Republican Overreach: War on the Framers

By Garrett Epps

"The sleep of reason," Francisco Goya said two centuries ago, "produces monsters." And seldom does reason take a sounder nap than just after an electoral victory for one party or another. Suddenly, the anomie of impotence gives way to the thrill of omnipotence. The people love us! Surely now we can have everything our hearts desire!

But that rarely happens. In fact, over the past half-century, parties swept into power have tended to throw away their advantages by becoming sidetracked on the extreme parts of their agenda. Too late, they discover that the people do not love them; that in fact, they elected them in the vain hope that they would do something about their concrete problems--jobs, housing, the environment--and are displeased when their new leaders hare off after evanescent partisan goals.

Consider, for example, the Republican Congress elected in 1994, which refused to work with Bill Clinton and shut down the government. Their magic moment soon faded, and when they tried to prolong it by impeaching Clinton, the voters spanked them in 1998.

Remember Bush's triumphant re-election in 2004? Almost at once, the Republicans in Congress decided that the fate of Terry Schiavo was the highest priority facing the nation. A palpable sense of unease spread over the electorate; they had voted for the war effort and national security, but now had to fear waking up with Dr. Bill Frist plugging tubes in their arms. In 2006, Congress changed hands again.

Arguably the Democrats made the same mistake in 2008, though I am less sure about that--Obama had run for President, after all, on a platform of passing health care, and he and the Democrats did just that. Nonetheless, something about their performance jarred the voters, or stunned just enough of them into apathy, and now the House, and numerous state governments, have shifted to Republican hands.

The process of overreach may be underway again. But there is something unusually unbecoming about the current Republican rapacity to lock in their victory. Their target this time is not feeding-tube laws, or even federal judges, but the Constitution itself. And the motivation behind the frenzy is transparent; this crowd wants to rewrite our fundamental law to make sure that no progressive policy--no matter how popular--can ever be enacted again.

At first, the Tea Party and the far-right were muttering about the Seventeenth Amendment and the popular election of Senators. If only the perfidious American people had not risen up in the early years of the last century and taken the choice of Senators away from state legislatures, Glenn Beck explained, "Obama's health care bill would never have seen the light of day." This may or may not be true; but if it is, is it a good reason to rewrite the Constitution--and limit the democratic nature of our system? Does empowering one wing of one major party constitute an interest worth enshrining in our 220-year-old Constitution?

(Even Justices can grow giddy. Though it's not customary for Supreme Court Justices to propose rewriting the document they enforce, Justice Antonin Scalia thought repeal sounded like a good idea.)

Since November, the rapture of victory has pushed the right wing further into the maw of madness. Now it's not enough to pick off one amendment or another; now they want to scrap the whole Constitution and put in a new one. Bob Barnes of the Washington Post recently recounted a panel at the Federalist Society at which once-sober academics and lawyers began to drool at the damage they could do in a new constitution convention. A snap convention, they suggested, could lock in amendments requiring a balanced budget, imposing supermajority requirements for tax increases, and giving the President a line-item veto. No more health-care laws in the new, sanctified republic.

The Commonwealth of Virginia, the birthplace of Massive Resistance to school desegregation, has rushed to the convention cause. Bill Howell, the speaker of the House of Delegates, wants states to invoke Article V of the Constitution to demand that Congress call a new constitutional convention. Its task: an amendment that would allow 2/3 of the state legislatures to overturn any federal law they dislike. New House Majority Leader Eric Cantor has expressed interest, because the amendment would prevent "massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care, and intrusions into the private sector like the auto-bailouts." Or, in other words, it would make the Democratic Party--and possibly modern government in general--unconstitutional.

The Republicans have for a generation claimed the mantle of defenders of the Constitution. But Republican "constitutionalism" has always had a peculiar cast: it seeks to defend the Constitution from, well, the Constitution itself. For the past twenty years at least, the GOP has not met an inflammatory social problem that did not require a constitutional amendment to fix it. Flag burning? Gut the First Amendment. Congress needed to be disarmed by a Balanced Budget Amendment, a Term Limits Amendment, and a Line-Item Veto Amendment. Crime would be solved by a Victims' Rights Amendment. Gays must be tamed with an anti-gay Marriage Amendment.

Over and over, in other words, these stalwart patriots told the American people that their Constitution was standing in their way. Just let us gut that old scrap of paper, and the new Holy Commonwealth will begin.

Now we are reaching the apogee of this dishonest madness. Braggarts who bray about their devotion to the Constitution want to tear it up. Teary-eyed patriots who revere the Founders are eager to undo their work. Those who claim to revere the genius of Madison want to replace it with the musings of Cantor and Beck. Let's destroy the Constitution in order to save it, they now propose. And they do not even try to hide the reason: Democrats may not be popular right now, but Republican policies are even less so. Most observers agree that the Obama health-care plan won't be repealed by Congress. Why? The people want the changes it makes, just as they want Social Security, Medicare, and even the Bush prescription-drug benefit. If the right doesn't smash the democratic process, the ignorant people will one day vote again for policies that benefit them.

The people must be stopped.

I can't help wondering: Where are the powerful voices to speak up for the Framers, for the voters, and for the Constitution? Surely Barack Obama's commitment to partisan placation does not extend to cooperating in the dismantling of our fundamental law. Obama, during the campaign, managed to reach the public on a subject as difficult as race. Where is he now? When will he, when will the Democrats, speak up? It is not hard to figure out what they should say. We are the party of the Constitution. We are the guardians of our heritage of law. The extremists want to wreck it.

Could any Democrat, no matter how spineless, think silence in the face of this gibbering wrecking crew is good politics?

Judge J. Harvie Wilkinson III of the Fourth Circuit is nobody's Democrat; he is, deservedly, an avatar of the American intellectual right. Regardless of party, however, no one has ever said he is not intelligent, thoughtful and far-sighted. At the Federalist Society, he chided his fellow panelists about the constitutional convention plan.

"Are we playing with fire?" Barnes reports him asking. "The American Constitution as it exists by and large has served this country well for two centuries. Do we really want to take the chance on trading it in?"

They shall not pass!

This article available online at:

http://www.theatlantic.com/national/archive/2010/12/republican-overreach-war-on-the-framers/67299/