Unlike John Hinderaker, I’m not going to mock the New York Times’s “Reading Between the Battle Lines of the Constitution: An Annotated Guide”.
The aim of the piece is to furnish “a guide to some of the [Constitutional] clauses most revered, and disputed, by advocates on either side of the political spectrum”. The list contains eleven items. Some of them actually are either “revered” or “disputed” or both. The selection is, as we shall see, a little peculiar. Yet more peculiar are the discussions that accompany them.
We begin with that pons asinorum, the “Three-Fifths Clause” (Art. I, §2, cl. 3). Since this provision lost all force with the Enactment of the Thirteenth Amendment, after which there were no longer any non-free “other persons”, and was repealed by the Fourteenth Amendment, I doubt that anyone outside an asylum either reveres or disputes it. (But the Times does slip in the absurd suggestion that “Tea Party constitutionalists” “embrace the Constitution with all of its amendments included” only “for the most part”.) The accompanying “annotation” commits an easily refuted (but, alas, not uncommon) historical blunder. The clause deals with the allocation of seats in the House of Representatives. As every schoolboy ought to know, the anti-slavery delegates to the Philadelphia Convention wanted to count slaves as zero-fifths of a person for this purpose and reluctantly accepted three-fifths as a compromise. They lopped off forty percent from the number of slaves not, as the Times insinuates, because they did not believe in “equal protection of the laws and due process for all” but in order to limit the legislative power of the slave states. I will add, in fairness to “critics of the Tea Party”, not all of whom are bone-headed, that very few of them, outside strange places like the Times editorial offices, “point to this clause in the original constitution as proof that the Tea Party wants to take the country backwards”.
The enumeration of the powers of Congress (Art. I, §8) is certainly “revered”, by those who believe that the Founders were telling the truth when they said that the new federal government would have only specifically delegated powers, and “disputed” by progressives who prefer that it be able to do anything not explicitly prohibited. The Times doesn’t say much about the merits of the positions, merely quoting the Taxation Clause and noting that the Supreme Court upheld the Social Security Act partly on the basis of Congress’s power to “lay and collect
Taxes . . . [to] provide for the common Defence and general Welfare of the United States”. No real howlers here, but nothing enlightening either.Still in Article I, Section 8, the Times quotes the Commerce Clause, granting Congress the power “to regulate commerce with foreign nations and among the several States”, whose expansive interpretation by the courts it calls “the biggest source of complaint for many Tea Party activists”. That’s true enough. On the other hand, I’ve never heard anyone associated with the Tea Party argue that “this clause was intended to govern only interstate transportation”. The area of dispute between progressives and conservatives is whether Congress can regulate every activity and non-activity that has economic consequences. The progressive position amounts to plenary power for the central government and makes the enumeration in Section 8 superfluous.
Three clauses of Article I, Section 8, grant Congress power over military affairs. The Times presents, as if it were a serious argument, “Under strict interpretation of the Constitution, there would be no Air Force – there is no mention of it because, of course, the framers weren't counting on the existence of those modern flying contraptions we know as airplanes.” Airplanes are, of course, a weapon utilized by armies and navies, and the Constitution obviously doesn’t freeze American military technology at the level of 1789. The Times deploys this absurdity as evidence “that we have little in common with the framers, and that therefore it is a given that the Constitution would evolve as the country did”, adding an incomprehensible parenthesis: “(We have more in common with modern-day Canadians, [progressives] note, and we’d never think of ceding our sovereignty to them.)” (John Hinderaker: “Apparently the Times thinks that if we follow the Constitution, we are ‘ceding sovereignty’ to the Founders, as though they were a foreign invader.”)
Next comes the Necessary and Proper Clause (Art. I., §8, cl. 18). To the Times the reason for allowing Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof” was “to allow the Constitution to evolve”. We’re then reminded that Alexander Hamilton cited this clause “as the justification for establishing a central bank”. That he did, on the grounds that the proposed national bank was “necessary and proper” for carrying out several of the enumerated powers
(e. g., to regulate interstate commerce and to make rules concerning the property of the United States). His opinion on the subject, far from treating “necessary and proper” as “broad language” with a covert “evolutionary” purpose, devotes a large portion of its space to a precise definition of those terms.Moving on to the Presidency, the Times asserts that Article II “is notably fuzzy on what the president actually does”, favorable citing a blogger’s characterization: “surfer-dude vagueness”. Given that the draftsmen of the Constitution were not writing at the beginning of history, I’m not sure that “the executive Power” – long exercised by the English Crown and colonial governors – was a “fuzzy” notion. The Times overlooks many interesting issues involving Presidential authority to highlight one that is on the fringes if not wholly imaginary: “Constitution classes that have become popular among many Tea Party supporters argue that this article says nothing about all the cabinet departments that the executive branch now oversees: the departments of Education, Housing and Urban Development, and so on.” Wouldn’t it have been more helpful to highlight issues that visible Tea Partiers have raised, such as whether the Obama Administration’s proliferation of “czars” unconstitutionally circumvents the Senate’s right to “advise and consent”.
