THE CONSTITUTION FEBRUARY 8, 2013
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Last Monday night, February 4, when talk-show host Stephen Colbert demanded that his guest, Supreme Court Justice Sonia Sotomayor, reveal her "most conservative belief," Justice Sotomayor shot back, "I believe in the Constitution." Colbert parried, "Then I believe you're not a Democrat."
Laughs all around. But, in reality, the laugh is on Democrats and progressives. For decades, they have shied away from embracing the Constitution or showing why it supports their goals. Meanwhile, Republicans and conservatives never miss an opportunity to wrap their agenda in the founding documents and their framers. For example, in last October's first presidential debate, when moderator Jim Lehrer asked the two candidates for their respective philosophies of government, President Barack Obama stumbled through his answer without once mentioning the Constitution. In contrast, Mitt Romney deftly pointed to the backdrop behind the stage, a blow-up photograph of the original handwritten text of the Declaration of Independence and the Constitution, and said, "The role of government is to promote and protect the principles of those documents."
The time may be at hand when progressives change their habitual tone-deafness to constitutional argumentation. If so, the change agent will be Obama himself. Since his re-election, the president has not only pushed an unabashedly progressive policy agenda. Less noted, but more novel, he has grounded his political case for that aggressive agenda in the "enduring strength of the Constitution" and the ideals of its framers. Largely ignored on the left, Obama's out-of-the-box tack has provoked ire on the right. Last week, the Republicans' top Senate Judiciary Committee member, Senator Charles Grassley of Iowa, delivered a lengthy riposte to the constitutional brief Obama included in his January 16 opening pitch for strengthened gun regulation. "The president's remarks," Grassley complained, "turned the Constitution on its head." Similarly miffed, Paul Ryan scolded Obama for "invoking the Constitution and Declaration" in his inaugural address, "sort of as a means to legitimize his very partisan, very ideological agenda."
In his inaugural, Obama's evident first goal was to knock down the claim endlessly reiterated by Ryan and his allies, that the 1789 Constitution mandated "small government," incompatible with twentieth and twenty-first century progressive reforms. "The patriots of 1776," he gibed, "did not fight to replace the tyranny of a king with the privileges of a few." Hence, their vision, and the words they drafted to enact it, are hospitable to laws passed by subsequent generations, as they have "discovered that a free market only thrives when there are rules to ensure competition and fair play." In addition to this populist thrust, the president offered a second originalist rationale for activist government. Government power, he argued, is often necessary to give real-life meaning to the individual rights prescribed by the Declaration and the Constitution: "While these truths may be self-evident, they've never been self-executing . . . . [P]reserving our individual freedoms ultimately requires collective action."
Obama deployed this rights-based defense of affirmative government to support enhanced firearms regulation, in unveiling his gun control initiative. While acknowledging the Second Amendment, he cited other constitutional guarantees—free exercise of religion, peaceful assembly, and life, liberty, and the pursuit of happiness—as rights also to be weighed in calibrating the government's responsibility to curb the threat and reality of gun violence. Indeed, it is this specific claim that provoked Senator Grassley's push-back. "The Constitution," Grassley insisted, "limits only the actions of government, not individuals," adding that the "President reads the Constitution differently than it has ever been understood."
As it happens, it is Grassley's account of constitutional history that is wrong. While Obama's reading may push the envelope of current constitutional doctrine, it echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth, and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent private interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to "enforce" that responsibility.
Thus, in addition to yoking contemporary progressive goals to the vision of the Revolutionary War generation, Obama's emergent constitutional canon appears bent on revitalizing a cornerstone of the Civil War era's—more unequivocally progressive—vision. Indeed, he seems already to have sparked an incipient dialogue around that prospect.
By engaging the right on the meaning of the Constitution, Obama has broken new ground. For progressives, he has sketched a fresh template for countering their adversaries' long-unanswered constitutional narrative.
Simon Lazarus is senior counsel to the Constitutional Accountability Center, a public interest law firm, think tank, and action center.
5 comments
Are either of these opposing groups advocating for some constitutional amendments? Efforts to create legislation should consider established constitutional principals. Nobody wants to enact laws that will be successfully challenged in Courts on constitutional grounds.
- Doug12
February 8, 2013 at 11:46am
"In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent private interference with the exercise of individual rights created by constitutional prohibitions on government." No, that's not correct. "Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties." Yes, that's correct. Why make such a broad statement that isn't correct, only to follow that statement with a very narrow qualifier that is correct. I'm all for progressives taking back the constitution, but I'm against constructions that are indefensible. Only last year C.J. Roberts reminded us that the power of the federal government to interfere with private conduct is limited with his very narrow construction of the commerce clause; what Roberts gave (he upheld the mandate and ACA) he more than took away (he circumscribed the federal government's power to interfere with private conduct). A short term victory, but a long term defeat. I'd approach the subject more generally. For example, Jefferson, who was a proponent of limited federal government (that was what the election of 1800 was all about), once President, expanded the federal government more than any President by more than doubling the size of the nation (the Louisiana Purchase) and deploying federal troops all the way to the Mediterranean to battle Muslim pirates. As to the former, he did it without even consulting Congress, this after first telling his advisers that it would be necessary to get Congressional approval because the President lacked the power to act alone. How did he rationalize his unitary action: the nation's security was dependent on a strong economy and a strong economy was dependent on the free flow of commerce on the Mississippi River and through the port of New Orleans. I'm not sure even Hamilton would have agreed with such an expansive view of the power (and role) of the federal government; Jefferson, we might say, went to China.
- rayward
February 8, 2013 at 2:03pm
Simon, welcome back from the ..(guess where).
- basman
February 8, 2013 at 6:02pm
2/8/13/ 6:55 p.m./est/////...In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent private interference with the exercise of individual rights created by constitutional prohibitions on government... ///// This is too tightly wrapped to the point of convolution and needs some unpacking.////"They" is the reconstruction Congresses.////What they believed was consitent with SCOTUS precedent.////Congress was empowered by the Constitution by legislation to prevent a certain kind of private interference./// That interference was with individuals exercising certain specific rights./// And the rights were those emerging from the Constitution's restrictions on, limits on government action.////If I have that right it's not clear to me how voting fits in with rights emerging from prohibitions on government action, and I'm not even sure what general rights emerge from those prohibitions.///In the example, the congresses, "they," held that the federal government was responsible to prevent private citizens from interefering by intimidation and violence with the rights of other individuals, former slaves, from voting and enjoying other liberties guaranteed by the Constitution.///What confuses me is, firstly, how restrictions on government action--for example--"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."-- "creates" rights. My understanding of this is that these rights are inalienable to human beings and so precede the state and that, for example, the First Amendment recognizes that inalienabilty and seeks to protect. It doesn't create them.///My second piece of confusion is how voting is created by a prohibition on government action. The 15th Amendment says "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." This prohibition, in these terms similar to the First Amendment, doesn't create a right. It recognizes a right, voting, whether its ultimate source in theory is positive law or natural law--as with First Amendmernt guaranteed rights-- I'm not sure.///Anyway that's my confusion on the statement I find packed tight to the point of convolution. How Rayward disagrees with the first statement and agrees with the second confuses me even more.////
- basman
February 8, 2013 at 6:57pm
By the way, not for nothing but there has been for at least a decade a school of liberal originalism in constitutional interpretation led by Jack Balkin and like minded constitutional theorists fighting originalist fire with like fire. Maybe, I don't know, Obama's words herald the public political version of that school of legal thought.
- basman
February 8, 2013 at 11:05pm