Two Cheers for a Congressional Reading of the Constitution

More

>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Civil Liberties Union, not the American Constitutional Union, meaning that if the First and 14th Amendments were repealed the ACLU would not abandon its belief in free speech and equality (although it would be a lot less capable of protecting them).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.

Jump to comments
Presented by

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

Get Today's Top Stories in Your Inbox (preview)

CrossFit Versus Yoga: Choose a Side

How a workout becomes a social identity


Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

CrossFit Versus Yoga: Choose a Side

How a workout becomes a social identity

Video

Is Technology Making Us Better Storytellers?

The minds behind House of Cards and The Moth weigh in.

Video

A Short Film That Skewers Hollywood

A studio executive concocts an animated blockbuster. Who cares about the story?

Video

In Online Dating, Everyone's a Little Bit Racist

The co-founder of OKCupid shares findings from his analysis of millions of users' data.

Video

What Is a Sandwich?

We're overthinking sandwiches, so you don't have to.

Video

Let's Talk About Not Smoking

Why does smoking maintain its allure? James Hamblin seeks the wisdom of a cool person.

Writers

Up
Down

More in National

From This Author

Just In