Skip to comments.Constitutionalism
Posted on 01/07/2011 6:21:28 AM PST by Servant of the Cross
For decades, Democrats and Republicans fought over who owns the American flag. Now, theyre fighting over who owns the Constitution.
The flag debates began during the Vietnam era when leftist radicals made the fatal error of burning it. For decades since, non-suicidal liberals have tried to undo the damage. Demeaningly, and somewhat unfairly, they are forever having to prove their fealty to the flag.
Amazingly, though, some still couldnt get it quite right. During the last presidential campaign, candidate Barack Obama, when asked why he was not wearing a flag pin, answered that it represented a substitute for true patriotism. Bad move. Months later, Obama quietly beat a retreat and returned to wearing the flag on his lapel. He does so still.
Today, the issue is the Constitution. Its a healthier debate because flags are pure symbolism and therefore more likely to evoke pure emotion and ad hominem argument. The Constitution, on the other hand, is a document that speaks. It defines concretely the nature of our social contract. Nothing in our public life is more substantive.
Americans are in the midst of a great national debate over the power, scope, and reach of the government established by that document. The debate was sparked by the current administrations bold push for government expansion a massive fiscal stimulus, Obamacare, financial regulation, and various attempts to control the energy economy. This engendered a popular reaction, identified with the Tea Party but in reality far more widespread, calling for a more restrictive vision of government more consistent with the Founders intent.
Call it constitutionalism. In essence, constitutionalism is the intellectual counterpart and spiritual progeny of the originalism movement in jurisprudence. Judicial originalists (led by Antonin Scalia and other notable conservative jurists) insist that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries. Originalism has grown to become the major challenger to the liberal living Constitution school, under which high courts are channelers of the spirit of the age, free to create new constitutional principles accordingly.
What originalism is to jurisprudence, constitutionalism is to governance: a call for restraint rooted in constitutional text. Constitutionalism as a political philosophy represents a reformed, self-regulating conservatism that bases its call for minimalist government for reining in the willfulness of presidents and legislatures in the words and meaning of the Constitution.
Hence that highly symbolic moment on Thursday when the 112th House of Representatives opened with a reading of the Constitution. Remarkably, this had never been done before perhaps because it had never been so needed. The reading reflected the feeling, expressed powerfully in the last election, that we had moved far, especially the past two years, from a government constitutionally limited by its enumerated powers to a government constrained only by its perception of social need.
The most galvanizing example of this expansive shift was, of course, the Democrats health-care reform, which will revolutionize one-sixth of the economy and impose an individual mandate that levies a fine on anyone who does not enter into a private contract with a health-insurance company. Whatever its merits as policy, there is no doubting its seriousness as constitutional precedent: If Congress can impose such a mandate, is there anything that Congress may not impose upon the individual?
The new Republican House will henceforth require, in writing, constitutional grounding for every bill submitted. A fine idea, although I suspect 90 percent of them will simply make a ritual appeal to the general welfare clause. Nonetheless, anything that reminds members of Congress that they are not untethered free agents is salutary.
But still mostly symbolic. The real test of the Republicans newfound constitutionalism will come in legislating. Will they really cut government spending? Will they really roll back regulations? Earmarks are nothing. Do the Republicans have the courage to go after entitlements as well?
In the interim, the cynics had best tread carefully. Some liberals are already disdaining the new constitutionalism, denigrating the documents relevance and sneering at its public recitation. They do so at their political peril. In choosing to focus on a majestic document that bears both study and recitation, the reformed conservatism of the Obama era has found itself not just a symbol but an anchor.
Constitutionalism as a guiding political tendency will require careful and thoughtful development, as did jurisprudential originalism. But its wide appeal and philosophical depth make it a promising first step to a conservative future.
They need to nip the “general welfare clause” copout in the bud.
Name one of the Article I, Section 8 powers.
And if you say “commerce”, then tell us how you think your bill is needed to address a known and recognized problem occurring in commerce between the states.
The Constitution of the United States of America: Article II, Section I, Paragragh V
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. [except Obama]
(Don't flame me yet. The Bible is a sacred text inspired by God and containing all Truth necessary to eternal salvation: the COTUS is a work of men, imperfect and ultimately unperfectable, but open to amendment, and effective (when observed) to maintain a Nation for coming up on two and a quarter centuries.)
There are families who have Bibles, treasured family heirlooms handed down through generations, in which the births and marriages and deaths have been recorded in various inks with quills, steel pens, fountain pens and bics. Pressed between the pages are Grandma's corsage from the Taft High Prom of 1926; a small folded US flag with 46 stars*, provenance unknown, but Junior looked it up on the internet and says it's from 1907-1912; and a faded picture of Great-Uncle Jack, the only photo of him as an adult, taken on his 19th birthday just before he shipped out to Bataan. Such Bibles, carefully preserved, dusted weekly, touched only with reverential awe, are never opened for the sake of the words printed on the pages.
Other families have just bought fresh Bibles for everyone (even a first one for Sally Ann, who is just now able to sound out Dr. Seuss) because the Bibles bought two years ago have begun to fall apart from being opened at least once and sometimes twice a day for family and personal readings.
Which family "owns" the Bible?
Some politicians and aspirants have seen the COTUS, perhaps even the original in the National Archives, and have nodded sagely as their friends have described it as "fine for its time, but terribly out of date, technology alone has passed it by, never mind evolving political philosophy, etc. etc, etc..."
Others carry around a private copy, either printed as a booklet or as a text file on a PDA**, and refer to it when making decisions about law and government in this country. They read it, not as Mark Twain is said to have read the Bible on his deathbed "looking for a loophole", but for the plain meaning of the text. Where they disagree with it, they seek to use the amendment process, and when that fails, they quietly accept the result.
Which of these "owns" the COTUS?
*When I was about 12, I found one in a big old family Bible offered in a second-hand bookshop. The proprietor let me keep it, and it has hunk in a frame in my childhood bedroom for about 34 years.
**Mine is an HP iPAQ. No, I'm neither a politician nor an aspirant.
I have forgotten somebody please remind me of what Barry’s excuse for not putting his hand over his heart during the pledge of alliegance was. Oh yeh he is a citizen of Kenya. Nevermind.
But there are places where the one speaks to the violence done to the other.
“And it shall be, when he sitteth upon the throne of his kingdom, that he shall write him a copy of this law in a book out of that which is before the priests the Levites: And it shall be with him, and he shall read therein all the days of his life: that he may learn to fear the LORD his God, to keep all the words of this law and these statutes, to do them: That his heart be not lifted up above his brethren, and that he turn not aside from the commandment, to the right hand, or to the left
This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. And he will take your daughters to be confectionaries, and to be cooks, and to be bakers. And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep: and ye shall be his servants. And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hear you in that day.
1 Sam 8:11-18
Who’s bringing kings into it? We settled that argument sometime between 1776 and 1781.
Again, what does any of that have to do with who “owns” the COTUS? You guys are all over the map.
OK. Could have said that the first time.