| Submit your comments on this article |
| Home Front: WoT |
| The Living Constitution's Double Standard |
| 2006-08-23 |
| By Jonah Goldberg "We do not insist that our medicine, our technology, or even our entertainment, all remain in an obsolete state; why would we demand that the law be given such treatment? It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society." A year ago, Slate magazine's legal correspondent, Dahlia Lithwick, recounted this observation - from one of her bounteously sophisticated liberal readers - as a neat summary of the "doctrine" of a "living Constitution." And a neat summary it is. How droll and obtuse that conservatives think the Constitution should remain anchored against the tides of change while those currents bring with them torrents of newfangled iPods and ever-changing gusts of news; one day about Brittany Spears, the next day Paris Hilton. How very horse-and-buggy to suggest that the Commerce Clause wouldn't change with the latest in slattern chic and personal electronics. Anyway, that bit stayed in my mind ever since, and I think of it whenever the Constitution comes up in the war on terror. Just last week was a case in point. Judge Anna Diggs Taylor issued a ruling that even legal scholars who like the outcome consider to be laughable in its reasoning. She held that the government's Terrorist Surveillance Program is not only illegal but also unconstitutional. The program, if you recall, monitors phone calls and Internet activity among al-Qaida members and affiliates without a warrant. The executive branch holds that it has the right to do this under its authority to collect intelligence for national security purposes. These calls aren't being monitored for criminal prosecutions but to "connect the dots" and prevent another 9/11. It may turn out that the TSP is illegal, technically violating the Foreign Intelligence Surveillance Act of 1978, but we wouldn't know that from Taylor's decision. She cited almost none of the most relevant cases on the matter, and the upshot of her ruling is that even if Congress wanted to codify in law what the president has been doing under his own authority, it couldn't because the founders never had any such thing in mind. "There are no hereditary Kings in America and no powers not created by the Constitution," Taylor wrote, invoking the founders' intent and betraying her own intent to issue as quotable an opinion as possible for the press. You do see the irony here, don't you? A coalition of pressure groups - Greenpeace, the ACLU and a bunch of left-wing professors - are arguing that the Constitution must be immutably inflexible, adamantine in the face of changing times. The fact that al-Qaida is using new technologies the founders could never have imagined is irrelevant, say the absolutists. If the government can listen in on bin Laden's phone calls without a warrant, what's to keep them from listening to a phone call between me and my Aunt Sally? Isn't this just a bit hard to take with a straight face from the ACLU, which finds powers not created by the Constitution every day and periodically declares such inanities as the idea that the Constitution forbids teachers from reading "The Chronicles of Narnia" in class lest the tykes' young minds be corrupted by hidden messages about Christianity? Such concerns would have left the founders dumbfounded before the opening prayers of the Constitutional Convention. Then there's Greenpeace. Not noted for its abiding concern for constitutional niceties one way or the other, the environmentalist outfit claims that its constitutional rights were violated because the TSP had a chilling effect on its international communications. Had they been in negotiations with bin Laden to keep him from blowing up baby seals? But, you might ask, aren't traditional opponents of the living Constitution hypocrites? Liberals normally like their penumbras emanating and their Commerce Clause written in Silly Putty while we conservatives like our Constitution like our beef jerky - cold, dead, tough to chew through. So aren't conservatives using a double standard, too? It may depend whom you're talking about, but I think not. Long before the concept of a living Constitution was hatched, the authors of the original version - as well as the courts interpreting it - understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren't merely criminals. They're waging war against us and doing so in ways never imagined by the founders. They don't want territory or treaties, and they don't use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us. And so here is the real absurdity of the "living Constitution" school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, intellectual rigor mortis has set in. |
| Posted by:ryuge |
| #8 *giggle* |
| Posted by: trailing wife 2006-08-23 22:14 |
| #7 Overheard at a party: "I'm a liberal because I like new ideas." |
| Posted by: Classical_Liberal 2006-08-23 21:58 |
| #6 Beautifully written article. Reasoned and dead on target. Not that this will have any effect on the LLL's or the MSM's support for "progressives"... |
| Posted by: flyover 2006-08-23 18:39 |
| #5 On that note, the best song on the Simpson's soundtrack. Done by the singer of at least one Schoolhouse Rock. Oh, yeah! Kid: Hey, who left all this garbage on the steps of Congress? Amendment: I'm not garbage. (starts singing) I'm an amendment-to-be, yes an amendment-to-be, And I'm hoping that they'll ratify me. There's a lot of flag-burners, Who have got too much freedom, I want to make it legal For policemen to beat'em. 'Cause there's limits to our liberties, At least I hope and pray that there are, 'Cause those liberal freaks go too far. (spoken) Kid: But why can't we just make a law against flag-burning? Amendment: Because that law would be unconstitutional. But if we changed the Constitution... Kid: Then we could make all sorts of crazy laws! Amendment: Now you're catching on! Kid: What if people say you're not good enough to be in the Constitution? (sings) Amendment: Then I'll crush all opposition to me, And I'll make Ted Kennedy pay. If he fights back, I'll say that he's gay. (spoken) Congressman: Good news, Amendment! They ratified ya! You're in the US Constitution! Amendment: Oh yeah! Bart: What the hell is this? Lisa: It's one of those campy '70s throwbacks that appeals to Generation Xers. Bart: We need another Vietnam to thin out their ranks a little. |
| Posted by: rjschwarz 2006-08-23 17:36 |
| #4 I used to believe in the Living Constitution idea when I was fresh out of college and somewhat naive. Then someone pointed out that there was a reason the founders put the ability to change and ammend the constution into the constitution in the first place. If it was flexible and mutable ammendments would not have been necessary. |
| Posted by: rjschwarz 2006-08-23 17:30 |
| #3 For the left, the Constitution is just an empowering icon. The words long ago lost their meaning. Possessing power is the only justification for dictates and decrees which the governed class need to obey. Like ancient religious ceremonies, the 'Constitution' is just something to invoke to force the unwashed masses to your will. And that is why, boys and girls, the left is so shrill and angered, cause the 'Power' was only meant be we wielded by them and them alone. Now they see the danger they created by their own hands. That is why fear and panic run among their numbers. |
| Posted by: Angaviger Craiter1890 2006-08-23 14:57 |
| #2 The Constitution is a framework of fundamentals. Fundamentals, by their very definition, do not change, but are rather the bedrock upon which other ideas (that often change) rest. Comparing the immutable fundamentals on which society is based to 'medicine', 'technology' and 'entertainment' is sheer stupidity. |
| Posted by: mcsegeek1 2006-08-23 11:25 |
| #1 Let's reead the very first words of the Constitution: "We, the people of the United States" and that is what makes all the claims about the living Constitution at the very least harebrained, at worst dishonest and traitorous. The Constition was made by the people and a mere judge tring to twist it would be guilty of major felony and breaking of democracy. |
| Posted by: JFM 2006-08-23 09:45 |