Posted on | June 29, 2011 | 27 Comments
“To attempt to abstract from the Preamble to the Constitution a lever for transforming it into an instrumental document is . . . to invent powers that do not exist. And it is also a transparent attempt to import the second paragraph of the Declaration — as a mandate for national self-creation, refounding — into our fundamental law. A contemporary point of reference for all such nonsense as follows from an activist view of the Preamble and Declaration is Mortimer Adler’s We Hold These Truths, a book ‘about’ the Constitution whose wweaknesses are specificed by its very title. After Adler identifies the Declaration as a ‘preface’ to the Constitution, we know how his argument will tend: that in the end that Declaration will, if allowed, swallow up the Constitution — except for the Preamble, as ideologically construed.”
— M.E. Bradford, Original Intentions: On the Making and Ratification of the United States Constitution (1993)
“We can pat ourselves on the back about the past 223 years, but we cannot let the Constitution become an obstacle to the U.S.’s moving into the future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights. The Constitution, as Martin Luther King Jr. said in his great speech on the Mall, is a promissory note. That note had not been fulfilled for African Americans. But I would say the Constitution remains a promissory note, one in which ‘We the People’ in each generation try to create that more perfect union.”
— Richard Stengel, Time magazine, June 23, 2011
Aaron Worthing identified 13 specific factual errors in Stengel’s article, but it strikes me that Stengel’s biggest mistake is the one which Bradford noted in Adler’s work: Conflating the Declaration and the Constitution in such a way that the Constitution’s limitations on federal authority are effectively voided, so as to make the phrase “a more perfect union” a mandate for endless experimentation in pursuit of egalitarian objectives.
Advocates of unlimited centralized power habitually seek to portray the Constitution as an obsolete remnant of the “horse and buggy” era, a pejorative phrase popularized by liberal proponents of the New Deal, key elements of which were struck down as unconstitutional by the Supreme Court. By the 1950s, however — after two decades of Democrat presidents — the court’s former conservative majority had been replaced by liberals, and for more than three decades the Supreme Court itself became an instrument for the expansion of federal authority.
Stengel is another one of these modernists, perceiving the Constitution’s limits as a hindrance to progress: “[W]e cannot let the Constitution become an obstacle to the U.S.’s moving into the future with a sensible health care system,” et cetera.
The Constitution says nothing at all about health care, of course, but Stengel’s enthusiastic phrase “moving into the future” conveys his idea of the past as bad place, where things were not “sensible” because of those silly old-fashioned limits on federal power.
Horse and buggy. Powdered wigs. Private health insurance.
Which of those things doesn’t belong on the list?
Stengel’s glittering generalities are intended to sweep the reader along in a sort of psychedelic trance state where, by a process of synesthesia, apples become oranges and Lady Gaga becomes James Madison:
Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.
People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn’t even dream that man could fly, much less use a global-positioning satellite to aim a missile, it’s hard to say what he would think. What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress’s authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it’s difficult to know what he would say. And what would Thomas Jefferson, a man who owned slaves and is believed to have fathered children with at least one of them, think about a half-white, half-black American President born in Hawaii (a state that did not exist)? Again, hard to say.
The inclusion of Jefferson on Stengel’s list is rather interesting, in that Jefferson — who wrote the draft of the Declaration of Independence — was not present at the Constitutional Convention of 1787 (he was in Paris, serving as U.S. ambassador to France). We might see this as a further example of the Declaration/Constitution confusion that Bradford examined. Or we might rather suppose that Stengel juxtaposes slave-owning Jefferson with President Obama as a sort of liberal dog-whistle:
The Constitution is racist!
Yet again note how Stengel stigmatizes the past — where Washington, Madison and Jefferson were ignorant of all things modern — so as to flatter contemporary readers as superior in knowledge to the Founders. “You know so much more than those old dead guys,” Stengel is telling them. “Why should we let ourselves be hemmed in by what a bunch of slave-owners with wooden teeth wrote on a silly piece of parchment?”
Pause to observe that liberals never lecture us about the evils of constitutional limits on the president’s military authority when a Republican is in the White House. Only when a Democrat holds the office does fighting wars without congressional authority become a defensible practice. So “it’s hard to say” what Washington would say about Obama’s Libyan adventure, Stengel tells us. But I digress . . .
