Two Cheers for a Congressional Reading of the Constitution

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>I doubt very much that the most ardent members of the Tea Party derive their notions of freedom from the Constitution. Neither do I. Neither, I suspect, do most advocacy groups, right or left. As former ACLU Executive Director Ira Glasser used to remind us, (and I'm paraphrasing) we were the American Civil Liberties Union, not the American Constitutional Union, meaning that if the First and 14th Amendments were repealed the ACLU would not abandon its belief in free speech and equality (although it would be a lot less capable of protecting them). In fact, the ACLU grew out of opposition to the legalized repression of dissent in the World War I era (often pursuant to the Espionage and Sedition Acts); it was founded in 1920, before the Supreme Court began transforming fundamental liberties -- like freedom of speech -- into constitutional rights.    

And not until the mid-20th century, long after adoption of the 14th Amendment, did the Supreme Court discover a constitutional ban on Jim Crow laws, as a result of a long campaign by civil rights activists. Lawyers like Thurgood Marshall successfully crafted legal arguments that turned a vision of equality into a constitutional right, but if the arguments were forged in law school, the vision was not.  

So even if I took seriously the Republicans' party allegiance to the Constitution, even if I believed the party valued all the liberties lost in the war on terror, or the freedom of and from religion, or limits on executive power when Republicans as well as Democrats are in the White House, I'd still offer only two cheers for the Congressional reading of the Constitution. It's not a cookbook -- at least, not simply a cook book, obviously. It's a combination of objective dictates  -- president may serve only two electoral terms, each state elects two senators, or Congress has the power to declare war (some indisputable dictates are still open to abuse) --  and subjective value statements, like prohibitions on cruel and unusual punishment or unreasonable warrant-less searches.  

How do you craft a consistent, intellectually honest, originalist approach to language like this? How do you reach consensus on the meaning of cruelty, reasonableness, or due process? You don't. Justice Scalia, for example, doubts that the Constitution bars the execution of an innocent person wrongly convicted of homicide. I like to think that a lot of Americans, even those who consider themselves constitutional loyalists, would disagree. When the Constitution was drafted in the late 18th century, capital punishment was still applied to some property and sexual offenses. But I also like to think that most Americans, including most judges, would consider executions of people for offenses like burglary or buggery cruel, unusual, and unconstitutional. Liberty may end up in the Constitution, but it doesn't really begin there.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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