It always cheers me up to see the original holograph text of the Declaration of Independence reproduced on the last page of The New York Times when I open the newspaper each July 4th. Then, as I always do, when I read the Preamble aloud before dinner, I find Jefferson’s words thrilling—and sobering—he sets a high mark for those of us who want to live under a truly republican government. We understand his concepts significantly differently than he did, of course. We are committed to the notion that the all in all men are created equal has substantive force. And some of us, at least, think that men is a generic rather than a gendered term. We still contest the meaning of life, liberty and the pursuit of happiness, but all of us agree that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. A historically sensitive reading of the Declaration thus reminds us that it was a document written in the conceptual language of 1776. so that we must carefully interpret it to understand what it might mean in contemporary terms.
Another level of ambiguity about the Declaration is that it was written for a very specific purpose: to explain to the world (to the English, really) the causes which impel them (the Americans) to separation. Jefferson and the Continental Congress were framing a case statement for revolution based on the widespread conviction in North America that the British Parliament was depriving Americans of “the rights of Englishmen”—that is, the English were denying us the benefits of what we thought was our Englishness. And so we would have to go it alone, which was a fearsome thought since we were taking on the most powerful empire in the world.
But I think few celebrants this weekend have been worrying about the relationship between the Declaration of Independence (1776) and the federal Constitution (1787). The Constitution was, after all, a reaffirmation of the necessity of central government by those who were more committed to commerce and order than to individual liberty. Indeed, many of the former revolutionaries, derisively labeled anti-Federalists by the proponents of the Constitution, saw the new constitutional structure as a threat to the libertarian republic they believed they had created in 1776. Thus for some Americans, then and now, the Constitution is at war with the Declaration. The relationship of the two documents is not easily explained—and it is seldom the subject of Fourth of July orations.
But our newspapers are full of constitutional discussion these days, and not only because of Senate confirmation hearing on the nomination of Elena Kagan to the United States Supreme Court. Some of us noticed the question Senator Tom Coburn put to Kagan—could Congress pass a law under the Commerce Clause requiring Americans to eat three fruits and vegetables a day? Kagan replied cautiously that she thought that would be a “dumb law.” And of course it was a dumb question—but worrisome because it reflected a major misconception about the nature of the Constitution.
This is apparent in two stories, written within the past couple of days, in The Washington Post and The New York Times describing the peculiar form of constitutionalism being promoted by the conservative Tea Party movement. Kate Zernike, writing in the Times on July 2, describes “the unifying philosophy” of the Tea Party as the “belief that the nation can solve its problems . . . if lawmakers stick to a strict interpretation of the Constitution.” She points out that the party is distributing free “pocket-size copies” of the Constitution and offering short online courses on the meaning of the Constitution for adherents. The Party’s contention is that congressional legislation that is not authorized by a specific section of the Constitution is without force, and their reading of constitutional history is that Congress has been over-reaching itself since the New Deal, so that its powers must be cut back to what they were prior to the administration of FDR.
Amy Gardner published a very similar piece this morning, describing what she calls “a growing effort among conservatives to teach supporters how to do political battle using an inviolable weapon: the nation’s founding documents.” She quotes a Virginia Tea Party organizer as saying that “the founding fathers were very afraid of a central government.” The same fellow has just begun a 12-week class on the Constitution. (Never mind that it was the anti-Federalists who were afraid of government, not the “Fathers” who wrote the Constitution.) Tea Party commentators believe that Congress has stretched the Commerce Clause all out of shape in order to seize power that was intended by the framers to be left to the states.
This is actually a quite plausible view, but their reaction is not, since they clearly do not understand how constitutional change has taken place in this country. We can turn the constitutional clock back (as the Roberts Court is doing), but not through the sort of primitive originalism and strict constructionalism proposed by the Tea Party. To use an example employed even by Judge Robert Bork in his infamous Supreme Court confirmation hearing, if we needed a specific authorization in the Constitution for every Congressional act, we would not be able to have an air force, since the Constitution mentions only an army and a navy.
