Exclusive: The U.S. Constitution has become part of today’s political battlefield, with the Right claiming to be its true defender and the Left questioning why the old parchment should undercut democratic choices in the modern age. But neither side seems very interested in what the document actually did, says Robert Parry.
By Robert Parry
There are two major schools of thought about the U.S. Constitution. One from the Left argues that it’s an outdated structure that should not be allowed to inhibit actions necessary to meet the needs of a modern society. And one from the Right, that only a “strict constructionist” reading of the Constitution and respect for the Framers’ “original intent” should be allowed.
But the problem with these two views is that neither is logically consistent or honest. The Left, for instance, embraces important constitutional liberties, such as habeas corpus, freedom of speech, and prohibitions against “cruel and unusual punishments” and unreasonable searches and seizures – regardless of the exigencies of the moment.
Yet, the Left disdains much of the Constitution for its anti-democratic and even immoral compromises, which enabled the new governing document to emerge from the Constitutional Convention in 1787 and narrowly win ratification in 1788. Not only did the Constitution countenance slavery, it undercut democracy by giving two senators to each state regardless of population (and originally having them appointed by state legislatures, not elected by the people).
Why, ask many on the Left, should modern American society be restricted by the judgments of a small group of propertied white men – many of them slaveholders – who died two centuries ago? Why should old compromises, which now seem ridiculously quaint and wrongheaded, be allowed to distort and constrain democratic judgments in 2013?
As Georgetown University constitutional law professor Louis Michael Seidman wrote in a recent New York Times op-ed, much of the fault behind today’s gridlock in Washington can be traced to the “archaic, idiosyncratic and downright evil provisions” of the U.S. Constitution. He added:
“Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.”
The Right’s Distortions
While the Left tends to view the Constitution as an irretrievably flawed document (albeit with individual liberties that the Left loves), the Right has made political hay by presenting itself as the Constitution’s true defenders. The Right argues for what it calls “strict construction” and “original intent.”
Yet, even right-wing Supreme Court justices who wax eloquently about “originalism” will twist the Framers’ words and intentions when ideologically convenient, such as when Antonin Scalia inserted restrictions in the Commerce Clause – during his opposition to the Affordable Care Act – although James Madison and the Framers left the congressional power to regulate interstate and national commerce unlimited.
Indeed, from a strict reading of the Constitution, Madison had a much more robust respect for the democratic decisions of the elected branches of government than does today’s Right.
In oral arguments on “Obamacare” in 2012, Scalia fretted about the possibility that Congress might use the Commerce Clause to mandate compulsory broccoli purchases, but Madison seemed to understand that if Congress and the President were nutty enough to do something like that, the voters would have the commonsense to un-elect those representatives at the next opportunity.
However, rather than trusting in Madison’s language giving Congress the unlimited power to regulate commerce, Scalia insisted on second-guessing the Framers by applying his own judgments about what limitations should be in the Commerce Clause.
Scalia’s Constitutional re-write was accepted by his fellow right-wingers, including Chief Justice John Roberts, although – at the last minute – Roberts joined with four Democratic justices to deem the Affordable Care Act constitutional under the taxing power of Congress. Still, Roberts rejected the Commerce Clause as justification after he arbitrarily eliminated some 18th Century definitions of the word “regulate.”