpretation;” they provided for the document to be changed by amendment. But most revealing is the Times’ hauling out the old three/fifths chestnut, much beloved by liberals who despise the Constitution. Never mind that the point of that provision, insisted upon by representatives of the free states, was to limit the influence of pro-slavery states in the House. This is, actually, a good illustration of how the Constitution has changed through amendment rather than “reinterpretation.” Once the slaves were freed during and after the Civil War, the 14th Amendment provided that the House would be “apportioned among the several States according to their respective numbers, counting the whole number of persons in each State….” So the paper’s snarky aside is entirely misplaced.

To be fair though, like the Torah, the Constitution is more than 100 years old, and thus can be confusing to some:

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.

And of course, Young Ezra Klein and the old Gray Lady weren’t the only MSM figures to drop the mask this week:

And these were all items before Speaker Boehner took the gavel today. So from that perspective, it was well worth it to goad the MSM into admitting, as Don Surber recently wrote,”For 8 years, the Left’s railed against Bush shredding the Constitution, a phrase which came to mean nothing. Like the Boy Who Cried Wolf, the Left cried shredding the Constitution once too often.”

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