All democracies contest their history. But we owe it to the founders and framers to argue in a more nuanced and historically sensitive manner. I carry a copy of the Constitution in my jacket pocket, too, but it may not say the same thing that yours does. That is what we need to discuss.
15 Responses to When in the Course of the Tea Party . . .
ledzep - July 5, 2010 at 4:27 pm
A very thoughtful post. I imagine, however, that most populist movements in politics aren’t going to look very historically sensitive or nuanced in their positions when those positions are evaluated on the basis of man-on-the-street type interviews. How about a reference to the Claremont Review of Books, or some other organ that takes itself to be arguing substantially the same case, in the “more nuanced and historically sensitive manner” you suggest.
livefreeordie2 - July 5, 2010 at 11:21 pm
A couple of quick points. . . The Declaration of Independence lays the predicate for the US Constitution. The two documents are certainly not at war. This is especially true with regard to the origin of our rights as Americans – they come from the Creator (call it God, call it Nature), not from the government. The Constitution does indeed lay out the role of the federal government, but the Bill of Rights makes it pretty clear that the Constitution is defines the limits to government. Those rights not afforded to the federal government, or the state governments, are to be left to the people. Unfortunately, our politicians care little for the restrictions thus imposed. And some contend that the meanings can be changed whenever it suits their purposes.If you carry a copy of the US Constitution in your pocket, then the words are precisely the same as in the copy of the US Constitution that I carry. Words mean things. If you really believe that yours says something different, there are only two possibilities: 1. You can’t read. 2. You’d prefer that the words were different so that your public policy preferences would be easier for politicians to implement – the view of a typical statist. (Read Justice Souter’s Harvard Commencement speech for an excellent example of the mental gymnastics performed by those who believe the Constitution doesn’t “say the same thing that yours does.”)
mbelvadi - July 6, 2010 at 7:07 am
Are any of the Tea Partiers looking at their pocket Constitutions and asking where is the clause that makes corporations equivalent to individual citizens under the Bill of Rights? Interesting that they question Congressional overreaching, but will ignore the most eggregious example of Supreme Court overreaching in the history of the country.And I wonder how many of the TPs look at the current copyright terms and question, as Lawrence Lessig did, whether life+70 doesn’t look a bit “unlimited” (within the frame of any one person’s lifespan) in violated of the “limited terms” clause of the Constitution, and that clearly the “Founders” had something much shorter in mind, based on the first copyright terms they actually legislated. I guess TPs only go back to original intent when doing so won’t interfere with the profits and interests of megacorporations. Interesting bedfellows.
behaha - July 6, 2010 at 8:38 am
“The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
nordicexpat - July 6, 2010 at 9:19 am
@livefreeordie2,At the risk of throwing some gasoline into the mix, might I suggest that the one of the causes of the Civil War might have been an inherent conflict between the Declaration and the Constitution?
dank48 - July 6, 2010 at 10:44 am
“A couple of quick points. . . The Declaration of Independence lays the predicate for the US Constitution. The two documents are certainly not at war.”–Livefreeordie2″. . . one of the causes of the Civil War might have been an inherent conflict between the Declaration and the Constitution . . .”–Liverfreeordie2I don’t know which side of his mouth Liverfreeordie2 is talking out of, and apparently he doesn’t either. Stan, in my opinion, this is a great article, and it comprehensively sums up the situation. Our Constitutions do all say the same things, but we tend to read them differently. One problem is, of course, that ax-grinders don’t really want to discuss things calmly and carefully. Funny how the very people who are quickest to claim that others have a hidden agenda (lately most commonly shortened to just “agenda,” for some reason) always seem to have a by no means open agenda themselves.Recognizing our own bias is a more important step to understanding that pointing out the bias of others. Other people’s lack of objectivity is generally pretty obvious to everyone but them. We tend to be a bit too farsighted to focus on our own views’ subjectivity.
dank48 - July 6, 2010 at 10:46 am
And reading the headers properly might be a good first step for me to take. Attributing quotes to the wrong writer should be a reminder of my own limitations.
