In the pages of Commentary last Friday, Peter Wehner responded at length to my criticism of a National Affairs feature in which he had accused tea partiers of misunderstanding the nature of the American Constitution. Or rather, in the choice word of Wehner’s co-author Michael Gerson, Wehner “educated” me as to why I was wrong to challenge him.
Greatly thrilled as I am by all things didactic, I nevertheless have some queries for my tutors, with whom I must confess I still rather strongly disagree. For a start, I would respectfully remind Wehner of the question he set out in the first instance to address, which is whether the modern federal government can reasonably be said to tally with the Founders’ vision and with the Constitution that they produced, and which is not whether conservatives are electorally wise to attempt a resuscitation of that Constitution. In his reply, Wehner sticks largely to the latter inquiry, once again making a reasonable case that the conservative movement should accept that the priorities and desires of the American people have changed, delivering anew the vehement and wise warning that an overly aggressive program of constitutional repristination would be electoral folly, but ultimately doing little to establish that there is a strong connection between the positions he holds and the Founders’ Constitution. This, naturally, is a problem.
Last time around, I noted that the Constitution is not a mere suggestion booklet but instead a charter “of ultimate law — the provisions of which were fought over line by line,” and that, in consequence, it is incumbent upon us to hew closely to the text as it was written and, later, formally amended. I contended, too, that the Progressive amendments of the early 20th century dramatically changed the document’s scope and cannot therefore be used to link modern action with original intent. And I finished by arguing that one should be wary of anybody who approaches settled law by disparaging “abstract theories” and by referring vaguely to the “prescient mindset” of those who wrote the rules, lest they slide into living constitutionalism. “Our peculiar security is in the possession of a written Constitution,” Thomas Jefferson wrote. “Let us not make it a blank paper by construction.” Whether they mean to or not, my submission was that Wehner and Gerson’s line of argument will lead us inexorably to that very state, subordinating timeless meaning in favor of contemporary convenience and driving a fatal hole through the originalists’ cause.
Rather curiously, Wehner resolves to parry my complaint that he is making a strong case for living constitutionalism by . . . well, by making a strong case for living constitutionalism. “As for the charge of embracing a ‘living Constitution,’” he writes,
it is one thing, and I believe quite a problematic thing, for judges to invent and create and impose on the public invented rights. But in the representative democracy the founders created, they certainly believed that within certain parameters the will of the people, ratified in election after election and by Congress after Congress, needed to be taken into account. And Social Security has been ratified in dozens of staggered elections (presidential, Senate, and House) over the course of most of the 20th century and all of the 21st century.
This is a peculiar argument. For a start, I fail to see why it is better for an individual to have the rules of his government informally changed by a majority of his peers than to have them changed by a judge or nine. In both cases, a document’s legal meaning and practical effect is being substantially altered outside of the legitimate process for reform. Does the input mechanism really matter that much?
Wehner maintains that it does, recalling correctly that James Madison at first “opposed the creation of the First National Bank on constitutional grounds but, in revising his views” while president, “signed the act establishing” the second one. This is an accurate description of what did happen, certainly, but it is by no means a slam-dunk argument of what should have happened, nor does it serve as a contribution to the case that today’s sprawling, intrusive, illimitable government is the direct descendant of the charter-as-written. In fact, the example raises an important question: To wit, if Madison’s attitude toward the bank is to be our guiding principle in these matters, then why do we have a codified constitution at all? Why not instead declare parliament to be sovereign and determine to settle all questions by simple majority at the ballot box, as my country of birth has elected to do?
At the very least, I would like to know where the limiting principle lies. Wehner writes that,
the conduct of elections that tacitly or explicitly endorse existing policy, and people’s decisions with the passage of time to rearrange their own lives in light of the law, all amount to a public ratification.
To paraphrase Madison himself, I cannot undertake to lay my finger on that article of the Constitution that grants the public the right to ratify amendments outside of the amendment process. Perhaps Wehner could explain where it is? Perhaps, too, he could clarify whether this system applies only to expansions of general provisions — and if so, given that the Constitution is a charter of enumerated powers, why? Suppose that a) the First Amendment were being routinely undermined and b) that the American people seemed content with that and voted repeatedly to reelect those doing the undermining. In and of itself, would that change the First Amendment’s meaning? No, it would not. Would it mean that the document didn’t need amending by the usual means? No, it would not. It would merely mean that a majority was happy to ignore one of its provisions. I’d venture that, in such a case, the reinterpretation’s being “popular” would be of little consolation to those who expected what is ultimately a matter of law to protect them from the transient passions of the majority. Why, then, should this not apply with Medicare? Can simple majorities really change the meaning of counter-majoritarian rules purely because they are persistent?
During a recent examination of alleged executive overreach, Justice Scalia asked the government’s counsel whether his position was that “if you ignore the Constitution often enough, its meaning changes.” The suggestion is, of course, preposterous. And yet Wehner relies heavily upon precisely this conceit. For the second time in a row, he recruits to his cause the case of the Louisiana Purchase, presenting the affair as if it supports his argument rather than mine:
I can’t help but note that even Thomas Jefferson, who was more skeptical of a strong federal authority than many others of the Founders, managed to conclude the Louisiana Purchase without amending the Constitution to permit so massive an exercise of federal power.