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Constitutional heresies

Lexington passes along some appropriately contrarian points on the Constitutional worship that the Tea Parties have seized on:

Professor Klarman made four main points about what he calls "constitutional idolatry." They are (1) that the framers' Constitution represented values that Americans should abhor or at least reject today; (2) that there are parts of the Constitution America is stuck with but that are impossible to defend based on contemporary values; (3) that for the most part the Constitution is irrelevant to the current political design of the nation; and (4) that the rights that are protected today are mostly a result of the evolution of political attitudes, not of courts using the Constitution to uphold them.

Point (1) is surely unarguable: the protection of slavery, the restriction of suffrage and so on. Point (2): two senators per state regardless of population, restricting the presidency of a nation of immigrants to those born in America; (3) beyond Congress, the courts and the executive branch, today's political system includes a fourth branch, the administrative state, which the framers could never have imagined and which is almost certainly "unconstitutional" in many ways but which no court will ever strike down; (4) when the Supreme Court has ruled to uphold rights it has generally been motivated by changing public opinion, not by a textual study of the Constitution. Judges, Mr. Klarman says, are too much a part of contemporary culture to take positions contrary to dominant public opinion, no matter what the Constitution says.

Before people start tut-tutting me for even posting such heresies, I'd just add that Klarman is stating an obvious reality that others hide. The GOP says, "We pledge to honor the Constitution as constructed by its framers," and then promotes an amendment to change birthright citizenship. The Tea Parties are largely based on reverence for the Constitution but are simultaneously pushing for a Balanced Budget amendment. I think this sort of instrumentalist approach to the Constitution is proper, of course, but I also think people should be honest about the underlying assumptions.

Incidentally, Brad Plumer had a good piece on this a few weeks back, but it's currently behind TNR's paywall.

By Ezra Klein  | September 24, 2010; 12:49 PM ET
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Next: Cutting spending is hard, cont'd


Fair enough. But I suppose you are aware that Tea Party, GOP, Glen Beck and Sarah Palin precisely want you and Libs to engage in this debate so that everyone else forgets of the Banana Republic what we are going to become (Krugman in NYT). You may be right, but the goal is to hijack the debate in these distorted issues.

The core contribution of Tea Party is to add 'relevance of Constitution in today's world' as the new Cultural War. That is it. GOP knows that Libs and Dems generally lose all these cultural wars no matter how right they are.

But we all know Cultural Wars are 'smoke screen' so that Rich and GOP's friend continue to plunder American taxes and keep adding deficits. We all know after the joke of GOP Pledge - 'deficit reduction' is simply a code word to fuel anger of Tea Party Members, nothing else.

Posted by: umesh409 | September 24, 2010 1:06 PM | Report abuse

ezra: spelling. you're not doing it right

Posted by: popopo | September 24, 2010 1:23 PM | Report abuse

This after Scalia says women aren't really persons.

Posted by: endaround | September 24, 2010 1:25 PM | Report abuse

In regards to Professor Klarman's fourth point, everyone should read Thurgood Marshall's bicentennial speech on reference for the framers and the evolution of the Constitution.

Posted by: apr2517 | September 24, 2010 1:52 PM | Report abuse

An aspect of the Constitution and Founding Fathers 'worship' of the Tea Party and the modern self-described 'conservative' movement is how distinctly Confederate it is in its framing, memes and talking points.

The rhetoric of these groups can sometime be found--almost word for word--in the rhetoric of the Confederate movement 150 years ago.

These group also share a core tactic with their Confederate forebearers--they only offer the rest of the political process two choices: capitulation to their demands or gridlock. 150 years ago that rigid worldview had already led to violence and would soon lead to war. This latest iteration of a Confederate world view will follow the same path if it is not strongly opposed.

Posted by: dengre | September 24, 2010 2:02 PM | Report abuse

In "We pledge to honor the Constitution as constructed by its framers," who are the framers? Those that wrote the Constitution and Bill of Rights? Or does it include those who wrote subsequent amendments? If it is the former, then how do they reconcile their calls for liberty with dishonoring the 11th amendments and beyond? If it is the latter, what does it mean to honor the Constitution by eliminating amendments or adding new ones?