isambard - July 6, 2010 at 11:05 am
I sometimes think that the holograph version tells an accidental truth: ‘united’ is written in very small letters and no capital letter, while ‘States’ is large and capitalized; and, of course, the individual states were later very hesitant about the powers that the new federal government was going to acquire, at their expense. The first state to think of seceding wasn’t a slave state but Massachusetts. The other instructive exercise at this celebratory moment is to compare Jefferson’s draft with the finished item; his draft assails George III for promoting the slave trade, while what the more-or-less unanimous delegates could stomach in deference to the flourishing trade in Georgia and South Carolina omitted the attack on a ‘cruel war against human nature itself, violating it’s [TJ's idiosyncatic spelling] most sacred rights of life and liberty in the persons of a distant people who never offended him…’ and so on. That’s what provoked Dr Johnson to ask his memorable question, ‘why do we hear the loudest yelps for liberty from the drivers of slaves?’Given the state of contemporary politics and the roots of so many of the country’s problems in the Constitution’s compromises, I’m always puzzled at the reverence with which the Constitution is regarded. Imagine yourself going on a long cycle ride on a warm day, wearing the clothes they wore in 1787, and explaining that you were debarred from wearing shorts and a T-shirt, because they didn’t wear them in 1787. (Not that Justice Scalia looks as though he gets on a bike very often…) It’s odd that the most forward-looking country in the world is so incapable of creating for itself a political system that would fit its needs. After all, Jefferson always, and Madison often, thought the Constitution would need a rewrite every thirty years or so. We somehow reverence their words without taking their political intelligence seriously.
goxewu - July 6, 2010 at 12:44 pm
Reminder: In real life, the “Constitution” consists of that document, the court decisions currently in force regarding interpretations of specific sections of the Constitution, and ALL laws–Federal, state and municipal–currently in force and which have not been ruled null and void on the basis of being “unconstitutional.”Tea Partiers (and some liberal absolutists) and the like might better carry around Kindles with Constitutional law libraries in them.
crunchycon - July 6, 2010 at 12:46 pm
“After all, Jefferson always, and Madison often, thought the Constitution would need a rewrite every thirty years or so.”isambard — could you give a citation for that, please?
luigi - July 6, 2010 at 2:55 pm
By the way, primitive originalism is a relatively new concept. Early generations read the Constitution’s provisions quite broadly. They understood that interpreting a constitution is quite different than interpreting a statute. In 1819, Chief Justice John Marshall wrote: “We must never forget that it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”
new_theologian - July 6, 2010 at 3:54 pm
We have to remember that ratification of the Constitution was conditioned on the promise of a substantive Bill of Rights to protect the citizenry and the States from the new federal structure that was being set up. That means that the Constitution itself has no force when considered apart from these first ten Amendments. It would not exist at all without them. That fact tells us that the Constitution was ratified only because it could be made to conform–through the amendments–to the political philosophy annunciated in the Declaration of Independence. I mean that in a sort of symbolic way, of course, since the real hermeneutic is the Federalist Papers and a whole slew of pre-Constitutional documents floating around at the time. These people knew what they intended to do, and why they intended to do it. They didn’t all agree on every point of political philosophy, but there are clear, over-arching concerns, and the Declaration of Independence spells many of them out pretty clearly. They didn’t want a world in which the citizenry were subject to a power that was not subject to them as well, or that could, somehow, justify itself apart from–or even against–the people being governed. Thus, the Constitution is BOTH an attempt to create a federal framework AND an attempt to define very strict limits on federal power.Livefreeordie2 misses the mark, in the end, because the Constitution often sets up its framework somewhat ambiguously. We can read the same words and then have prolonged arguments about what they should be construed to mean. The Second Amendment is a clear example of what is unclear in Constitutional language. “The right of the people to keep and bear arms” is one point, but then “A well regulated militia” is another. What is being said? And how does it relate to the Congressional power to raise armies under federal authority, and to the restrictions placed upon the authority of the States to wage war or raise armies without congressional consent, unless under immediate threat? It is a VERY difficult question to figure out how this works. One could argue that the Second Amendment nullifies other provisions in the body of the Constitution itself, restoring a stronger understanding of the status of the States than the framers had originally granted–but that argument’s been going on for two-hundred years.On the other hand, I have to object to the ridiculous characterization, by mbelvadi, of the Citizens United decision as granting the status of citizens to corporations. That’s not the point at all. The point of the decision is that citizens are free to speak, and are free to assemble peaceably, specifically, so that they can collectively speak in the public, political forum. This means that when people act in a corporate way to advance their political interests through some form of speech, they exercise a First Amendment right. That seems pretty unassailable to me.
