The Corner

Defenders of the Constitution

A point I wanted to make in today’s Ashcroft-rehabilitation column  but couldn’t for space reasons revolves around Ralph Neas’ strategic new respect for the former A.G.. From the Washington Post’s reappraisal of Ashcroft:

Ralph G. Neas, president of the liberal group People for the American Way and one of Ashcroft’s strongest critics over the years, said the incident told more about his successor, Gonzales, who was one of the two Bush aides at the hospital that night.

“I did not think it was even possible to make John Ashcroft into a civil libertarian,” Neas said in an interview. “But somehow Alberto Gonzales for at least one moment managed to make John Ashcroft into a defender of the Constitution.”

Me: I am sorry, but I just cannot stand the way liberal activist groups claim the authority to designate who is and who isn’t a defender of the Constitution. Neas is a quintessential acolyte-lickspittle at the altar of the Living Constitution. He cheers the most liberal judges with the most elastic, and often absurd, interpretations of the Constitution but he still gets to claim he speaks for it? Please.

I’ve raised this point before in regard to the war on terror. If you believe that the Bush interpretation does violence to the true meaning of the Bill of Rights, that’s a defensible position (whether I agree with it or not). But you can’t be a fair-weather strict constructionist or originalist. For most of the last forty years we’ve heard liberals snort and titter at the idea that the founders’ intent should have much bearing on how we should interpret the Constitution. But, under Bush,  Democratic politicians are suddenly invoking the wisdom of the founders like it never went out of style.

In the past we’ve been told time and again that changed circumstances, modernity, new technology etc virtually require that we “breath new meaning” into the Constitution on issues like gay rights, abortion and affirmative action. But when the subject changes to the rise of stateless terrorist networks in an age where nukes are increasingly available the living Constitution suddenly has a heart attack. If you think the Constitution is an infinitely malleable shmoo where it’s inconvenient, it should be a shmoo in all other circumstances too. 

And, let me anticipate a lot of leftwing email saying that conservatives are hypocritical for suddenly embracing a “living Constitution” standard when it comes to the war on terror. They’re not. Most of the serious conservative arguments about habeas corpus, wiretapping etc are actually deeply grounded in historical precedent and original intent. For the most part Conservatives aren’t finding new powers in penumbras and the like, they’re arguing that Bush’s war powers are within the framer’s intent and the precedents of the last two centuries.

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