Hey, NY Times, Whatever Happened to the “Living Constitution?”

This morning the NY Times has suddenly abandoned its usual advocacy of a living constitution. Instead it wants politicians in the legislative and executive branches to be constrained by what the Constitution actually says regarding separation of powers:

The constitutional claims made by the Congressional leadership on the Jefferson case seem overblown. House and Senate members are protected from arrest while going about their official business to shield them from intimidation and meddling by the executive branch in the affairs of state, not to deter law enforcement officials from doing their lawful duty to investigate possible felonies.
But members of Congress who have been politically comatose or complicit as the Bush administration built itself an imperial presidency, immune from the historical powers of the legislative branch, are up in arms. The House Judiciary Committee, which has been in the forefront of the long-running cave-in, has scheduled a hearing that the chairman has titled “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?”

Too bad the Times is so selective in wanting to follow the rules laid out in the Constitution. They should pay attention to the scholarship of James M. Buchanan:

In 1987, the United States celebrates the bicentennial anniversary of the constitutional convention that provided the basic rules for the American political order. This convention was one of the very few historical examples in which political rules were deliberately chosen. The vision of politics that informed the thinking of James Madison was not dissimilar, in its essentials, from that which informed Knut Wicksell’s less comprehensive, but more focussed, analysis of taxation and spending. Both rejected any organic conception of the state as superior in wisdom, to the individuals who are its members. Both sought to bring all available scientific analysis to bear in helping to resolve the continuing question of social order: How can we live together in peace, prosperity, and harmony, while retaining our liberties as autonomous individuals who can, and must, create our own values?

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