What is really at stake is a conflict between two understandings of the Constitution. The older tradition is what Bradford calls the nomocratic interpretation — that is, the Constitution as a binding agreement, a document intended to bring government under the Rule of Law, to specify the procedures by which government authority is to be apportioned and exercised. Only those actions which conform to the agreed procedural rules are legitimate.
This nomocratic view was the understanding of those who wrote and ratified the Constitution, and was really the only theory of constitutional interpretation for more than 150 years. Only after World War II did a newer theory assert itself, namely the teleological view, which historian Forrest McDonald explains in his foreword to Original Intentions:
This is the notion that the design of the Constitution was to achieve a certain kind of society, one based upon abstract principles of natural rights or justice or equality or democracy or all of the above. It holds that the specific provisions of the document are of secondary importance or none at all; what counts are the “principles” it supposedly embodies, usually principles based upon the Declaration of Independence or Lincoln’s Gettysburg Address, neither of which has any standing in law.
The perniciousness of this theory — the Constitution as a charter granting the government unlimited power to reshape society in accordance with abstract ideals — becomes apparent when we see how Stengel brushes aside constitutional limits as an “obstacle” to a glorious future. Instead, Stengel finds in the Constitution a commandment for “each generation [to] try to create that more perfect union.”
Utter hogwash, that — but hogwash is surprisingly popular nowadays, so I must take up the burden of teaching a history lesson that evidently is no longer taught in America’s high schools. What was the purpose of the Constitution’s preamble?`Here, let’s read it:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Fifty-two words of plain English. And as every 10th-grader used to know, the convention that produced the Constitution had originally been delegated merely to revise the Articles of Confederation, the shortcomings of which had become clearly evident since the end of the Revolution.
Because the convention had exceeded its original authority, it was necessary first for the delegates to explain why they had done so, and the 52-word preamble was this explanation. They invoked the authority of the “people,” and listed six general objectives as innocuous as they were vague. (How could anyone be against securing the blessings of liberty?)
The phrase “to form a more perfect Union” was merely an expression of the universally recognized problem with the Articles of Confederation: The Union (of the 13 states) was decidedly imperfect. States were levying tariffs on goods imported from other states, for example, and some state governments were struggling with heavy debts from the Revolution. Such was the state of affairs that during Shay’s Rebellion, local militia had to commandeer weapons from the federal armory in Springfield, Massachusetts, to prevent the armory from being captured by the rebels.
This is why the men who wrote the Constitution began by saying that this new framework of government was intended “to form a more perfect Union” — that is, to create a more harmonious connection between the several states than had hitherto existed. Nothing more signficant could reasonably be read into those plain words.
Yet that simple, self-evident phrase has been hijacked by liberals and transformed into a mandate for a constant process of re-creating the union, with what Stengel calls “an evolving sense of civil and political rights,” so that the Constitution itself dissolves into nothing, when compared to the endless pursuit of that mystic will-o’-th’-wisp, “a more perfect Union.”
Let us, just for the sake of argument, take this rhetorical transmogrification as legitimate. Let us suppose that the Constitution does indeed authorize a wild-goose-chase after “a more perfect Union,” with the sought-after perfection understood as some sort abstract ideal. Would “a more perfect Union” be one in which federal spending was more than 40% of gross domestic product?
Look at that chart. Isn’t it astounding to see that federal spending, as a percentage of GDP, is now nearly as high as during the four years of World War II? Our national debt is now $14 trillion, and has been growing by more than a trillion dollars a year every year since Obama became president.
Exactly how the hell is this “a more perfect Union”?
Ask Richard Stengel that question, and I’m sure his answer would sound something like: BLAME BUSH!
Some of us can recall when Time magazine was mainly about reporting news. Now it’s about ideological lectures delivered to a dwindling liberal readership (as well as unfortunate people stuck in their dentist’s waiting room). And the punchline of this sad joke is that last year, when Howard Kurtz pointed out that Time magazine has no conservative columnists, Stengel (who is the magazine’s managing editor) enthused how he would love to hire a conservative columnist — and maybe also a woman or two:
Two birds with one stone: Ann Coulter? Michelle Malkin? S.E. Cupp?
Nah, never heard of ’em.
UPDATE: Welcome, View From the Porch readers!