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Constitutionalism: Here Are a Few Things Richard Stengel Doesn’t Know About

“Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.”

Time managing editor Richard Stengel opens his deeply flawed 5,000-word article on the Constitution with this self-evident chronological platitude. Reading through his piece, it soon appears there are a few things he doesn’t know.

Let’s begin with the basics. Citizens of all political persuasions who uphold the Constitution are not pining to turn back the clock on technological advances and social progress and return to the late 18th century to live in a world where men wore powdered wigs and doctors “still used leeches.” Constitutionalists aren’t hapless characters in a political remake of Woody Allen’s latest movie Midnight in Paris.

In arguing for the enduring relevance of the Constitution, they’re upholding the republican framework of limited constitutional government that it sets in place. The Framers may be dead and gone, but their timeless principles endure.

These principles, although first articulated centuries ago, are not tied to the material conditions of a bygone age. They rest on that most solid and enduring of all foundations: human nature. Madison’s rhetorical question in Federalist 51 rings true as ever: “But what is government itself, but the greatest of all reflections on human nature?” The miniskirt, sexting, and collateralized debt obligations haven’t put much of a dent on good ol’ human nature. Until men become angels, let’s stick to the Constitution’s healthy distrust of concentration of power and unfettered mob rule.

Times changes. Issues flare up and drop off the radar. Science continues to deliver wonders. The Constitution is meant to create a framework for a free people to confront the political questions of their times. The Constitution itself contains no policy prescriptions. Its words and principles, anchored in the Declaration of Independence, categorically rule out certain laws — e.g., bills of attainder — and create a system of checks and balance between different levels of government. But within the confines of these restrictions and delineations, it leaves the people free to deliberate via their elected representatives on the questions and problems of the day.

Having established this basic point, let’s take a swing at some of the many low-hanging rotten fruits in Stengel’s constitutional musings.

The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning.

For all their heated disagreements over issues such as the chartering of a national bank, the Framers agreed on the fundamental principles undergirding the Constitution. Most importantly, they agreed that there must be limits to the powers of government to avoid tyranny. Stengel’s “constitutionalism” recognizes no theoretical limits to the scope of government. The debate that the Constitution should foster concerns its proper limits — not whether there are any limits.

[The Framers] also gave us the idea that a black person was three-fifths of a human being.

This is one of the most shameless lies peddled by the liberal intelligentsia. The Constitution does not classify people according to race. While the Constitution does compromise with slave-holding interests, free blacks in the North and the South were counted on par with whites for purposes of apportionment and black citizens were voting in five of the original 13 states at the time of the Founding. As for enslaved blacks, it was the Southern states that wanted to count them as full persons, thereby inflating pro-slavery representation in the House. The three-fifths compromise was aimed at preventing Southern states from magnifying their own political power.

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power.

This is absurd. From the wording of the legislative vesting clause — “All legislative powers herein granted” — to the specific restrictions placed on Congress in Article I, Section 9 and in the Bill of Rights, including the unambiguously constraining language of the Tenth Amendment, the Constitution creates a government of limited enumerated powers.

George Washington once signed a bill asking Americans to buy a musket and ammunition. There’s nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax — even if we don’t like it. … The Affordable Care Act may be bad legislation, as some contend, but that doesn’t mean it’s unconstitutional.

The law signed by President Washington was made in pursuance of Congress’s specific and enumerated power to “raise and support armies . . . provide for calling forth the militia . . . [and] provide for organizing, arming, and disciplining, the militia.” There’s a world of difference between that and arguing that Congress can invoke the commerce clause to compel citizens to purchase health insurance.

The Framers didn’t know the first thing about “Poker Face” or the double helix, but they at least had the excuse of living two centuries before Lady Gaga and Watson and Crick. Stengel is the managing editor of the country’s largest news magazine and, hold your breath, the former president and chief executive officer of the National Constitution Center, where he launched the Peter Jennings Project for Journalists and the Constitution to “help both professional journalists and students interested in journalism understand constitutional issues more deeply.” He has no excuse for knowing so little about the Constitution.

David Azerrad is assistant director of the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

New on The Corner. . .


COMMENTS   33

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   06/24/11 16:33

does anyone read Time magazine anymore? Even in my dentist's office I'll pass over it even if my only choice is Redbook or the 8-month old Sport's Illustrated.

This would just be yet another reason to keep doing so.

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   06/24/11 16:40

Without question, one of the dumbest articles in the history of big time media. Hard to believe a copy editor, proofreader, janitor, anyone! on that staff didn't say before it went out - what the *bleep* is this *bleep*? Is everyone who works there that stupid?

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 GWB
   06/24/11 16:55

"Is everyone who works there that stupid?"

Yes.

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 MTM
   06/24/11 16:43

David,

One could argue that his leadership of the NCC is a fine excuse for knowing very little concerning the Constitution....

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Michael K
   06/24/11 16:44

"The Framers] also gave us the idea that a black person was three-fifths of a human being."