Posted by: meander510 | September 24, 2010 3:44 PM | Report abuse

"Before people start tut-tutting me for even posting such heresies . . . ."

Don't worry -- there's nothing heretical, or even arguably wrong, about any of that. Which is precisely why the "original intent" and "strict interpretation" arguments are so blindingly, obviously nonsensical.

In 1850 the USA was a place where slavery was legal and only white men could vote. By astonishing coincidence, the Supreme Court routinely interpreted the Constitution in ways that found nothing wrong with that status quo.

In the 1860s Congress passed the 13th, 14th and 15th Amendments, but by amazing coincidence the Court in the ensuing decades interpreted those amendments in ways that, yes, adhered to existing societal norms we would find repugnant today. And so on.

The Founding Fathers rarely agreed on much of anything, so talking about their (singular) intent is idiotic. It's like talking about the consensus intent of early Christians in the first few centuries after Christ. The Constitution is a very short document, and the Bill of Rights is deliberately drafted using vague terms like "reasonable" and "unusual." It's a flexible, living document.

It's impossible to apply the Constitution to modern problems without interpreting or analogizing to contemporary events. The founders lived in a world without electricity, cars, planes, equality, computers, advanced medicine, and a million other things we take for granted. They never said anything about any of that. Their world ended to the West at the Mississippi. It took them 6 weeks just to get to Europe - by sailboat. Not one of them, in their entire lives, ever used a flushing toilet, flipped a light switch, took a shower, watched TV, spoke on a phone, drove a car, or voted for a woman or person of color. They had no stock market investments, no 401(k)s, and no health insurance. They were great men, yes, but to rely on their opinions at the expense of anything more recent is unfathomable.

Posted by: simpleton1 | September 24, 2010 4:34 PM | Report abuse

Tut tut. Tut tut tut.

It's the Constitution as it's now written, not as originally written. You know, the one with the Bill of Rights and all those other amendment thingies?

In order to avoid arbitrariness and capriciousness, it is always advisable to have rules. That's true whether you are talking about the NFL, a corporation's employee manual, or a constitution.

Those who chafe under the restrictions of the above need to change the rules, not ignore or manipulate them beyond recognition. Those who know their desired rule changes won't achieve possible support generally seek the end run.

Posted by: bgmma50 | September 24, 2010 4:50 PM | Report abuse

Yep. Tea Partiers say (very loudly) how much they love the Constitution ... they just hate the system of government it creates.

Posted by: willNeuhauser | September 24, 2010 4:53 PM | Report abuse

Anyway, unlike you, I think that the Tea Party's desire to achieve their objectives through the amendment process as prescribed in the Constitution demonstrates their reverence for the Constitution and their faith in the judgment of their fellow citizens.

Unlike, ahem, others, who seek to achieve their ends through judicial activism and end runs like manipulation of the Commerce Clause and the 14th Amendments.

Posted by: bgmma50 | September 24, 2010 5:42 PM | Report abuse

"I think that the Tea Party's desire to achieve their objectives through the amendment process as prescribed in the Constitution demonstrates their reverence for the Constitution and their faith in the judgment of their fellow citizens."

Two questions: 1) why do we have a Supreme Court if everything is written down in plain black and white? If the answers are plain, there shouldn't be anything to debate.

2) Assuming they could be passed on a timely basis, how many amendments does the Constitution need? 100? 500? 1,000? Would you amend the Constitution every time a new scenario appeared? How do you interpret something like the phrase "unreasonable search and seizure" with respect to, say, drug-sniffing dogs in parking lots or infrared cameras pointed at homes -- things the Constitution never anticipated and the drafters never said anything about?

The Tea Party's desire to amend the Constitution doesn't show their reverence for it; it shows their ignorance.

