Cover of Time Magazine, July 4, 2011
Eight months ago in “America’s Holy Writ” I responded to an Andrew Romano article published in Newsweek magazine. I actually suggested that Tea Partyers read the Romano article because, to an extent, it’s criticisms were on target.
Timed for release on the Fourth of July, Time Magazine has now unleashed it’s managing editor, Richard Stengel, upon those unworthy few who would defend the ideas originally embodied in the constitution. The title of the piece, “Does It Still Matter” could equally apply to the piece itself.
I’d like to take a moment to reply to Stengel even though I don’t recommend his article as I did Romano’s. Stengel doesn’t even give the Tea Partyers a fair hearing, preferring to caricature most of their ideas rather than trying to argue against them. This is most unfortunate since I had high hopes for an article written by a man characterizing himself as having run “the National Constitution Center in Philadelphia.” This is legitimate background and the article therefore promised to be an even better and more informed read than Romano’s.
Let me first set out a principle which, to me, debunks the entire premise of Stengel’s piece which is never mentioned by Stengel. The US Constitution forms the sole legal basis for the existence of the federal government and the role of that government in our lives. To me, that makes it seem kind of important and not at all irrelevant. But for the existence of the constitution, the exercise by the federal government of any power over the American people or even over the states would be, very simply, illegal. The constitution cannot be irrelevant until either the federal government no longer exists or the constitution is replaced by something else legitimating federal power. Stengel never really admits his true agenda. He assumes without stating that the constitution is merely an ancient symbol which “unites” us rather than a legal instrument from which any and all federal power flows.
Stengel’s very first paragraph telegraphs what he is going to do. He starts by listing a few modern developments of which the drafters could not have been aware and in so doing suggests that the framers of the constitution would be unable to make any sense of these developments under their little ol’ constitution, to wit: World War II, DNA, Sexting, Television, Miniskirts, Collateralized debt obligations, Computers, Antibiotics and Lady Gaga. His first direct assault is on the father of the country, George Washington. Says he, Washington was ignorant of powered flight therefore suggesting that drones over Libya and the use of GPS to aim missiles would raise questions of war and peace which would just be beyond him. Stengel implies that familiarity with old style cannon balls could never have prepared Washington for the knotty issues raised by technology. Without taking a breath he follows the idea of Washington’s dullness with the idea that the framers didn’t know about health insurance or even “germ theory.” His suggestion, Congress’s power to regulate interstate commerce can be used to force each of us to buy health insurance and, although mystified by the product, the use of this power in this way would have pleased the framers. Finally but still only in his first paragraph, Stengel suggests that Thomas Jefferson’s repulsive conduct of owning and sexually using his slaves would certainly invalidate all of his ideas about small government because it (his conduct) would likely have colored Jefferson’s view of the half black Barack Obama as President of the United States. That’s a lot of work for a single paragraph.
In his second paragraph he follows with a sop to the old guys lauding their attempts to protect democratic freedoms (of course he never mentions that these “freedoms” appear nowhere in the original constitution but were adopted later by the first congress as a double-check against misuse of federal power, these freedoms are otherwise known as the Bill of Rights). He then assassinates the characters of the founders for their “slaves as 3/5’s of a person compromise” without even mentioning the reason for that compromise. He continues with an indictment of the constitution for male only suffrage and finally winds up his second paragraph calling them “kind of crazy” to reach a compromise providing that each state, large or small, would have two senators.