What an embarassment for the managing editor of what once was the queen of the weeklies. Sort of fits in with the stories about how ignorant Americans are of history. Mr. Stengel should be the poster child of ignorant Americans. Also, Stengel seems to be a poster child of the difference between being credentialed and actually bothering to learn something in college/university.

"If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power."

I am not sure which of the Federalist writers stated this but to paraphrase, there was an explicit list because that is ALL the Federal government was suppose to be allowed to do. One of the Framers claimed the Bill of Rights was unnecessary for that reason and a Bill of Right might actually be dangerous as one can interpret it as allowing the Federal government to do anything not explicitly forbidden by the Bill of Rights.

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 jag
   06/24/11 16:46

"The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations."

Oh yeah, the founding fathers labored mightily to make sure they forged something "opaque".

That they documented, copiously, the reasoning behind the choices they made in crafting every word of the Constitution but all that, to Stengel, doesn't register.

Its sad but understandable that there are reasonably well educated adults exist who don't understand the fundamental idea that the Constitution was designed to limit federal power. That this man labored at the National Constitution Center and doesn't understand this fact pretty much proves he is an imbecile.

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   06/24/11 16:48

"George Washington once signed a bill asking Americans to buy a musket and ammunition. There’s nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax — even if we don’t like it. … The Affordable Care Act may be bad legislation, as some contend, but that doesn’t mean it’s unconstitutional."

Let me see if I have this right. Pres. Washington signed a bill asking people to buy guns and ammunition.
Therefore Pres. Obama has the power to sign a law mandating that everyone buy a govt approved health insurance.

Looks like Stengel either doesn't know the difference between a request and an order, or he hopes we don't.
(This is in addition to the other problem noted by the author.)

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 GWB
   06/24/11 16:54

"...a bill asking Americans to..."

Does anyone else note the verb in this passage? Even discarding the difference in enumerated powers, isn't that word - "asking" - a HUGE difference from an actual mandate? As far as I can tell, the ACA doesn't *ask* us, it *tells* us we must buy medical 'insurance'.

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   06/24/11 17:02

The verb choice struck me as odd, too, so I looked it up.

"...[E]very citizen... shall... provide himself with a good musket...."

That actually isn't a request.

Mr. Azerrad's points regarding this remain sound.

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   06/24/11 17:06

That is a lot of little dots you have there. Mind displaying the full quote?

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   06/24/11 17:11

The Second Militia Act of 1792 actually stated that all men between 18 and 45 were conscripted into their State militias, and were mandated to buy and keep available a musket or firelock, a bayonet, powder, ball ammunition, etc.

External Link 

Some on the left have tried to use this act in support of the healthcare mandate, but I don't see how that works, as I don't think the SMAo1792 was ever challenged in the Courts, probably because the Constitution specifically sets forth that the Legislative Branch is responsible for setting up a militia.

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   06/24/11 17:17

I probably should have read the Heritage blog article in the link provided by Mr. Azerrad before posting my earlier response, as it much more elegantly makes the point that I was trying to make:

External Link 

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   06/24/11 17:14

With regard to the slavery issue and the 3/5 person question, the liberals also conveniently forget that the Constitution was amended to fix these problems. They always forget about amendments. The framers of the Constitution new that they could not account for everything so they included a mechanism to change the Constitution. Instead of just allowing judges to randomly change it, they created a process to adjust the Constitution to future changes. In order to protect our rights they established a high threshold to adopt amendments. Why do liberals always forget about the amendment process?

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   06/24/11 17:18

Henry Luce is turning in his grave.

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   06/24/11 17:19

So according to Time everytime there is:

1) A new technology
2) new social trend
3) new celebrity

not forseen by the Constitution it needs to be re-written?

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   06/24/11 17:24

not re-written, ignored

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   06/24/11 17:27

The insight that the subject matter of the Constitution is human nature cannot be repeated too frequently.

Mr. Stengel ought not be accused of simple ignorance. He is actively promoting a key piece of the Statist agenda: to obliterate the Constitution via NewSpeak re-interpretation. Mr. Stengel's mendacity should be recognized by awarding him the title of Ignoranus-In-Chief.

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Jonathan W.
   06/24/11 17:44

"[The Framers] also gave us the idea that a black person was three-fifths of a human being."

Let's go to the text, shall we?

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

The phrase "three fifths of all other Persons" refers to slaves. Thus the Constitution refers to slaves as Persons, not as fractions of Persons.

Note also that "Indians not taxed" were not counted among the "Number" used in the apportionment of taxes and representatives. I suppose this means that the Founders regarded Indians who were taxed as full humans but Indians who were not taxed as non-humans, right?

The "3/5 of a human being" myth is pathetic. It doesn't even pass a smell test.

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   06/24/11 18:01

What's pathetic is a shopworn meme.

Anything else?

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   06/24/11 18:13

One thing I noticed in the Time story after reading it again is this: "Well, since George Washington didn't even dream that man could fly..."

Washington didn't have to dream because men were flying in hot air balloons. GW mentioned them in at various times in his writings. How deep is this Stengel fellow's ignorace?

Richard Brookhiser wrote a book called "What Would the Founders Do?", which answers the kinds of questions Stengel is incapable of answering. Highly recommend it.

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