The new Republican majority read the Constitution on the floor of the House of Representatives this week for the first time in our nation’s history, bunching panties across the all across the left side of the political spectrum. As Dana Milbank pointed out in his column on the 6th, there was controversy about which “version” of the Constitution to read. Democrats presumed that Republicans would read the original version of the Constitution, including the 3/5s provision and others that have since been stricken by Amendments. (He also points to Prohibition—itself created by an amendment that was later reversed by another amendment—in the “original version” of the Constitution, but I’m not here to ridicule Dana Milbank today. At least not exclusively.) Of course, Republicans read the Constitution as it applies to them today, which is the only relevant copy of the text because our legislators aren’t time-traveling cyborgs—except Nancy Pelosi, who is now officially more botox than woman.
It’s not a bad gimmick by the liberal partisans to score points with their constituencies. In addition to reminding black voters that the Founders were racist, (nevermind that the 3/5s clause proves precisely the opposite) it gave liberal commentators like Milbank cover to dredge up the old saw that the Constitution is a “living document”—as though conservatives are opposed to amending the Constitution. Let me crystallize the conservative position: we are all in favor of a living document. We are not in favor of an evolving interpretation of a static document which hasn’t changed since 1992.
This does bring up a discussion that the right needs to have amongst itself: what degree of reverence is appropriate for the Constitution? It is, along with the Declaration of Independence, one of our founding documents. It is the exclusive source of our legal rights, and an integral part of the American identity. It is what our leaders swear to uphold and protect. It is the acorn from which the tree of liberty grew. We owe so much of our prosperity to the Constitution, but do we also owe to it our failings?
Over the past hundred years, government in America has exploded in size and scope in opposition to what we as Conservatives view as the intent of the Constitution and its framers. The evidence that the Founders preferred limited government is overwhelming. Yet we as limited government conservatives can’t reconcile these arguments with the steady march of state-centric progressivism. Obamacare and FinReg are the two most recent and egregious examples, but every last vestige since the Progressive Era in the 1920s runs against the intent of the Constitution, if not its text. The unforgivably broad interpretation of the commerce clause to permit the federal government to meddle in just about any economic activity is out of control. Our country is founded on the notion of equality in the eyes of the law, yet our lawmakers quibble about whether or not to levy taxes directly against on minority or another, dividing us along arbitrary lines in income. Tax deductions are granted to those who engage in favored economic activity; equal protection yields to the politics of favored constituencies.
We have been pushed so far left, that these violations of the Constitution as intended have become a commonplace part of what governing entails. We can look, recently, to the framework surrounding of the debate over extending the Bush tax cuts to see how skewed our national debate is towards government power. Inequality between tax rates for the wealthy and the poor already exists; Republicans permitted the argument to devolve into how wide that gulf should be. In what way do our founding principles allow the government to levy taxes solely against a certain class of citizen? The Sixteenth Amendment authorizes it. Does that make it right?
The typical line from the right is that this is the result of activist judges and left-wing ideologues imbedded in a power-hungry government. That’s not wrong, but it conveniently absolves the Constitution from criticism. But the Constitution is responsible, in part, for establishing institutions with the teeth to defend it. Has the Constitution given the judiciary too much power or too little? The problem is that the right continues to view this exclusively as a problem in execution: bad judges, corrupt politicians, and uninformed voters. That may be true, but is it productive?
At some point, the system needs to be blamed. The individual mandate of Obamacare is an egregious expansion of government that far surpasses the individual rights Americans should expect. The issue is important enough that the Supreme Court has no choice but to take the case when it finally meanders its way through an arduous appeals process. This will be an extremely important case, and not just because a new entitlement program of questionable merit is on the block. It provides the Supreme Court the opportunity to hack away at the commerce clause. Inversely, it also gives them the opportunity to permit Congress any action, regardless of Constitutional authority.
We need to decide what the goal is: ought conservatives work to change the Constitution or work within it?
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