In a Washington Post op-ed, E.J. Dionne calls for progressives to reclaim a document that was never theirs, the principles of which are anathema to his fellow progressives. That document is the Constitution.
Dionne is responding to National Review’s Ramesh Ponnuru, who wrote that there is “popular interest in constitutionalism,” and its arbiters should extend beyond lawyers and judges to “legislators, and even citizen-activists, [who] have an independent duty to evaluate the constitutionality of legislation.”
Such a concept should not seem revolutionary. The Constitution derives its power from the consent of the governed who elect representatives tasked with expressly delegated powers. All else falls to the states or the people.
Why shouldn’t individuals take an interest in the Constitutionality of legislation passed on their behalf? After all, law is force and represents an encroachment on the people’s liberty – it must be scrutinized under the Constitution or law will lose legitimacy.
But Dionne sees things differently:
“One plausible progressive response is to see Ponnuru’s exercise as doomed from the start. The framers could not possibly have foreseen what the world would look like in 2014. In any event, they got some important things wrong, most glaringly their document’s acceptance of slavery.”
On the first charge, Dionne overlooks the fact that those who created our system of government were astute students of history with a keen understanding of human nature. Dionne neglects the founders’ understanding that the winds of public opinion would inevitably change, they also knew that human nature was unchanging.
The framers studied the governments of great nations that came before them, and formulated a system rooted in the Judeo-Christian principles on which Western civilization is based.
Their emphasis was on ensuring power be divided, checked and balanced to prevent tyranny. They did so because they were wisely mistrustful of fallible man, having studied the classics and seen man’s tendency towards folly.
Not only were they reverent of the past but humble as to their ability to see into the future. Although the founders may not have seen the advent of the federal income tax or the creation of the IRS, EPA, NSA, DOE and the rest of the alphabet soup of bureaucracy, they created a structure that would allow for the system to develop within bounds. They sought to ensure that such changes would be highly difficult to make so as to limit capriciousness, protect the rights of the minority, and again, ultimately prevent tyranny.
The founders understood that man seeks pleasure and avoids pain, and that the power politicians gain by manipulating pleasure-seeking constituencies corrupts, with absolute power corrupting absolutely. Hence as Federalist #51 says:
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
On the charge that the founders “got some important things wrong,” namely slavery, we should note that slavery is inconsistent with a Constitution that views individuals as sovereign and seeks to ensure that the people “secure the Blessings of Liberty.” It is also inconsistent with a Declaration of Independence that calls “life, liberty and the pursuit of happiness” unalienable rights.
That the founders practiced slavery – that they implemented an abhorrent institution inconsistent with the Constitution, liberty and virtue more broadly – does not invalidate the document itself.
It is an indictment on the founders, who themselves were fallible human beings. That its most ardent southern proponents had to twist themselves in knots to defend people as property reflects the intellectual weakness and limitations of those who argued in its defense.
Surely Mr. Dionne can make a stronger argument than this.
As to why progressives should “reclaim” the Constitution, Mr. Dionne begins by citing Professor David Strauss, who argues that the Framers created necessary latitude within the Constitution that conservatives do not recognize:
“The problem with ‘originalists,’ Strauss says, is that they ‘take general provisions and make them specific,’ even when they’re not. One might add that the originalists’ versions of specificity often seem to overlap with their political preferences.”
Dionne doesn’t offer any specifics as to where “originalists” do this, but conservatives would argue that the Constitution provides plenty of latitude within expressly delegated and limited powers.
Conversely, it is progressives, who, if they pay lip service to the Constitution at all, give the widest latitude to provisions that meet their ends – through tortured interpretations of the Commerce and Necessary and Proper clauses, not to mention the General Welfare clause.
Should not Dionne rather be on the side of interpreting the Constitution more narrowly rather than more broadly? A broader interpretation of law means a greater amount of government force and smaller amount of freedom for individuals.
But the real rub for Dionne concerns “inequality”:
“opponents of rising inequality made strong arguments ‘that we cannot keep our constitutional democracy — our republican form of government — without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone.’
…Their view is that by empowering the wealthy in our political system, Supreme Court decisions such as Citizens United directly contradict the Constitution’s central commitment to shared self-rule.
‘Extreme concentrations of economic and political power undermine equal opportunity and equal citizenship,’ they write. ‘In this way, oligarchy is incompatible with, and a threat to, the American constitutional scheme.'”
Dionne’s argument gets things completely backwards, however. The Constitution is unconcerned with ensuring ends. It is about providing the means whereby man can flourish by protecting his rights.
Dionne is concerned with distributional justice – how the fruits of labor are divided – but in order to socially engineer such ends, he and fellow progressives would destroy the very underpinnings of a free society itself.
A free society, which requires a limited government, ensures a diffusion of political power while creating equality of opportunity – not equality of outcomes – for all who seek it.
Concentrations of political power, and the incentives to spend lavishly on elections – can only come from a system where there is something to be bought – and boy are the politicians selling.
If the federal government stuck strictly to its Constitutional powers – and more importantly if the public demanded it – there would be no incentive for large corporations or labor unions, let alone thousands of other interest groups to spend massive sums to elect those who would confer benefits on such groups at the expense of others. Nor would politicians extort constituencies as a means of filling their re-election coffers.
As to the notion of our government being bought, recent examples remind us that money in and of itself does not equal votes, and there are well-heeled ideologues on both sides of the aisle competing against each other. But again, spending on elections in and of itself is a symptom of a government whose tentacles extend into all facets of our lives — and we can thank progressivism for that.
Moreover, where do we see actual oligarchy and the greatest concentrations of political and economic power? In those countries with the most radically socialist agendas – led by regimes which claim to ensure “equality” and root out “injustice.”
The rhetoric of progressives is equality; the reality is redistribution of wealth and power to an elite and the impoverishment of the masses. What could be more unjust than that?
The progressive ethos relies on the hubristic belief rejected by the founders that man should play G-d and bring his fellow man “forward” through divine and omniscient government, while the minority’s rights – individuals’ rights – should be sacrificed to the collective.
More fundamentally, Dionne and his fellow progressives fail to understand that the Constitution is a meaningless piece of parchment to the degree to which it does not have a virtuous people to sustain it.
As John Adams wrote:
“It is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”
Progressive disavowal of the former and laxity on upholding the latter demonstrate that they are ill suited to lay claim to a free constitution governing a free people.
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