Painting Ourselves Into a Corner on the Constitution

With the Eastern blizzards moving out and the fracas over the tragic shooting of Rep. Gabrielle Giffords fading somewhat, our Congress gets back to its duty of legislating.  High on its agenda is the repeal of Obama’s health care law, which will doubtless be unsuccessful, as it will stall in the Senate and would suffer a Presidential veto even if the world’s greatest deliberative body (well, it was) passed it.  Then we move on to kill the program with a thousand cuts and put our Republic further in the hole with raising the debt ceiling.  It isn’t a very inspiring agenda, really.

My book review on the USS Essex summarised an interesting look at the early days of our Republic.  We have the same Constitution then as now, an amazing feat in many ways, and we didn’t have people running around saying that the document (or the Founders’ intent) is impossible to understand, because the Founders were still pretty much at the helm and could speak for themselves.  The USS Essex was launched when John Adams was President, and sailed under the Stars and Stripes during the administrations of Thomas Jefferson and James Madison.  All of these and many others involved in the affairs around the Essex had put everything on the line to set this country on its course, both with the Declaration of Independence and both of the Constitutions this country has had.  And, as we saw in that book, many of the problems our country faced then–foreign trade, relations with Islamic and European states, and military expenditures–are still very much on our plate.

On the other hand, this country–and certainly the people who live there–are very different from the group who emerged from the Revolutionary War.  Yet we have the same controlling legal document, with some amendments.  The House and Senate still meet as they did in the Essex’s day; House members all stand for election every two years, and Senators every six (now, of course, we have direct election of the latter.)  The President has a four year term with pretty much the same enumerated powers as then, and Federal judges (including SCOTUS) are still lifetime appointments.

Mentioning the Presidency, however, brings up a key issue.  Conservatives are increasingly “constitutionalists,” which means that they think that what the President and government do should not exceed that enumeration.  Liberals, unable to place themselves in the Founder’s shoes, think that our Constitution is a “living document,” to be bent to whatever concept is their idea.  So who’s right?

Obviously a credible legal system should be operated within the confines of its constitution and statutes; if these are unsatisfactory, they should be changed either by legislation or constitutional amendment.  Any other way of doing it makes a sham of the rule of law, but that’s what we’ve been treated too all too often in these United States.  And a transparent and consistent rule of law is one of the hallmarks–and advantages–that these United States have had.  But liberals, unable to convince a sufficiently large mass of the body politic that they are right, rely on the cabal of the privileged to achieve their idea.

Sometimes conservatives can be silly about the subject of the Constitution, too.  The most egregious example of this I’ve seen was during a debate of the Republican house candidates here in TN-03.  One candidate staked his claim as The Constitutionalist, carrying the document just about 24/7.   One member of the audience asked him why we couldn’t have term limits on Federal judges.  His reply was that it would upset the balance of powers; the Constitution shouldn’t be changed.  I couldn’t bring myself to point out that the 22nd Amendment did just that on the Presidency (next month is the 60th anniversary of its ratification,) that somehow the Republic has survived it, and that this amendment was just as much a part of the Constitution as the rest of it!

So the answer to the right question is simple: the conservatives are, but…as long as same cabal of the privileged continue to get their number constitutionally nominated by the President and confirmed by the Senate, we’re going to get the same living document types of results we’ve been getting up to now.  (Whether the judiciary sees daylight on forcing people to buy insurance rather than being honest and taxing them for a benefit is still a very open question.)

And therein lies the problem.  If liberals can effectively control the government, either via the bureaucracy (empowered by broad and poorly written legislation enacted by Congress) or the judiciary, the conservatives’ options are limited.  And our system, with its checks and balances and diffuse Federal and state powers, is a hard system to turn in any direction.  If liberals can continue to use “the system” to their advantage, the conservatives’ obsession with the Constitution actually works in their favour!  If the Constitution is “the deal” and there’s no constitutional way to derail those in seats of power, what “Plan B” is there?

Here is the key point: any form of constitutionalism automatically legitimises the existing government.  Conservatives who want to delegitimise government have backed the wrong horse with constitutionalism.  It’s that simple.  In doing it this way, conservatives have painted themselves into an intellectual corner, one they’re going to find it hard to get out of when the occasion calls for it.

A clearer shot across the bow (I know everyone hates military analogies these days, but I do come from a long line of old salts) would have been for the new Congress to read the Declaration of Independence.  It is our real foundational document, it would have been a quicker read, and it would have sent the left a message that the Bill Ayers types could not have honestly argued with or ignored:

…it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

And there’s one other thing that we all need to think about: if our government at last loses control of its fiscal situation, it may not be the People’s choice to alter, abolish or establish much of anything.

Our Founders understood that the quality of the people was more important than the operating documents.  That’s the core of our problem today.  But that’s just me.  After all, I read subversive books.

One Reply to “Painting Ourselves Into a Corner on the Constitution”

  1. An interesting theory, but I would submit that we lack the collective intelligence and pure intent that our founders had. I believe we would be much better served by undoing some of the changes we have made to the existing constitution. If our senate was not popularly elected as it is today but was appointed by the states as intended by the founders to maintain a balance of power between the federal govt and the interest of the states we would be in a much better place today to take back control of our government. If we didn’t have a federal income tax the feds wouldn’t be able to buy votes with our money.


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