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Friday, December 31, 2010

Constitutional Know-Nothings

Posted December 30th, 2010

The 112th Congress has an unprecedented plan. They are going to read the Constitution-the document that each member will swear to uphold-aloud on their first day. When asked on MSNBC to comment, Washington Post writer Ezra Klein replied “It’s a gimmick. I mean, you can say two things about it. One, is that it has no binding power on anything. And two, the issue of the Constitution is not that people don’t read the text and think they’re following. The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”

Take that, foolish members of Congress! According to Klein, the Constitution is unknowable, and is only a tool for people to push through idiosyncratic policy proposals. So much for that oath.

But our Constitution’s history and origin is known. In his famous speech to the Federalist Society Annual Lawyers Convention in 1985, Former Attorney General Edwin Meese reminds us that the Constitution is not “buried in the midst of time.” It was not haphazardly written. The Constitution is a careful drafted document: the Founders “proposed, they substituted, they edited, and they carefully revised.” The Constitutional Conventions’ discussions, disputes, and compromises carefully recorded. The Father of the Constitution, James Madison, wrote comprehensive accounts of the convention. “Others, Federalists and Anti-Federalists alike, committed their arguments for and against ratification, as well as their understandings of the constitution, to paper, so that their ideas and conclusions could be widely circulated, read, and understood.” Thus, thanks to the pamphlets, letters, and well-documented debates and drafting records from the founding, the meaning of the Constitution is, in fact, knowable.

The Heritage Guide to the Constitution (published in 2005, recent enough that Klein may be able to understand it) offers a clause-by-clause explanation and analysis of the Constitution. In his opening essay, David Forte argues that “Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution–the supreme law of the land–as it was originally written.” An originalist approach to the Constitution is not for the intellectually lethargic. The Constitution is a well-crafted document meriting a particular interpretive approach: “where the language of the Constitution is specific, it must be obeyed. Where there is demonstrable consensus among the Founders and ratifiers as to a principle stated or implied in the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.” The most interesting debates then, focus on the application of constitutional principles-not on whether these principles exist. This approach does not “remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law.”

Contrary to Klein’s suggestion, when the members of 112th Congress swear to uphold the Constitution, they are taking on a great and noble task. Those who seek to use the Constitution to supply definitive policy proposals will search the text in vain. The Constitution does not purport to answer every policy question, but answers the question about how problems should be approached and solved in a democratic republic.

Members of Congress must deliberate on tough issues and are obliged to consider how proposals before them accord with the Constitution. That document is not a legislative code inextricably bound to the eighteenth century, nor is it a mirror simply reflecting the thoughts and ideas of those who stand before it. It is “the supreme Law of the Land” which they are bound by oath to support and defend.

AUTHOR:Julia Shaw

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