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Rambling Through The Constitution
The trouble with making it up as you go.


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Jonah Goldberg

The inestimable Father Richard John Neuhaus writes about me in the latest issue of his wonderful magazine, First Things. He says, “Goldberg is among the most artful ramblers in the business….” He means it as a compliment and I take it as one. And in recognition of this praise, I will bury the topic sentence of this column somewhere low. I haven’t decided where yet.

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Earlier this month in this space I made a small gaffe (I call him Fred and carry him around with me. Oh wait, that’s something different.). I wrote, “Every day, I receive correspondence from young conservatives dismayed to realize only now that the New Deal or the income tax were largely unconstitutional, or that Galileo’s real enemies were more likely to be found among the ranks of his petty colleagues than in the Catholic Church.”

The mistake is to admit I got anything wrong in the first place. But, I’m doing it now to make a point. Obviously, the income tax isn’t unconstitutional — the 16th Amendment made it constitutional. I did know this. It’s just that in my zeal to make a larger point, I paraphrased a longer argument about the income tax into a misstatement. Not quite “lying for justice,” but a mistake nonetheless.

You see, lots of conservatives and libertarians despise the income tax for all sorts of reasons. Some just don’t like paying it. Others are constitutional purists, believing we shouldn’t muck with it beyond the Bill of Rights. Others believe that the income tax is bad procedurally; it feeds the central government while starving local ones. This, in turn, makes it possible for the feds to use bribery as a tool of social policy (drinking ages and speed limits tied to highway funds are the most obvious example). And then there’s the more straightforward moral argument: “Taxation of earnings from labor is on a par with forced labor,” the recently departed philosopher Robert Nozick famously wrote. Anyway, I hear from all of these people.

That’s not what I want to talk about. As the editors of National Review and the Wall Street Journal have noted, the president of the United States reportedly intends to sign a campaign-finance bill he thinks is unconstitutional. This is problematic because the president swears on a Bible that he “will to the best of my ability, preserve, protect, and defend the Constitution of the United States, so help me God.”

This is especially problematic because President Bush, by all accounts, believes in God. And, right when we’re duking it out with the forces of the Islamic world, it’s probably a bad idea for the president of the United States to tick-off the Almighty (especially over such a silly thing as this silly bill). He can always lie to Tom Brokaw and say he doesn’t really think it’s unconstitutional, but God is a tougher guy to con. That’s why Bill Clinton will in all likelihood spend eternity in Hell trimming Al Sharpton’s bunions. Plus it’s always a bad idea for the president of the United States — even when he’s an atheist — to knowingly sign into law something he considers unconstitutional (See Mark Levin’s piece today).

But that’s not the point either (we “artful ramblers” get away with murder. Okay maybe not murder. But we do get away with several extra meals in one day). At least Bush seems to care that the Shays-Meehan-McCain-Feingold proposals might be unconstitutional. When you listen to McCain or Meehan or pretty much anybody else in the Congress or the media they seem to think a law isn’t unconstitutional until the Supreme Court says so.

In fact, I bet many of you are saying, “yeah, that’s actually right. My civics teacher explained Marbury v. Madison to me after school one day” (class time was taken up by discussion of the heroic exploits of lesbian butter-churning pioneers). Well, it’s not right. The House and Senate take the same oath — more or less — that the president and the justices on the Supreme Court take. They all have an equal obligation to determine whether or not a proposed law is constitutional or not. It wasn’t until relatively recently that politicians started working on the assumption that the Supreme Court was the branch of government solely charged with determining the constitutionality of everything under the sun. Congress used to take it upon itself to decide whether something could pass muster constitutionally. The whole point behind the separation of powers was to ensure that no one branch gets too powerful. If the Supreme Court is the sole authority on constitutionality, then that system is out of whack.

Think of it this way: The Congress and Senate pass a law saying that U.S. Marines can kick in your door, eat your food, get all grabby with your wife, hog the remote, and sleep on your couch indefinitely — without ever offering compensation or putting the toilet seat back down. Would that be constitutional until the Supreme Court says otherwise? Of course not. The fact that it’s comparatively more difficult to determine whether or not bans on issue ads are unconstitutional doesn’t lessen the obligation to make that determination; it just makes it more difficult. If we wanted a system which depended on the vagaries of insipidity and reflexive asininity we’d have made Alec Baldwin Czar-for-Life.

But that’s not what I want to talk about either.

All of this points to the weak and fundamentally cowardly nature of contemporary liberalism. I mentioned the income tax before for a reason. It used to be that the Left actually believed the Constitution had a meaning. You know, the actual document doesn’t provide instructions on how to replace the toner cartridge on the office copy machine. The words mean X but not Y. That’s why the progressives and Lefties actually amended the Constitution to make the income tax constitutional. They organized. They had a fight. They won. Bully for them.

But, today, the Left simply asserts that the Constitution — as a “living” or “evolving” or “organic” whatever — simply means anything good. Capital punishment is bad, so it must be unconstitutional. Campaign-finance “reform” is good, so whatever form it takes must be constitutional. Clarence Thomas got into trouble when he was first appointed to the bench when he noted that beating up prison inmates may be illegal, immoral, and unethical — but it’s not necessarily unconstitutional.

Across the liberal firmament we are told that the denying of a federal grant to an artist who defecates in a can and calls it “art” amounts to “censorship,” but the restriction on the ability of certain groups to criticize an elected official during an election is well within the bounds of the First Amendment. Hey look, the First Amendment may protect the most outrageous and disgusting behavior (See, for example, “In Defense of Bob Jones“) imaginable — so long as you call it “speech.” I’m open to that debate. But how the champions of free expression can make such claims while banning issue ads — precisely the sort of speech the Framers had in mind — is beyond me.

Well, that’s not actually true. I do understand it. They simply believe — unlike the brave and serious, if wrong-headed, men and women who amended the Constitution when they disagreed with it — that the Constitution, is like, a pool of Narcissus for their egos, just a reflection of their own flabby convictions.



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