As the House of Representatives read the Constitution aloud on the chamber floor Wednesday, the uproar from the left came as a bit of a surprise. Less surprising, perhaps, was that a number of the whiners don't actually understand the document they claim the GOP sullied with political stunts.
No, I'm not talking about Ezra "the text is confusing" Klein. The latest lefty to demonstrate his constitutional ignorance, Time Magazine's Washington correspondent Alex Altman, decried the "Cult of the Constitution" in a headline yesterday.
Altman began by lamenting the decision to not read parts of the Constitution that, well, are no longer parts of the Constitution. "The bipartisan recitation omitted several critical passages," he noted, "including the three-fifths compromise."
But the three-fifths provision and all the passages omitted from the reading are, unlike everything that remains, irrelevant to the 112th Congress. The existing Constitution governs the legislature, and provisions scrubbed from the document, obviously, do not.
And that seems to be where the fundamental misunderstanding occurs. Altman does not seem to realize that the Constitution is not a list of suggestions. It's not a nice-sounding essay that lists our founding principles. It's not just "a remarkable document…worthy of veneration [and] study," as he dubs it. It is quite simply the law, and it dictates the limits of Congress's power.
So if the point is to remind Congress of its proper limits, why on earth would the House recite passages that no longer exist? It wouldn't, of course.
Since Altman either doesn't understand that fact or simply didn't think it worth a mention (despite it being the entire basis for reciting the document aloud), it's hardly surprising that he also does not fully comprehend the amendment process.
Speaking of the founders, Altman wrote: "Despite their genius, the framers were fallible," and the document they produced was not perfect. He went on to quip that "the notion that our governing document should never evolve has always struck me as mildly insane."
When liberals want to bash originalists, that is their go-to straw man: changing times demand a changing constitution, and any claim that the Constitution is inviolable and absolute leaves no room for adaptation and change. Therefore we have to circumvent the Constitution (the law) to keep it up-to-date and the federal government functional.
That is of course untrue and misleading. The Constitution has a built-in mechanism for change: it's called the amendment process and it's been used 27 times since the document's ratification.
Altman characterized originalism - apparently synonymous with his "Cult of the Constitution" - as the belief that "there will never be agreement about how [the Constitution] should evolve, and because it's too messy to make those determinations, it must stay static."
That is a complete distortion of the originalist position. Lawmakers can stay well within the bounds of constitutional law AND change it to adapt to circumstance. The two are not mutually exclusive.
As for what originalism does hold, I'll let Chuck Krauthammer explain:
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.
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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.
Altman ends his piece quoting - who else? - Thomas Jefferson:
Meanwhile, here's Thomas Jefferson weighing in: "Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment...But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."
These, almost as much as any the framers gave us, are words worth remembering.
Perhaps we might also remember the words of the Constitution itself - you know, the ones the House was reading aloud the other day. The reading was a calculated reaction to a perception of unconstitutional government. Step one: remind Congress of its legal constraints.
Besides, Altman needs to brush up on his ConLaw.
