by Chidem Kurdas
There’s a ferocious backlash against the Tea Party’s reverence for the U.S. Constitution. Court decisions against ObamaCare’s compulsory health insurance provision have further stoked the hostility.
One common and obvious line of attack is that the Constitution is old-fashioned and out of synch with our world of satellites and Twitter.
To take one example, Elizabeth Drew suggests that “The opening weeks of the new Congress, in particular the newly elected Republican House, had a somewhat comic aspect” in part because the Constitution was read aloud. I’m not sure why reading the Constitution is considered comical, but I suppose this is because the document is seen as fuddy-duddy.
“But the difficulty with the ‘originalist’ view that the Constitution should be applied as the Founders would have applied it (though in 1787 there were no airplanes or Internet) is that it can’t work,” writes Ms. Drew.
Ironically, this type of sneer is itself old—allegations that the Constitution is quaint go back to the progressive movement and the early 20th century. Damon Root in Reason has a great quote. In 1935, when the Supreme Court cited the commerce clause in declaring unconstitutional the National Industrial Recovery Act, President Franklin Delano Roosevelt argued it was absurd to reject the New Deal program on the basis of an ancient law.
“The country was in the horse-and-buggy age when that clause was written,” the President reportedly said.
This horse-and-buggy objection is a trick, a diversion—something one would expect from so cunning a politician as FDR. The Constitution is not about technology, it is about government. It specifies a structure that limits power by dividing it between the states and the federal government and between Congress, the President and the courts.
It was written by men who knew well from history that unchecked power becomes corrupting and repressive. That they did not email or tweet has no bearing whatsoever on the current relevance of the Constitution. Their recognition of the need to impose checks is timeless, because political power remains just as corrupting and repressive as it ever was.
Regarding the fundamental rules for the governance of the country, it does not matter whether people communicate by email or messenger pigeon. Technology changes; the issues of power and its concentration are the same.
Critics claim their dispute is with “originalists” rather than with the Constitution. Thus Jeffrey Rosen recently wrote that Justice Antonin Scalia and other conservatives in the Supreme Court are pragmatists who accept the post-New Deal regulatory state— “he is not proposing a return to segregation and powdered wigs” Mr. Rosen says of Justice Scalia. This leaves isolated Justice Clarence Thomas, an extreme “orginalist” likely to oppose the medical insurance mandate (according to Mr. Rosen).
Embedded in the original Constitution is the method for its own updating. Article V starts with “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution…” and describes the process of making changes. When we say Constitution, we usually mean the original text plus its amendments.
If constitutional challenges to mandatory medical insurance are sustained, its advocates have the option for trying for an amendment. But those who complain of constitutional obsolescence often have no interest in amending it. It’s much easier to twist the Constitution and brand as a “powdered wig” originalist anyone who wants to protect its integrity.