December 5, 2010


Meanwhile, Dahlia Lithwick and Jeff Sesol recycle Dana Milbank’s dumb criticism: “For a party (whether of the Tea or Grand Old variety) that sees the Constitution as something so perfect as to have been divinely inspired, the idea that it needs to be altered fundamentally is beyond crediting, something like putting the Fifth Commandment up to a popular referendum.” My comments on Milbank’s deep, deep misunderstanding of things would seem to apply equally here. Is it just me, or do the lefty critics just seem to be phoning it in lately?

My own take is akin to Ilya Somin’s — if a genie let me choose just one amendment to the Constitution, I don’t think this would be the one I’d pick. But the criticism of the proposal is so amazingly ignorant that I find myself warming to it despite myself.

Also, from Ann Althouse — who, like me, Somin, and Barnett, but unlike Milbank, Lithwick or Shelso, is actually a professor of Constitutional Law — “Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.” Judicial reinterpretation is okay, because in recent decades it has accorded with the policy preferences of the Gentry Class.

UPDATE: Reader Matt Tanner emails:

You ask: “Is it just me, or do the lefty critics just seem to be phoning it in lately?”

No, it’s not just you.

Maybe somewhere deep down they recognize the hollowness of their own positions; maybe they’re frustrated by their inability to accomplish anything of value with two years of Obama in the White House and substantial majorities in both houses of Congress; and/or maybe they’re dispirited because their lefty-majority festival has been ended by the American people even before it got warmed up.

Someone the other day (I wish I could remember who) noted the link between seemingly disparate events: the Heller gun rights decision and the deficit reduction commission report. In both instances, an idea not so long ago viewed as fringe — that the Second Amendment secures personal rights, and that the size and cost of the federal government is simply unsustainable (and can’t realistically be fixed on the tax side) — is now viewed as not only respectable, but correct.

Then I read George Will’s latest ( on the difference between judicial activism and judicial engagement, and how the latter may impact the claim of authorization under the Commerce Clause for the mandate in Obamacare.

If you’re in a “phone it in” mode, it’s easy enough to justify the mandate as consistent with the Commerce Clause, as the Virginia district judge did just last week. But if you’re awake and engaged, it’s not so hard to see that if the Commerce Clause is made infinitely elastic, then our constitutional system has been quietly trashed; and that if you’re going to identify a line that can’t be crossed, this is a pretty good opportunity to pencil it in.

So of course we mustn’t get cocky, but by all means let’s let the left continue to phone it in, while our side works to demonstrate that fidelity to the founders’ vision is both legitimate and healthy.

Is it too much to ask that before they snark at people for constitutional ignorance, they spend a little time reading and thinking about the Constitution themselves? Apparently, yes.

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