The Corner

‘Breaking Free From the Constraints of the Founding Fathers’

In the last week in the popular press and academic journals there have been several pre-election essays and op-eds about the cumbersome nature of the U.S. Constitution (as we were reminded by the president) and its unsuitability for emulation by other countries (per Justice Ginsburg), given contemporary supposedly superior models. In addition, we are told that food stamps are a great win-win situation for everyone, and that breaking immigration laws are infractions not really violations.

What we have here is an assault on traditional American notions of self-reliance, respect for the law, and a sense of American exceptionalism as embodied by the Constitution. It is weird, to say the least, to even hint of superior constitutional systems elsewhere, given the current chaos in South Africa, and the coming implosion of the European Union — not to mention the mess in the Middle East and Russia.

What’s behind the sudden defiant push-back against traditional advocacy of the old self-reliant, arms-bearing citizen as championed by the Constitution? Give credit to Barack Obama and his supporters. They are seizing the moment in a fashion undreamed of by Bill Clinton in 1996 and framing his reelection as a referendum on the entire American system itself. We see this with Obamacare’s attack on the Catholic Church, with the Obama administration joining with Mexico to sue a state, and with these remarks from our highest officials about the problems with our Constitution.

Classical political philosophers are being proved right: Democracy in its radical form is not just the quest for political power by a majority, but by a majority with less capital than the minority who use power to gain more. But perhaps this most recent skepticism about the Constitution paired with the effort to “spread the wealth” in our society were best previewed a decade ago by Barack Obama himself, when in 2001 he lamented the constitutional barriers to his notions of redistributive change:

To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf, and that hasn’t shifted and one of the, I think, the tragedies of the civil-rights movement was because the civil-rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of powers through which you bring about redistributive change. In some ways we still suffer from that.

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