Soon after Texas governor Rick Perry announced his presidential campaign, a few websites, mostly liberal, compiled a list of the constitutional amendments he has at various times touted. He has spoken favorably about amendments to end the lifetime tenure of federal judges, to allow supermajorities of Congress to overturn Supreme Court decisions, to repeal the Sixteenth and Seventeenth Amendments (which established, respectively, the income tax and the direct election of senators), to limit federal spending, to define marriage in American law as the union of a man and a woman, and to prohibit abortion.
Liberals responded, either explicitly or implicitly, with a comment that was partly a question and partly a taunt: Why are conservatives, who place so much emphasis on fidelity to the Constitution, so keen on changing it? It is a point they have also made during recent debates over the proposed balanced-budget amendment.
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The premise is correct. Over the last generation, conservatives have been much more likely than liberals to propose formal amendments to the Constitution. The failed campaign for the Equal Rights Amendment in the 1970s was the last time liberals attempted to use the amendment process outlined in Article V of the Constitution. Conservatives, on the other hand, have promoted not only the amendments that Governor Perry has mentioned but additional measures allowing Congress to ban flag-burning, allowing schools to organize prayers, and letting a supermajority of state governments overturn federal laws.
But that disparity does not reveal a defect in conservatives’ constitutionalism. What the liberals’ reaction to that disparity reveals is how little they understand constitutionalism, or at least what conservatives mean by it.
For two features of our constitutional politics could not be plainer: First, that from Woodrow Wilson’s day to our own, progressives have been far more likely than conservatives to express impatience with the whole constitutional scheme of limited government; and second, that progressives have long sought, often successfully, and still seek to change the Constitution without going to the trouble of formally amending it.
If you doubt the first point, recall how liberals reacted to the difficulties they encountered in enacting Obamacare. The political system was said to be broken; complaints were leveled against the undemocratic Senate. If you doubt the second point, recall that after the ERA failed, liberals achieved almost everything they had wanted from it through the courts. There is nothing that liberal legal academics and activists refuse in principle to read into the Constitution because the ERA is absent from it.
The Supreme Court has amended the Constitution hundreds of times, in ways large and small, by reinterpreting its provisions, almost always to serve progressive ends. American constitutional law now includes restrictions on police procedure, regulations on permissible school-discipline policies, minute if unpredictable edicts about the proper placement of municipal displays involving religion, and rights to solicit and perform abortion at any stage of pregnancy.
In each case, Americans had spent decades living under the relevant constitutional provisions without anyone’s imagining that they commanded what the Court now says they command. It is always possible, of course, that earlier Americans, by ratifying those provisions, committed themselves to principles that would have future applications they could not imagine. But the vast majority of the Court’s informal amendments to the Constitution cannot be defended in this manner, because it is simply implausible to maintain that, for example, the ratifiers of the Fourteenth Amendment intended to grant the Supreme Court the power to strike down any state law that a majority of justices considered to be an offense against their understanding of liberty or equality.
If liberals are unenthusiastic about explicitly amending the Constitution, then, it is because they have little need to go through the laborious process of getting two-thirds of Congress and three-quarters of the states to agree to their constitutional proposals, since they can follow the easier path of getting five or more justices of the Supreme Court to amend it for them. It is inconceivable that they could persuade the requisite national supermajority to amend the Constitution to command all governments, state and federal, to accord the status of marriage to same-sex couples. It is entirely conceivable that they could persuade the Court to do it.
Thank you for posting this. It is such a clear, succinct -- and in my view unassailable -- description of our constitutional form of government, it can serve as a primer. I intend to make all my children read and discuss.
Also highly recommended: Ed Whelan's 3-part discussion on originalism.
Agreed. For to long the Courts have acted as perpetual Constitutional Conventions with the power to freely amend the Constitution under the guise of interpretation.
Actually, my reaction is...do you really think there is any chance whatsoever that even ONE of Rick Perry's Amendment proposals will even leave Congress, much less be approved by the States and put into the Constitution.
Even one? If not, then what exactly is Mr Ponnuru praising?
