The Corner

Prepping the Constitutional Battlespace

As Victor has noted, no one on our side should be surprised by this instantly notorious New York Times piece by Adam Liptak. Ostensibly a more-in-sorrow-than-in-anger look at how and why the U.S. Constitution is no longer the role model for “emerging democracies” it once was, in reality it’s just more covering fire for the Left’s coming all-out assault on the history and nature of our country. All delivered with that lovable Lefty Sneer we’ve come to know so well:

The Constitution has seen better days.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

In 1987, on the Constitution’s bicentennial, Time magazine calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”

A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

The study, to be published in June in The New York University Law Review, bristles with data…

Well, then, if it’s bristling with data, it must be scientific! And even if the story’s bristling data points are true — that other countries’ constitutions are less similar to ours than formerly, so what? Among other things, American exceptionalism allows us not to give a damn about what other countries think or do — a notion that gives the vapors to the one-world, kumbaya, kindergarten playground set; the “pansy left,” in George Orwell’s felicitous phrase.

But that’s not the the point of the story at all. The real editorial mission is the continuance of the Left’s steady campaign of demoralization, designed to de-legitimize the foundational principles of the United States, the better to effect the real “fundamental transformation” they hope to deliver beginning the night of November 6, if and when President Obama no longer has to face the ballot box. 

#more#Liptak gives the game away right here:

The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.

Shades of Ezra Klein, one of the Washington Post’s kiddie kommentators who famously remarked that the Constitution is, like, you know, old and confusing. And “terse” is perhaps better expressed by “concise” — a virtue, not a failing. 

But the notion that the Constitution “guarantees relatively few rights” is the kicker. Obama himself, as Victor noted, famously called the document “a charter of negative liberties.”

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it Id be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. 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 doesn’t say what the Federal government or State government must do on your behalf.

Note that Liptak, hearkening to the sound of his master’s voice, finds the Constitution of “little current use” to a hypothetical new African nation (thus, like Obama, sneaking race into the discussion) and its “waning influence” may be — hooray! — linked to a “general decline in American power and prestige.”

But the primary argument in this nasty little piece of work is the notion that not enough “rights” — which in leftist parlance generally means “stuff we want but don’t want to have to either work or pay for” — are guaranteed in our founding document:

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

Plus, according to Liptak, the Canadians have a better constitution than we do.

Of course, the Constitution enumerates federal powers, not citizens’ rights — those are covered by the Bill of Rights and, universally, by the Ninth and Tenth Amendments. Here’s the Ninth:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Unless you’re Ezra Klein, it’s hard to see how that’s confusing. But just in case, let’s try the Tenth:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution could not be much clearer — or terser — than that. 

It’s easy to dismiss the Liptak piece as just another example of the Bizarro World of Manhattan’s Upper West Side, where there are almost never any consequences to a world view that is completely divorced from reality.

But it ought not to be lightly dismissed. Obama has made his disdain for the constraints on presidential power abundantly clear and if he hopes to get reelected, he needs his media buddies to keep reinforcing the narrative that he is hamstrung by that pesky, old, terse, and confusing Constitution.

How the heck can you expect fundamental transformation and wondrous change with something like that in the way?

Michael Walsh — Mr. Walsh is the author of the novels Hostile Intent and Early Warning and, writing as frequent NRO contributor David Kahane, Rules for Radical Conservatives.


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