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What Constitutionalism Means
From the Sept. 19, 2011, issue of NR.


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Ramesh Ponnuru

Return now to Governor Perry’s list of constitutional amendments. There is, as we have seen, no contradiction in simultaneously believing that the Constitution should be obeyed and that it should be changed, or that it is great and that it can be improved. But the amendments Perry has discussed are a tighter fit with constitutionalism than that, because the principal argument for all of them is precisely that they would undo the damage to the constitutional order that departures from constitutionalism have done. Thus Perry wants to amend the Constitution in order to restore its proper meaning.

The abortion amendment is almost entirely a direct response to the amendment that the Supreme Court worked in Roe v. Wade. The marriage amendment is mostly a response to the threat that same-sex marriage will get its own Roe. The amendments on life tenure for federal judges and congressional nullification of judicial decisions are responses to the courts’ habit of rewriting the Constitution. Four of the seven amendments, then, are occasioned by judicial departures from — one might even say assaults on — constitutionalism.

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The remaining three proposed amendments can be seen as backstops to other constitutional provisions that need them. Perry undoubtedly believes that the direct election of senators and the income tax have made Congress less likely to abide by the limits of its constitutional power to regulate commerce, and that a limit on federal spending will make Congress more likely to respect the Tenth Amendment (reserving all powers not granted to the federal government to the states and the people).

It may be that some of these amendments are undesirable, or are not worth pursuing for some other reason. (At least four of the seven strike this conservative constitutionalist as unwise.) But they are clearly constitutionalist in spirit. All of them involve following the proper constitutional channels for constitutional change — channels that require a great deal of public deliberation and support before the change can occur. Some of the amendments would bring governmental practices closer to the actual meaning of the Constitution; the others respond to perceived conflicts between parts of the Constitution by discarding the less valuable and basic ones. And so it is that Governor Perry, in suggesting that the Constitution be changed, has demonstrated more fidelity to it than most of those who sneer at him.

— Ramesh Ponnuru is a senior editor of National Review.



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