Nice try at resurrecting Perry but not on point. Perry is toast because of his unsupportable stance on Immigration and his loopy idea, from which he is trying to moonwalk, on SS being a State program. He is also toast because of the spooky way he responds to crticism's at the debates, contorting his face and body!
There are three issues you are trying to conflate: legal immigration, illegal immigration and what we, as a nation, and a state, do with illegals that make it past our borders.
They are not one and the same.
As it currently stands, the federal government claims sole purview over immigration, legal and illegal. It also claims sole purview over how to handle those illegals who are currently living here. Yet, when it comes to illegal immigration, the federal goverment abdicates its responsibility by placing the burden on the states. States are required to educated those immigrants, up to the 12th grade, states cannot order state or local law enforcement to do the job that federal law enforcement doesn't do (deportations) and are required to bear the costs of incarceration, health care and numberous other issues. The federal government ties the hands of states to enforce federal law, while it turns a blind eye to the plight of the states who are dealing with the issue.
It was never intended to be that way, yet governors are hindered by the federal government who refuses to do its job.
Perhaps you have an answer for such problems. Perhaps you can tell us what route the states should take when they are forced to accept illegal immigration and not be able to do anything about it. Perhaps you can tell us how states can thwart the federal government in order to enforce the U.S. Constitution?
The constitution of Texas mirrors the U.S. Constitution with the added clauses that deal directly with state issues. Texas Constitutional amendments are put to a vote, in general elections. Citizens, not judges, make rules that the citizens of Texas have decided to abide by. Judges in Texas are elected, so that if they conduct their court in a manner that the citizens do not like, they can be voted out. Not all states have that benefit.
Perhaps instead of bashing Governor Perry, you should look to his state for the direction the rest of the nation needs. Life, liberty and [property] the persuit of happiness are not just catch phrases in Texas.
The calls for Constitutional amendments from shallow hacks like Rick Perry are cheap grace. I.e., he calls for them, but does absolutely nothing to develop the political momentum to advance the process.
Amending the Constitution requires the hard work of political advocacy to change public opinion and engender support for the proposition.
Mediocrities like Perry merely pop off from podiums and then self-congratulate. It's the Conservative Mom and Apple Pie schtick to gasbag to the base and then do nothing to make it happen.
That's why the country is trashed. Decades of cheap talk from Republicans like Perry who are actually well greased functionaries in the Political Nomenklatura.
@SteveM: It's clear to us that you don't like Perry and having read many of your posts, I doubt you ever did. Okay. Now, find some level of reality and propose your candidate for the changes required to survive another 4 years under BHO.
Are you happy with another BHO light? Romney has been in the spotlight for a few years now and though he's sharpening his image, I still don't like his reflection. IMHO, the only other candidate that is "electable" (as per WFB) would be Perry with Cain as a possible second. I would take a Perry/Cain team in a NYM.
So there it is; my proposal. Rather than trashing a good man in Perry, why don't you get busy proposing someone who can unseat BHO and would start a course of change in this Country that many of us feel is imperative to our Nation's survival.
Have ya noticed that now, everything about America is in trouble?
Our whole outlook has shifted from issues (such as judicial review) being obstacles we can overcome, to just another rock in the landslide destroying our Country.
What's missing in these "meaningful discussions" our politicians keep insisting it is time for this Nation to have, is a truly divergent perspective from the Liberal agenda we have been following. We have the populous "TEA Party" citizenry opposing the status-quo, but have yet to find political leadership to take up our cause, and fight for it. Sarah Palin USED TO be that person, but even she has stood mute since Tucson.
So we Cons are left with this woefully inadequate field of posers who just don't get it. Otherwise, we'd be hearing them confronting the Left, nationally, everyday. There is a lot of support and money waiting to find a home out there - I hope someone steps up and legitimately claims it, instead of just tweaking their message here and there.
For example, Mr. Perry - WHY do you want to amend the Constitution in such a way? WHAT makes you believe it is necessary after nearly 250 years?
There are times that the Conservative message shines. Granted, it is not trumpeted enough, but the message is slowly getting through. Look how far the pendulum's swung in the past two years? I think we are just drowning in all the negativity, and I believe we are clamoring for change--it just can't happen fast enough. I agree that it's dire, but I also believe enough people are waking up to the mistake that was Obama. I'm too young to remember, but I have to imagine that Carter-era Conservatives were feeling much like we are today.