Most of you already know this but for those who don’t, the 3/5’s compromise enabled the northern states to limit the representation of the southern ones in the House of Representatives to the number of their white inhabitants plus 3/5’s of their slaves. This was an indelicate compromise to be sure, but it was one which forced the south to accept fewer representatives in return for the north’s grudging agreement to allow the south to keep their slaves. Without this compromise the southern states would simply not have joined the union. A slave owning country or several countries would have remained. As to the idea of women’s suffrage, Stengel doesn’t mention that the franchise was left to the states and was not even addressed in the constititution. Finally Stengel avoids mentioning any of the reasons which underlay the apportionment of the senate at two senators per state. Does he not recall that the senate was the body in which the power of the states themselves was to be protected? Each state had an equal interest in seeing that it’s sovereignty was not impaired by an overly active federal government and therefore equal representation was appropriate. Further, to have apportioned the senate by population would have allowed states with the larger populations a larger voice and hence more of an incentive to take advantage of the smaller states, as such, when passing measures affecting the powers of the states. The role of a elected chamber based upon population was already played by the house of representatives and a second body, like the senate, would have been wholly unnecessary if the interests to be represented in that body were the same as those represented in the house. If the states were not perceived as in need of protection from a potentially intrusive federal govenment there would have been no reason for a second body in the legislature at all, much less one with two senators per state. In his “kind of crazy” remark the former “director” of the “Constitution Center in Philadelphia” indicates that he is unwilling to understand or even give voice to the rather delicately balanced structure of the constitutional government which was needed to address the interests of every group whose consent to be governed by the new federal government was needed.
After taking down the foresight and prudence of the founders Stengel heads out after the Tea Partyers, those who are supposedly fanatical about the wisdom of the founders. He correctly draws the battle lines between the “original intent” group and the “liberal legal scholars” who analyze the text to find the “elasticity” they believe the framers intended. However, after drawing these battle lines, Stengel inexplicably omits any reference to the source of the debate. Adoption of The tenth amendment, one of those ‘bill of rights’ amendments he previously thought so highly of for protecting our civil and political rights, was required as a condition of ratification of the constitution by several of the states. He simply references the existence and general terms of this debate over intent and leaves it at that. In handling the issue this way he creates a rough equivalence between the two contenders. the expansive camp and the restricted camp without addressing the merits. The tenth amendment as passed by the first congress and enacted by the states has much to say about which of the contending parties in the debate has it right because it provides that:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The intent behind the enactment of the tenth amendment is actually contained in the Preamble to the Bill of Rights, to wit:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
How did this history simply slip his mind, having been director of the “Constitutional Center?” Is it even relevant to him?
Without reference to the tenth amendment or it’s history, Stengel goes through the debates on several of the current issues currently requiring constitutional interpretation, i.e.: the dividing line between the war power of Congress and the power of the President as commander in chief of the military; the effect of the 14th Amendment’s acknowledgement that the debt of the US shall not be questioned on the debate as to whether it is even necessary to raise the debt limit; the question of whether the adoption of Obamacare is a form of regulation of commerce as contemplated by the constitution; and, finally, the question of whether the 14th Amendment’s extension of citizenship by birth in the US which was intended to confer citizenship upon former slaves should equally apply to make citizens of so-called ‘anchor babies.’
Stengel reaches some predictable results given his view of the constitution as a symbol rather than as a legal document to be construed according to the intentions of it’s drafters. Rather than intended to be stretched out of all recognizable form, the original constitution was intended to be subject to amendment as circumstances warranted and the people willed. What seems to irk Stengel and his crowd is, however, how high the bar for amendment was set by the founders. He prefers extensions of federal power by “analyzing” the language of the constitution in order to find the elasticity supposedly placed there by framers, a group still smarting from an oppressive British government which knew few boundaries to its power in the American colonies. His preference for looking at the constitition as a symbol rather than as a legal document subject to amendment is clear when he says:
We can pat ourselves on the back about the past 223 years, but we cannot let the constitution become an obstacle to a future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights
Strangely, however, at the end of the piece Stengel quotes Judge Learned Hand, to wit: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Is Stengel suggesting by use of this quote that the desire for liberty has died in the American breast? For myself, I prefer the words of a related thought expressed by Thomas Jefferson in a letter to Sam Kercheval in 1816:
Where then is our republicanism to be found? Not in our constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our constitution, all things have gone well. But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.
I agree with Thomas Jefferson in the sentiment stated. Unlike Stengel and apparently Hand, I don’t feel that yearning for freedom is dead in America. In fact, I believe that it is this yearning for liberty from the government’s intrusion in our daily lives which has given birth to the Tea Party. The Tea Party was not born out of a nostalgia for a dusty old document or for men who wore wigs or for those who held other men as slaves. The Tea Party embodies the voice of those people who stongly desire to govern their own affairs without either help from or control by the federal government and who are willing to engage in political battle in order to achieve that end.
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