Ezra Klein’s declaration that the Republican plan to require citation of Constitutional authority in new legislation is “a gimmick” because it was written in a different age and has no binding power caused much head shaking, including here at OTB, and some outright ridicule. But, while we disagree at the margins, he’s substantially right.
In a posting seeking to clarify, correctly conceding that “when a lot of people misunderstand you at once, the fault is usually yours,” he explains:
Asked if it was a gimmick, I replied that it was, because, well, it is. It’s our founding document, not a spell that makes the traitors among us glow green. It’s also, I noted, a completely nonbinding act: It doesn’t impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.
The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn’t. That’s bunk, of course: It’s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it. And they tend to disagree about it in ways that support their political ideology. I rarely meet a gun-lover who laments the Second Amendment’s clear limits on bearing firearms, or someone who believes in universal health care but thinks the proper interpretation of the Commerce Clause doesn’t leave room for such a policy.
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So if I was unclear: Yes, the Constitution is binding. No, it’s not clear which interpretation of the Constitution the Supreme Court will declare binding at any given moment. And no, reading the document on the floor of the House will not make the country more like you want it to be, unless your problem with the country is that you thought the Constitution should be read aloud on the floor of the House more frequently.
And, no, he’s not walking back his assertions in face of criticism. See his post “What the tea party wants from the Constitution” from several hours earlier:
Most legislation doesn’t currently include a statement of constitutional authority. But there’s one recent measure that did: Section 1501 of the Patient Protection and Affordable Care Act. That is to say, the individual mandate.
“The individual responsibility requirement provided for in this section (in this subsection referred to as the requirement) is commercial and economic in nature, and substantially affects interstate commerce,” reads the opening paragraph. Shortly thereafter, the legislation makes itself more explicit: “In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.”
Has that statement convinced the GOP that the individual mandate is constitutional? Of course not. Currently, two judges have ruled in favor of the provision and one judge has ruled against. The split has been clean across partisan lines.
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But as the seemingly endless series of 5-4 splits on the Supreme Court shows, even the country’s most experienced and decorated constitutional authorities routinely disagree, and sharply, over what the text means when applied to today’s problems. To presume that people writing what they think the Constitution means — or, in some cases, want to think it means — at the bottom of every bill will change how they legislate doesn’t demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe.
In the comments of yesterday’s OTB thread, Steven Taylor says much the same:
The fact of the matter is, whether we like it or not, understanding exactly what the Constitution means is frequently a difficult process. This fact is made clear not solely by looking at contemporary debates, but by looking at the fact that there were debates over the meaning of the text by politicians who were contemporaries of its writing (often amongst actual Founders).
Further, whether we like it or not, application of the document hass to be done in the context of two+ centuries of practice and court decisions.
When I was studying Constitutional Law a quarter century ago, we used a book by Craig Ducat and Harold Chase called Constitutional Interpretation. Despite being a thick tome, already in its 3rd edition, a mid-year supplement was necessary to account for new landmark Supreme Court cases. [The book, now by Ducat alone, is currently in its 9th edition. It’s now a two-volume set!] And the authors were clear: There really is no such thing as “Constitutional law.” The Constitution is, as a practical matter, an evolving document depending on the composition of the sitting Supreme Court and the interpretation over the years by their predecessors. Or, as the late Justice William J. Brennan famously put it, the Supreme Court operates on “the rule of 5” — that “It takes five votes to do anything around here.” More cynically put: The Constitution means whatever five justices say it does.
My current favorite resource for these matters, familiar to regular OTB readers, is FindLaw’s Annotated Constitution. It includes every word of the original Constitution and its 27 amendments. Which, for those who haven’t looked at it in a while, is incredibly short. Each passage is then connected via hyperlinks to long, discursive footnotes describing the evolution of Supreme Court decisions interpreting said passages. Mere clauses of sentences expand into multi-page discussions, themselves hyperlinked to various cases. And, I would add, the FindLaw crew is quite concise and frugal, hitting only the truly key cases. For all practical purposes, this “annotated” Constitution, not the short version that people can carry around in their pockets, is the supreme law of the land.
The political scientist Edward Corwin famously said of American foreign policy that the Framers had provided “an invitation to struggle” among the three branches of government. Even if we just take the war-making power, we see that the president is the commander-in-chief of the armed forces and appoints senior officials; the Congress declares war, raises the army and navy, and provides funding; the Senate confirms relevant cabinet officials, general and flag officers, and ratifies treaties; and the Supreme Court has original jurisdiction on several relevant matters. It is by no means clear where these powers leave off and the others begin. Over time, presidents have assumed primacy in this struggle, essentially abrogating to themselves the power to send the nation to war. Some argue that this is “unconstitutional” and “contrary to the wishes of the Framers.” But recall that George Washington, Thomas Jefferson, and James Madison all pushed the envelope on presidential power in this realm during their presidencies.
In reality, while my reading of the Constitution is considerably more narrow than Ezra’s, the fact of the matter is that the entire document — not just its portions related to international relations — amounts to an invitation to struggle. Politicians pass laws that they can get through our system and hope that the Supreme Court will let them get away with it. And it’s been like that since the very beginning.
