Postmodern Conservative

Constitution Day, 2014

It was the worst Constitution Day ever.  My president had promised us all that after the November election, he would do a “Big Amnesty,” a move that Ross Douthat and I described, correctly, as amounting to raw theft of legislative power by the executive branch, and as one of the most blatant and far-reaching violations of the document ever contemplated. 

So I went out to the public square and asked my fellow citizens what they felt about it.  Most of them hadn’t heard, or regarded the fuss as an aspect of “the immigration issue.” 

So I went to my facebook feed, to see if any of my liberal friends, who so often post on political topics such as the need for a higher minimum wage and so forth, had any protest to make.  Surely they were now ready, at least on Constitution Day, to make some noise against Obama’s promise.  But no.  I mused that I could post something about it again, but I’d have to figure it would only be for my sake—only a handful of persons would “like” it or respond.  I would be the guy interrupting everyone’s facebook time with worries about the Constitution.  Nah.  I’d already exceeded my three-political-items a month limit anyhow, I figured.

So I went to the conservative websites, and I learned that Senator Ted Cruz had put up a petition to oppose the Big Amnesty.  All right!  So I went and signed it—but then I noticed:  all of Cruz’s bullet-points were against the policy, not the unconstitutional means of doing it.  Now sure, I’m against the policy in a big way—despite my San Diego-bred prejudice in favor of nearly all persons and things Mexicano, I’m against actions that will legitimate and cause more illegal immigration.  Horrible policy, were it merely a democratically-arrived at policy decision.  But the really scary thing proposed here is not the giving of a quasi-amensty to five million or so, but the doing it in an uanti-democratic and unconstitutional way.  Why isn’t Cruz making a big deal of that?  How can he possibly announce this new petition on Constitution Day and not make that aspect the centerpiece of his effort? 

So I went to a Constitution Day debate that featured a leading conservative champion of robust, but scrupulously constitutional, presidential prerogative power for foreign policy and military purposes, John Yoo.  Yoo’s performance was in general very under-whelming—either he was off his game or is simply a much better writer than speaker—but here’s the shocking thing:  he barely even mentioned the president’s promise to just say the hell with the separation of powers. 

Much better in all ways was his opponent, the Democrat-voting scholar Jonathan Turley.  He at least mentioned it, and with some heat.  He at least brought some passion to the table, saying that Obama, whom he voted for, “is the president Richard Nixon wanted to be!” and that “Obama’s becoming the danger the Constitution was designed to avoid!”  Wow.  The audience, mostly students at Christopher Newport University, warmed to his comments all right.  

I couldn’t warm to them entirely—I knew that with respect Turley’s other big contention, that modern presidents, Obama and Bush II especially, have increasingly violated the Constitution with respect to war-powers, my position was closer to Yoo’s than his own.  I think Turley errs by claiming that on such war-powers issues, the correct interpretation of the Constitution is entirely Madisonian and not at all Hamiltonian, such that Congress must generally have say on whether the President can enter our forces into armed conflict.  There’s a lot one could say about this position, which tends to be backed more by liberals than conservatives.   I have a real measure of respect for it while disagreeing with it, and I like the constitutional seriousness it evokes from liberals, especially lately, as witnessed by even Bruce Ackerman coming out against Obama’s attitude towards the Constitution, and by my Virginia Senator Tim Kaine exploring new ways to legislatively strengthen the principles of the War Powers Resolution.  In fact, as I recalled this similarity Kaine had with Turley, I also remembered that he recently had the honor of being one of the few Democratic Senators who voted against the recent Harry Reid-pushed amendment to curtail the 1st amendment protection of free speech.  Kaine has a real claim to moderation, and to seriousness about the Constitution. At least as those are understood in our day.

So I went to Senator Kaine’s website.  Surely by now this paragon of Rigorous Adherence to the Constitution would have answered the question put to him a Weekly Standard reporter back in the spring: “Are there any parts of Obamacare that the president can’t suspend?”  Surely by now someone would have demanded he answer this question as applied to the Big Amnesty promise, such that the question becomes “Are there any parts of Obamacare, or immigration law, that it would be unconstitutional for the president to suspend or to refuse to enforce?”   Surely he would have by now announced his shock that Obama would promise to act in this way on immigration.  But no, there was nothing, just a link to his demand yesterday that the president obey the War Powers Resolution and Article I by seeking congressional approval to attack ISIL.

I would like to pose a question to my Senator.   It is this:  “If you have no apparent constitutional objection to the president suspending any part of Obamacare or immigration law, why would it not also be constitutional for him to suspend any part of the 1973 War Powers Resolution, or any part of the War Powers Consultation Act of 2014 you’re hoping to get Congress to pass?” 

People, tell me, is there anywhere for me to go?  When there was little response to the posts I wrote here at NRO this summer, namely, “The Case for Formally Threatening Obama with Impeachment Right Now,” “Ross Douthat and the Week of Obscene Silences,”(linked above) and “Scary Stuff,”  was that a sign that, apart from Turley and a few others, I am largely alone on this?  Am I just too school-boy earnest on this?  Or is the Constitution just too hard to understand?  Even when the issue centers on the chief executive promising to exercise a legislative power not granted to him in the text?  

Political commentator on the Ricochet blog Claire Berlinski last week reported the results of an experiment she conducted, where she simply ignored the news for two or three weeks to see if she would be happier, more well-adjusted, etc.  And guess what? It worked!  Happiness is not knowing the news.

The news on Constitution Day 2014 is that our president has promised us that he will violate the Constitution after the election in an unprecedentedly blatant and major way, and that you, my fellow citizens, my friends, my newscasters, even my fellow conservatives, and even my supposedly moderate and oh-so-Constitution-focused Senator Kaine, you make no protest against it.  You see the moment coming, as a man at a station sees a locomotive approaching from a distance, glimpsing it here and there as it silently winds down the mountain curves, and there you stand, doing nothing.  

You are telling your president that you accept it.

So to Jonathan Turley, but not to you, I tip my hat this Constitution Day.  Regrettably, I can’t wish him, nor anyone, a “Happy Constitution Day.”  No one can.  For in 2014, the day is either made a Happy one by forgetting all about Constitution, or an unhappy one by remembering it.

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