Bench Memos

The Vacuous and Confused “Whole Constitution Pledge”

Various groups on the Left are now inviting folks to sign onto their “Whole Constitution Pledge.”

I confess that I hadn’t been aware that there was anyone out there professing fealty to a partial Constitution. To be sure, various folks across the ideological spectrum offer competing understandings of constitutional provisions and choose to emphasize some provisions rather than others. But that’s surely as true of “constitutional progressives”—the latest label the Left has conferred on itself, after stigmatizing and discrediting its previous labels—as of anyone else.

From its text, it appears that the pledge is aimed primarily against those persons who “have advocated repeal of Amendments, including the 14th Amendment,[*] the 16th Amendment, and the 17th Amendment, that make our Constitution better and this country great.” But it’s one thing to oppose the substance of proposed constitutional amendments, and quite another to insinuate that those who try to avail themselves of the formal amendment process set forth in Article V of the Constitution itself don’t believe in the “whole Constitution.”

Indeed, the pledge itself celebrates those previous “generations of Americans” who “have created a ‘more perfect union’ through constitutional Amendments.” So unless the pledge organizers maintain that those previous generations did not believe in the “whole Constitution” (since they acted to amend it), they can hardly make the same charge against those seeking to amend it now.

It is the Left that is much more vulnerable to the charge that it has pursued illegitimate means of changing the de facto meaning of the Constiution. As Ramesh Ponnuru points out in a fine essay on the same general topic in the current issue (bearing a cover date of Sept. 19) of National Review:

[T]wo 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 [i.e., by mistaken Supreme Court decisions].

* From the video available on the pledge page, it appears that the alleged proposal to “repeal” the 14th Amendment is limited to its conferral of birthright citizenship. Or perhaps I should say “putative conferral,” as there is a dispute whether the first sentence of section 1 of the 14th Amendment is properly construed as automatically conferring citizenship on anyone born in the United States. (Oddly, the video highlights all of the first sentence of section 1 except the phrase “subject to the jurisdiction thereof” that some rely on to contend that it doesn’t confer birthright citizenship.) Whatever one’s view on this dispute (I’ve never delved into it), I don’t see how it is beyond the pale of reasonable argument for someone to maintain that American citizenship ought not be available by, say, birth tourism. Perhaps the pledge organizers agree; that may be why they instead make the false and inflammatory suggestion that there is an effort underway to repeal the entire 14th Amendment.

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