Posted by: simpleton1 | September 24, 2010 6:17 PM | Report abuse

Klarman's second point is sort of breathtaking. The need for a bicameral legislature in which one house's membership is not apportioned by population is a strong today as it was in 1787. Regardless of one's opinion on its utility, it is certainly in no way inconsistent with contemporary American values, as many millions like how the Senate is elected. Additionally, the need for the nation's leader to have been born here, with the attendant loyalty to this country above any other, should be self-evident. This is a value probably a large majority of Americans share. ("Nation of immigrants" is a catch-phrase, but never has the majority of the American citizenry not been native-born, except possibly at the moment of the founding. Let's not use that phrase to actually conclude things.)

Posted by: wavygravy | September 24, 2010 7:10 PM | Report abuse

The Framers knew they were not writing the last word in Constitutional law, but rather what they though they could get instituted in their times. Otherwise, they would not have included the power of amendment.

They were not trying to install large government or small government, but necessary government, what would be required and sufficient to address their worries as delineated in the Declaration of Independence, and their goals as outlined in the Constitution's Preamble.

Once this was accomplished, they gave their governing document the ability to grow and change to solve the problems the future would bring, or solve the remaining problems, like slavery, that they could not deal with. The Ninth and Tenth Amendments are another statement of this intention.

First and foremost, their hope was to provide the country with the means for whatever necessary government may be needed in times to come. If the Constitution could not change and evolve, neither would the country it defined, and both would fail.

Posted by: tomcammarata | September 24, 2010 8:27 PM | Report abuse

Let's not be too quick to follow the Brits in having an unwritten constitution that can be changed at a moment's notice. The Constitution, in its aspirations, speaks for all the people, and it commits us to the enduring values of freedom and equality.

As for Klarman's arguments: we needn't turn our backs on constitutional fidelity simply because of the founding document's unforgivable compromises with slavery. There is a different kind of historical argument available to us, one that keeps the faith with constitutionalism, but that tries to redeem its grievous sins. The evil of slavery requires that we now make good on the promise of equal citizenship. See, generally, Jack Balkin, "Original Meaning and Constitutional Redemption,"

Posted by: mcnamee1 | September 24, 2010 9:05 PM | Report abuse

"Two questions: 1) why do we have a Supreme Court if everything is written down in plain black and white?" posted by the aptly named simpleton1

Where did I say anything that said everything is written down in plain black and white?

"Assuming they could be passed on a timely basis, how many amendments does the Constitution need? 100? 500? 1,000?"

I'd say it's pretty good just like it is, although we may have to choice but to pass a balanced budget amendment if our elected representatives can't stop spending us into financial ruin.

"How do you interpret something like the phrase "unreasonable search and seizure" with respect to, say, drug-sniffing dogs in parking lots or infrared cameras pointed at homes -- things the Constitution never anticipated and the drafters never said anything about?"

Oh, but the drafters said plenty.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

They didn't enumerate examples of unreasonable searches and seizures then, and there is no need to now. The principle is clearly and explicitly spelled out.

Posted by: bgmma50 | September 25, 2010 10:57 AM | Report abuse

Frederick Douglass used to think he was against the Constitution and joined several northeastern liberals in a group fighting it.

Then he sat down and read it. After he did that he became a champion of the document.

Its a great story---I urge you to look into it.

Posted by: FastEddieO007 | September 25, 2010 6:16 PM | Report abuse

Obama apparently read the Constitution and called the rights enumerated in the Constitution "Negative Rights".

Posted by: FastEddieO007 | September 25, 2010 6:18 PM | Report abuse

The "original" Constitution did not include the "Bill of Rights" - the first 10 amendments. They were added shortly after.

Posted by: mcdonalsherry | September 27, 2010 12:20 PM | Report abuse

The Constitution created in 1787 and ratified in 1788. The Bill of Rights created in 1789 and ratified in 1791.

Posted by: mcdonalsherry | September 27, 2010 12:33 PM | Report abuse

Mr. Klein,
I disagree with your basic premise, but reading point #2, (about 2 senators/ state and natural born citizenship requirement for the Presidency) made me wonder if we were to start all over again would you have a bicameral legislature? And if so, how would you apportion it in a way that would make it any different from the House of Representatives? And, I can understand the point about the requirements for President, but if we were to start anew, what requirements would you put in?

Posted by: jnewman418 | September 27, 2010 4:04 PM | Report abuse

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