An oddity here is that, no longer than two years ago, the Times was sure that the Constitution stringently defined and limited Presidential authority. There was no “surfer-dude vagueness” when George W. Bush was holding captured terrorists at Guantanamo Bay, refusing to offer them civilian trials and targeting them with killer drones. I suppose, though, that those practices are now noncontroversial; the Tea Party doesn’t lament a Democratic President’s resort to them, while progressives suddenly seem blind to them.
All that the Times says about the Supremacy Clause (Art. VI, §2) is that “Progressives argue that [it] makes illegal the laws that several states have passed or proposed to nullify the federal health care law.” Stated that way, there’s nothing to argue about. The laws to which the Times refers, rejecting the health insurance mandate, are conceded on all sides to be primarily symbolic. Again, there are many interesting and timely Supremacy Clause issues, such as those raised by Arizona’s recent enactments concerning illegal immigrants. Rather than discuss them, the Times prefers whacking at a straw man.
The Times can’t be faulted for stating that “Tea Party activists and constitutional originalists” invoke the Tenth Amendment as “evidence that the framers meant to protect the central role of the states”. It can be faulted for linking the Tenth Amendment to the theory that the states have the right to nullify federal laws. The proponents of nullification didn’t rely on the amendment; their contention was that the Constitution was a compact among the states and that each state had the ultimate authority to determine whether federal laws conformed to the Constitution. (John C. Calhoun, the nullification theorist par excellence, saw each state as, in effect, a Supreme Court.) Woefully incomplete is the statement that, “Nullification
was . . . the rallying cry for pro-slavery politicians before the Civil War and for segregationists in the 1950s and 60s.” First adumbrated by Thomas Jefferson and James Madison (neither of whom had any desire to protect slavery), it was invoked by anti-war New Englanders during the War of 1812 and then by opponents of protectionism. Note that the only Acts of Congress that any state has ever explicitly declared null were the Tariffs of 1828 and 1832. In brief, nullification isn’t a Tea Party doctrine, isn’t based on the Tenth Amendment and wasn’t associated historically only with the defense of slavery and segregation.The Thirteenth, Fourteenth and Fifteenth Amendments supposedly “to progressives, illustrate how the power of the federal government was deliberately expanded by votes of the states over the nation's history”. To non-progressives, they illustrate that the proper way to bring the Constitution “up to date” is to amend it in the manner provided therein.
The discussion of the Sixteenth Amendment is so bizarre that it must be read to be disbelieved:
The 16th Amendment: Tea Party activists and some Republican politicians, such as Senator Jim DeMint of South Carolina, argue that the income tax, established in this amendment, contravened the Constitution, because an earlier clause, in Article I, Section 9, had established that taxes could not be laid except “in proportion to the Census or Enumeration” ordered by the Constitution.
Many new Tea Party legislators campaigned on a repeal of this amendment. Progressive constitutionalists again argue that this was a deliberate affirmation of the broad powers of Congress – passing an amendment requires approval by a supermajority of states. (Can anyone imagine 38 state legislatures voting, in the current climate, to give the federal government more power to tax?)
John Hinderaker, who discusses these weird paragraphs at length, has traced the claim about Senator DeMint to a distortion by a left-wing blog: The Senator observed that the original Constitution had no provision for an income tax and implied that he would have liked it to stay that way. He didn’t argue that the Constitution is unamendable (nor, let me add, did he adopt the silly argument, which circulates in the fever swamps, that the Income Tax Amendment was never actually ratified). As for the rest, this amendment, like the other 26, shows that there is a proper way to amend the Constitution, one that does not depend on reinterpretation of allegedly vague language.
Coming to the end, the Times says, “Many new Tea Party legislators also campaigned to repeal [the Seventeenth] amendment, which took the power to elect United States senators out of the hands of state legislatures and gave it directly to voters.” Many? A handful of candidates (mostly defeated, so far as I can tell) did mention this issue (not very loudly) during the recently concluded campaign, but returning Senatorial selection to the legislatures is, for the most part, a niche crusade, not an important part of what the Tea Party stands for. (For an example of a rational and sober case for repeal, vide this essay by Todd Zywicki, whose completely fails to convince me.)
About Constitutional controversies, it would be hard to pen anything shallower or more ignorant than what the Times has presented. Nonetheless, the exercise is useful. It’s true that it wouldn’t get better than a “D” in any respectable high school civics class, but it does shine a bright light on the mentalité of the progressives at “America’s newspaper of record” (or, at least, the reporter who produced this dog’s breakfast and her editors): They dwell in a universe widely separated from our own, a place where mental fun-house mirrors distort everything that the Timesman sees.
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