Many similar social, global, and economic issues are present, but the whole feel of America was, I believe, different.
Regardless of the batterings, there was still a sense of pride in being America, and - not so much a faith - but just a knowledge within us that we would recover and be all that much stronger for it.
Today, I don't think a plurality of the world, let alone Americans, can muster those feelings and beliefs. It will take a strong and proud leader to bring that about again, and I don't see him in the race yet.
@Geoph: clearly, Rick Perry won't answer you so I'll take a shot at his position as best I can. My understanding of what he wants is based on my having read his book and him being our Governor.
Your question deserves an answer, but I sense that you ask it in a rhetorical form. Changing the Constitution is a mighty matter and worthy of much study as the author suggests so it is with great care and concern that ammendments be made to it.
As the article would suggest, and I believe this; Perry would mostly change it to prevent further erosion of its benefit as he (and others including myself) see it.
Have you ever noticed how everything nowadays seems to be a "national" matter? The founders never intended it to be that way because they spelled out the "national" matters in the direct responsibilities of the National government.
The commerce clause has been stretched to unbelievable boundaries by the various administrations of the Executive branch for decades now and Congress (both houses) have gone along with it.
The Supreme court was never supposed to decide for themselves what Congress meant and Congress is supposed to provide law that is well thought out. Both of these conditions were not supposed to exist in the eyes of the founders.
Most of all; Perry is a "states rights" Governor. He doesn't claim to speak on behalf all the other governors in the nation because he knows he speaks only for Texas. As such, he doesn't want someone else speaking for Texas on matters that matter only to Texas. He strongly believs in the 10th amendment. Essentially, if it isn't directly spelled out as a power of the government, then it is a state issue. Unfortunately, the National government has expanded (as they were predicted by the founders) into the role of nanny state watching over the little children states under the pretense that we don't know what we should do so they will tell us.
As I suggested, though your questions sound rhetorical, I hope this response adequately explains Perry's beliefs about change. Hopefully, you understand his position on this better now, but please, if not, post more questions and we'll go from there.
I've said it before; there isn't a better candidate to unseat Obama than Perry because of his stands. Not all are perfect, but they are direct, nearly polar opposites of what BHO believes and I for one think that is necessary. Think of it this way, Perry will set a course for a newer, more "limited, constitutional republic" than we've had in 75 years. This would be a refreshing change from the bloated, over-reach of the current form of national, socialism we have in place now.
Not so much rhetorical as much as a plea for the distinction between politicians and philosophies to be expressed.
I did hear A clip of Perry this morning claiming a stark contrast between himself and Obama, but i ask him to take it the next step and STATE those differences for us. Don't make us infer them. To do so appears to be hedging on a position and keeping the option to blur the line of distinction open.
It is the willingness of Christie to state his opinion that i believe draws people to him. I think it was that trait in Palin that helped her remain popular for so long (I note her popularity appears to have slipped since she stopped challenging Obama's agenda, especially since Tucson). I listened to Christie last night speak of favorite Reagan moments. What moments do we remember about Dutch? Christie's was the air traffic controllers, for others maybe calling out the "Evil Empire" or telling Gorby to "Tear down that wall". The connecting thread for all of these is the clarity and confidence with which people state their ideas and ask others to join them.
One more reason he'd be trashed in the general. He also wants a constutional amendment banning abortion. "No income taxes?!?"...that's how it will be portrayed in the media. "How will the gov't function"?
Most people are too stupid to realize he could never make any of that happen. Instead all it will do is convince them he's "outside the mainstream". As for abortion, most people don't want any such amendment and even if they are "against" abortion, they don't want it made completely illegal.
Basically, he's nuts for writing this stuff down. It has no chance at coming to fruition and it will only hurt him. But conservatives won't see it that way...they'll nominate this Hindenburg and watch him blow up, Sharon Angle like.
Perry is a D list actor for a President role. He's got the look but he can't even act let alone lead. Get serious GOP! You should be used to the cold, weary wilderness life ... you've been banished to it for a few years now!
