Down with the fair-weather constitutionalists

We’ve heard a lot of platitudes about the Constitution this week. My personal favorite was Joe Biden’s description of the document as “our civic bible.” Most politicians treat the Constitution as some sort of flag: An iconic and patriotic symbol to be revered. It is a convenient symbol for them, easily worked into speeches as a substitute for apple pie, eagles soaring and other American metaphors.
Unfortunately, I believe that few politicians actually think about the Constitution. Few know its purpose, its meaning and what “respecting” it actually means. Far too often, politicians are opportunistic about constitutionalism. They proudly don the language of strict constructionism when doing so will promote their pet cause only to turn around and praise the benefits of a looser interpretation when the Constitution seems to stand in the way of their goals. They are fair-weather constitutionalists.
Think, for example, of Al Gore who complains regularly that the Justice Department’s prosecution of the war on terror has jeopardized important constitutionally-guaranteed rights. Personally, I think the former VP has a good point. Unfortunately, it is vitiated when we consider that just a few years earlier it was Gore who said that the Constitution was “a living, breathing document.” It was he who claimed that we should not strictly interpret the Constitution so as to limit government’s ability to do what seems right. His philosophy might be described as something like this: The Constitution permits policies which I feel are right but prohibits policies I feel are wrong.
Lest you think I am picking on Mr. Gore, the conservatives are just as bad. A few months back the Supreme Court struck down the national “do not call list” because it was erroneously put under the purview of the Federal Trade Commission, an agency which lacks the statutory authority to oversee such a program. The President argued that two popularly elected branches of government had made a decision and that the third should respect that decision. This is exactly the wrong way to think about our constitutional system.
We have a constitution because we DON’T think that the popular majority should always get what it wants. What if a majority of people want to disarm a minority? What if a majority wants to establish a national religion? Put someone in jeopardy of life or limb without due process? Tough. They can’t. And it is the Constitution which ensures that they can’t. As John Adams put it, ours is a nation of laws and not men.
This may mean that we have to inconvenience ourselves and do things by the book. It may even mean that policies like the “do not call list” will be delayed while we find the Constitutionally-permitted solution (which, by the way, we have in the case of the list).
Why should we inconvenience ourselves? What is the virtue of a society based on the rule of law? What if the law is bad? What if it seems like you can achieve more good in the short run by breaking the law?
To answer these questions, we must first appreciate that government has a monopoly on force. It has the legal authority to take property, arrest citizens, order certain conduct and even put someone to death. We need government to have these powers because we need it to protect us from others. But we must recognize that government’s authority might be very dangerous. As Washington put it, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.” Recognizing this, it is important that government’s power be carefully circumscribed by a strictly adhered-to constitution. It is necessary that the constitution explicitly state the powers delegated to the government so that those with a monopoly on force are not permitted to use force arbitrarily. It may even be necessary to explicitly say what powers are not given as in the prohibition on establishing religion or infringing on the right to keep and bear arms.
But notice something very important: One need not agree with everything in the Constitution to believe that the Constitution should be obeyed! I, for one, do not care for the 16th Amendment’s legalization of the income tax. Nor do I like the fact that the Constitution permits capital punishment. While my opposition to these provisions might make me support amendments to change them, they do not make me change my interpretation of the Constitution. Clearly, the Constitution permits income taxation and capital punishment (the latter is mentioned a number of times in the document). To argue otherwise is to misuse the Constitution. It is to weaken the document by finding provisions in it which are simply not there.
Today the Constitution has been severely weakened. The government no longer bothers to follow the Constitutional requirement that Congress declare war when it sends troops into combat. Since 1936, Congress has regulated labor contracts despite the fact that no such power exists in the Constitution. Since 1942, Congress has regulated commerce even when that commerce is not interstate as the Constitution requires. More recently, it has been declared Constitutional for local governments to take private property and give it to other private citizens. And the latest: An American citizen can be detained indefinitely without honoring the 5th Amendment requirement that no one be deprived of life, liberty or property without due process.
Any justice willing to stand up to this slow but ever-advancing erosion of constitutionalism would be a welcome addition to the Supreme Court. Let us hope that Judge Roberts is such a judge.

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One Reply to “Down with the fair-weather constitutionalists”

  1. A nation of laws, and not men

    There are currently two vacancies on the US Supreme Court, and Matthew Mitchell makes good on his promise to share with us some Constitutional Musings. In a post called Down with fair-weather Constitutionalists he hits the nail on the head:One

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