January 18, 2006, 8:25 a.m.
No Controlling Legal Authority
Democrats diss the Constitution.

By George Neumayr

The greatest threats to the Constitution come from the Democrats who rise to defend it the loudest. Both Judge Alito's Supreme Court nomination hearings in the Senate and Al Gore’s faux-momentous ramblings Monday at Constitution Hall in Washington, D.C. display the Democrats’ perverse insistence that they represent the wall protecting the integrity of the Constitution. This is an absurdly grand claim for them to make since ignoring the Constitution as written is the de facto policy of the Democratic party. Hence the Democrats' endless babble about a “living Constitution,” which is just a euphemism for saying that they don’t particularly like the actual one and have no intention of honoring the Constitution the moment it frustrates their ideology and will.

The sheer willfulness of the Democrats makes them the least plausible defenders of the Constitution and the rule of law. Almost every browbeating question the Democrats asked of Sam Alito was designed to make him cry uncle and accept their “living Constitution.” They were testing him not for fidelity to the Constitution but infidelity to it. In effect they were asking him: Do you promise to disregard the Constitution as written and follow our will instead? The nonsensical monologues and hectoring questions about “stare decisis” were simply an attempt to extract from Alito a pledge to cement in place their activists’ rawly unconstitutional jurisprudence.

If the Founding Fathers wanted government by stare decisis, they wouldn’t have bothered to write a Constitution. The essential fraudulence of the Democrats’ stare-decisis claim is evident in their repudiation of the Constitution as itself a precedent worthy of respect.

For Al Gore to say, as he did on Monday, that George Bush demonstrates “disrespect for America’s Constitution which has now brought our republic to the brink of a dangerous breach in the fabric of the Constitution” is rich coming from a Democrat who sees the Constitution as a blank piece of paper on which judicial activists can write whatever they want. Why can’t George Bush say, as the Democrats do, that the Constitution is whatever he wants it to mean?

Of course, Bush doesn’t make the claim that the Constitution is “living,” elastic, a document in need of updating according to whatever this era sees as expedient. But the Democrats do. Their idea of the law amounts to a willfulness writ large. The Democrats constantly imply through their rhetoric that the Constitution is outmoded, that it is nothing more than a relic of reactionaries who didn’t have the opportunity to benefit from a subscription to the New York Times. So what is wrong with reinterpreting it creatively? they imply

How come Al Gore doesn't consider this Democratic claim of superior enlightenment to the Founding Fathers a form of “disrespect”? Moreover, isn’t it disrespectful and lawless to change their Constitution without following the lawful amendment process they set up to do so?

If the Democrats in Washington had the honesty and courage of their convictions, if they really believed that they could craft a more enlightened form of government than the one devised by the Founding Fathers, one that would incorporate all their advanced understandings of moral and political philosophy, they would concretize their “living Constitution” through a new constitutional convention. They would add to the Bill of Rights, say, a specific right to kill unborn children and the aged and infirm while extending a prohibition on cruel and unusual punishment to captured terrorists.

But the Democrats, cravenly aware that their claims to superior statecraft would never survive an amendment process, choose the easier and unlawful route of circumventing the Constitution through capricious activism from the bench. When Al Gore says that under George Bush America has become a “government of men and not laws,” he multiplies hypocrisies. It is not just that he belonged to a wantonly lawless administration which would rifle through the raw files of its enemies and just make stuff up whenever convenient (there is “no controlling legal authority,” Gore said, for example, after he was nabbed in an obvious violation involving campaign finance laws).

The hypocrisy, more than all of that, is philosophical in that the Democrats are committed conceptually to the “rule of men” through their insistence upon an unwritten constitution that goes by the description “living.” Rule by stare decisis (which is now a handy method of fortifying this invented constitution) is rule by men — judges who can decide whenever they feel like it to abandon the real constitution in favor of one that exists nowhere but in their minds and wills.

What Al Gore describes as George Bush's "belief that he need not live under the rule of law" has been on display in the Democrats' agenda and philosophy for decades. They don't call this belief tyranny; they call it progress.

— George Neumayr is a writer living in the Washington, D.C. area.