On Sunday’s This Week With Christian Amanpour, the Constitution, naturally on Independence Day weekend, was the topic. The panelists were Michael Eric Dyson of Georgetown, Jill Lepore of Harvard, and Richard Stengel, editor-in-chief of Time magazine, and, of course, conservative commentator George Will, whose views on the nature of the Constitution I want to discuss.
Will’s position can be fairly summarized in two excerpts from his commentary on the show, beginning with this:
It’s one thing to say it’s open to interpretation, which it obviously is. It’s very open-textured language. On the other hand, I mean, when you say unreasonable searches and seizures, what’s reasonable? We argue about that. But to say that the Constitution is a living, evolving document, as you did, is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia said. It is intended to put certain things beyond the reach of transient majorities.
Here is another selection from later in the program:
The framers were not narrowed and blinkered men. They were men of the enlightenment. They believed in progress, to which end they included in this document an amendment provision. They said there will be changes made.
The difference is, do you amend the Constitution by the casual weak interpretation of it, or do you candidly, when you want to change the structure of the government, change it by the amendment process they provided?
Now, these two sections seem to me to be a fair representation of the general conservative understanding of the nature of our Constitution and of constitutional interpretation. They certainly represent the view I held as a conservative, and one reads or hears a variation of this idea from the lips of most conservative thinkers today.
The problem is that the conservative view is simply mistaken. And George Will proved it during the subsequent discussion.
Will ask the following question, in the context of the health insurance mandate, of his fellow panelists, a question he no doubt thought would prove the superiority of his position:
Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce. Does Congress have the constitutional power to require obese people to sign up for Weight Watchers? If not, why not?
Two of the panelists eventually answered the question, sort of:
RICHARD STENGEL: If something is unconstitutional, people out there tend to think like some alarm will go off if something is unconstitutional. It’s unconstitutional if the Supreme Court decides it’s unconstitutional. And by the way, this can go to the Supreme Court, and we can see whether that happens.
GEORGE WILL: Well, does Congress have the power to mandate that obese people sign up for — do they have the power to do this?
RICHARD STENGEL: I don’t know the answer to that.
GEORGE WILL: You don’t know.
MICHAEL ERIC DYSON: Well, the beauty of that is, the not knowing…The basic foundation is set.
GEORGE WILL: Is that a yes, Congress does have the power to mandate?
MICHAEL ERIC DYSON: It’s open. If they decide that they will, they will have the power to do so.
The truth is—putting Stengel’s and Dyson’s thoughts together—that Congress does have the power, in Will’s formulation, to “require obese people to sign up for Weight Watchers,” if, and only if, the Supreme Court says it has the power.*
In the case of the health insurance mandate, if the Supreme Court ultimately rules that Congress has the power under the Commerce Clause to tell Americans they have to purchase health insurance, then they have to purchase health insurance or suffer the consequences. Period. There is no appeal from such a ruling, except via the formal amendment process. Likewise, if the Court says that Congress doesn’t have that kind of power, the Affordable Care Act’s mandate would be dead.
You see, this is the way it works, under a genuine, small “c” conservative understanding of the Constitution: The Congress acts, the Supreme Court decides if congressional action is constitutional, and we move on. This dynamic is why liberals rightly call it a living, breathing document.
And despite the fact that conservatives like George Will believe our founding document is designed to “freeze” in time certain principles, the truth is that the Constitution gives—through Chief Justice John Marshall’s bold assertion in 1803 of an otherwise only implicit constitutional power—the Supreme Court the right to judge whether Congress’ actions shall stand or fall.
And, more controversially but unmistakably, it gives the justices—even conservative justices who pretend to believe in something called originalism—the de facto right to interpret the document in novel ways (see, for instance, the 2010 Citizens United decision in which corporations became people with free speech rights).
Finally, George Will really undermined his own claim about a frozen Constitution with this remark:
In the first decade of the 21st century, that 18th century amendment—Second Amendment—pertaining to bearing arms, was settled in this sense — the Supreme Court finally said, based on extraordinary scholarship on both sides, that it does protect an individual right, not the collective right of militias.
Think about that. It took 217 years to “finally” settle the meaning of the Second Amendment? Remember what Will said before:
…to say that the Constitution is a living, evolving document, as you did, is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia said. It is intended to put certain things beyond the reach of transient majorities.
But what about transient majorities on the Supreme Court? How can anyone argue, “a Constitution is supposed to freeze things,” when it has taken so long for us to understand what the Second Amendment means? How about the First Amendment, the crucial meaning of which is still debated as it applies to twenty-first century life?
The point is that we know the Constitution is alive because new or nuanced interpretations of it keep breathing into its 18th century lungs the breath of life. And nothing confirms that truth more than the recent decisions by the conservative majority on the Supreme Court, notwithstanding the phony constitutional philosophy championed by those conservative justices and their defenders on television.
* This, of course, overlooks Congress’ power to define and therefore limit the apellate jurisdiction of the Court and preclude constitutional challenges to some of its actions. Article III, Section 2 of the Constitution says in relevant part:
…the supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Many conservatives see this provision as a check on “judicial supremacy,” and advocate that Congress pass laws that contain restrictions on judicial review, thus legislating the courts out of the mix. So much for “separation of powers.”
In fact, none other than Missouri’s Todd Akin, the extremist congressman from the 2nd district who wishes to replace Claire McCaskill as our senator, introduced a famous jurisdiction-restricting bill in 2004 involving protecting the Pledge of Allegiance. The bill, which ultimately didn’t become law, did pass the House. It had an amazing 226 co-sponsors, as conservatives in both parties couldn’t help but jump on the side of God and the Pledge.
Here is how Akin’s official House site, bragging about House passage of his bill, describes it:
Congressman Todd Akin (R-MO) praised its passage of his bill to protect the words “under God” in the Pledge of Allegiance. “This is an essential step in stopping the overreach of activist judges and will free the vast majority of children and adults who wish to use the words ‘under God’ in the recitation of the Pledge of Allegiance from the threat of censorship,” said Akin…
Exercising Article III of the Constitution, the Act (H.R. 2028) protects the Pledge of Allegiance by removing from the jurisdiction of the federal courts the question of the Pledge’s constitutionality.
Here are some notable Republican co-sponsors of Akin’s bill, who not only put themselves on the side of “under God” in the Pledge, but also believe that Congress should from time to time limit the jurisdiction of the courts:
Roy Blunt, Sam Graves, Tom DeLay, John Boehner, Eric Cantor, Jim DeMint, Jeb Hensarling, Paul Ryan, Darrell Issa, Ron Paul, Tom Tancredo, Pat Toomey, Joe Wilson.
In my experience, it is usually religious conservatives who want to limit the Supreme Court’s jurisdiction on “vital issues” like the “under God” in the Pledge, and also over display of the Ten Commandments and the “defense of marriage.”