Tag Archives: constitution

Defending the Tea-Partiers

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As much as I think the tea-partiers are a joke, I do want to defend them a little bit.

Okay, not quite defend them. But I do want to quibble with one criticism about them: that they are apparently hypocritical in defending certain parts of the Constitution while opposing other parts of it. The argument goes like this: if the tea-partiers claim to revere the Constitution, why do some of them want to get rid of parts of it like the Sixteenth Amendment (allowing an income tax) or the Seventeenth Amendment (instituting direct election of U.S. Senators)? And how can they revere a document that legitimized slavery through the three-fifths clause?

As an example, the New York Times yesterday said in an editorial that the Republicans’ desire to read the Constitution aloud on the House floor “is a presumptuous and self-righteous act, suggesting that they alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation. Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”

As another example, Talking Points Memo, a site I read almost every day, is making fun of the Republicans for reading an “amended, slavery-free” version of the Constitution today. The argument again is: look at their hypocrisy! If they love the Constitution so much, why don’t they read the whole thing?

Here’s where I part ways with the Times and TPM.

The thing is, it’s possible to revere the Constitution without thinking that it’s a perfect document. Why? Because it is not really about revering the Constitution; it is about revering constitutional process.

Nobody is saying that the original Constitution was flawless. What they are saying is: look, the Constitution itself includes a mechanism for changing it: Article V, which shows you how to amend it.

Much of legal argument in this country is not about substantive issues, but about procedural ones. In fact, “respecting the process” is itself a substantive value. Look at all the back-and-forth in the Prop 8 case about standing: it’s a procedural issue, but procedural issues are important in our society, because we are not an anarchy or even a pure democracy; we are a constitutional democracy. We respect rules and laws. There’s nothing wrong with changing things, as long as you do it in the right way. You can even change the right way to change things, as long as you do it the right way.

So what the tea-partiers are saying — or at least what they could say — is this: it’s perfectly fine to change the Constitution, as long as you do it the way you’re supposed to. Of course the three-fifths clause was unconscionable — and look, we got rid of it in a way prescribed by the Constitution itself: the Thirteenth Amendment! And nobody is saying to just flat-out ignore the Sixteenth and Seventeenth Amendments; they’re saying, let’s repeal them, in the way the Constitution allows, just as the Eighteenth Amendment (Prohibition) was repealed by the Twenty-second Amendment. (I happen to think the Sixteenth and Seventeenth Amendments are great ideas and that it would be harmful and/or stupid to repeal them.)

What I do think is silly and a bit insulting is for the Republicans and tea-partiers to say that they’re the only ones who respect the Constitution. The Constitution contains lots of vague clauses that can be interpreted in many different ways. There are entire semester-long courses taught about the different ways to interpret the Constitution.

I still think the tea-partiers are a joke, and I don’t know how many of them think about the Constitution this way. But the Times and TPM are being a bit silly here.

Constitution Worship

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One of my old law professors, Mike Klarman, gave a lecture at Johns Hopkins a couple of weeks ago, “A Skeptical View of Constitution Worship.” Here’s the text.

Klarman’s view is that the Constitution doesn’t matter as much in our political values as we think it does. He makes four points:

(1) The Framers’ constitution, to a large degree, represented values we should abhor or at least reject today.

(2) There are parts of the Constitution with which we are still stuck today even though we would never freely choose them and they are impossible to defend based on contemporary values.

(3) For the most part, the Constitution is irrelevant to the current political design of our nation.

(4) The rights protections we do enjoy today, the importance of which I do not minimize, are mostly a function of political and social mores, which have dramatically evolved over time and owe relatively little to courts using the Constitution to protect them.

Here is Klarman’s thesis in a nutshell:

I wouldn’t say the Court never stands up for unpopular rights and unpopular groups, but it rarely does so, and never in the face of overwhelming public opposition.

The main reason for this is that the Justices are too much a part of contemporary culture and the present historical moment to even imagine taking positions contrary to that of dominant public opinion.

The whole thing is worth reading, if you’re interested.

How I Remember Which Amendment is Which

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There are 27 amendments to the U.S. Constitution. The first ten are the Bill of Rights. The Eleventh involved lawsuits against states; the Twelfth revised the procedure for electing presidents and vice-presidents after the original system turned out not to work too well.

The Thirteen through Fifteenth are the post-Civil-War amendments, and they’re generally easy to remember. The Thirteenth abolished slavery; the Fourteenth is a grab bag about citizenship and equal protection; the Fifteenth purported to prohibit the denial of the right to vote based on race.

The amendments since the Fifteenth are hard to keep straight. Here’s how I remember most of them:

SiXteenth Amendment — income taX

SEventeeth Amendment — direct election of SEnators

18th Amendment — Prohibition (many people think the drinking age should be 18)

Nineteenth Amendment — women’s suffrage (not sure how to remember this one: “feminineteenth”? the push for women’s suffrage began in the 19th century?)

20th Amendment — sets Inauguration Day as January 20

21st Amendment – repealed Prohibition — drinking age is 21

22nd Amendment — limits president to two terms (22 has two twos)

23rd Amendment — gives D.C. representation in the Electoral College. Not sure how to remember this one.

24th Amendment — bans poll taxes. Not sure how to remember this one either.

25th Amendment — codifies the process for presidential succession. To be honest, I only remember this one because there’s a “West Wing” episode called “Twenty Five,” where Glen Allen Walken (John Goodman) temporarily becomes president after Zoe Bartlett is kidnapped.

26th Amendment — lowers the voting age to 18. I remember this one by process of elimination, because there’s only one left:

27th Amendment — restricts congressional pay increases; got a lot of publicity when it became law in 1992 because of its unusual story.