intered - July 7, 2010 at 11:02 am
Thoughtful piece Stan. Thank you. While most of us might find it difficult to live in the linguistic certainty of livefreeordie2′s world, those who want to be strongly guided by the Constitution might approach the issue differently by asking how the Framers would view the balance of powers between citizens, states, and the federal government were they able to fully comprehend the situation in 2010. On that point, I think livefreeordie2′s judgment is correct within any reasonable interpretation of the Constitution. In practical effect, the federal government exerts far more control over our lives than even the most centrist of the framers could conceivably have had in mind. I know no way to read the constitution that can subsume the Patriot Act or even the Department of Education as currently constructed. The Department of Education’s defacto control is one, perhaps largely innocuous, example. We have allowed the passage of laws and accretion of policy that have created the kind of dependency on Title IV that amounts to an empirical necessity. In many real respects, the federal government is now in charge of U.S. education. This was not always so. There are far more sinister examples, such as police powers licensed by the Patriot Act but we need not go that far to see that the relentless pressures of the federal bureaucracy to grow have have long ago vitiated any real sense in which fundamental powers rest with citizens or our states. Now, we are experiencing what other large central governments experience, including inefficiencies, solutions in which the counter-effects are the main effects, organizational sluggishness and indirection, bureaucratic indolence, and an ever rising, never falling, proportion of the GDP allocated to federalism that will soon put us in the kind of financial jeopardy that we see in Spain and England.Has any large republic successfully reduced the net size of its federal functions? Has any large republic been able to reverse the growth rate of its federal functions?Robert W Tucker
new_theologian - July 7, 2010 at 10:41 pm
I do agree with Mr. Tucker on this point, and with the essential thrust of livefreeordie2′s concerns. I take issue only with him only to the extent that the precise meaning of each and every phrase of the Constitution is not always as clear as he or she seems to suggest. Perhaps livefreeordie2 was hyperbolizing, though.
arrive2__net - July 8, 2010 at 11:59 pm
I think it is an excellent article. I have just these comments.The article says’ “Thus for some Americans, then and now, the Constitution is at war with the Declaration.” Between the Declaration (1776) and the Constitution (1787), of course, there was “The Articles of Confederation”, which perhaps was closer to the revolutionary vision of America. The change in government embodied in the Constitution reflected what the country had learned during the time of “The Articles of Confederation”. If there is some conceptual conflict between the Declaration and the Constitution, it reflects what post-revolutionary America learned about itself and the nature of self-government. Stan Katz’s article says, the Constitution reaffirmed “the necessity of central government by those who were more committed to commerce and order than to individual liberty”, but I think of the Constitution as an attempt to reconcile individual liberty with organization. So, the Constitution reflects that the country had learned that being organized may limit some freedoms, but being organized has some major pluses. I wonder how the War of 1812 would have gone under the Articles of Confederation. It seems to me that when you consider the huge size of the country, its complexity, the ruthless competing interests, conflicts over foreign wars, civil war, taxes, and the rest, the ability of the Constitution to enable us to resolve conflicts and keep the country together, all while maintaining significant personal freedom, for over 200 years … it is phenominal. If you did rewrite or replace the Constitution, all the settled law, constitutional precedents, etc. would go out the window. All the Constitutional experts, pundits, and lawyers would have to start from scratch or become historians. As much fun as that would be, it still seems like it would be to costly and risky, so I rather just stick to coming up with some new ammendment, if required. Bernard SchusterArrive2.net