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23 June 2011

Time Magazine: Does the Constitution Still Matter?

Does Time Magazine still matter?

Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress's authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it's difficult to know what he would say.
The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.
The past decade, beginning with the disputed election of 2000, has been a long national civics class about what the Constitution means — and how much it still matters.
Everywhere there seems to be debate about the scope and meaning and message of the Constitution. This is a healthy thing. Even the framers would agree on that.
So, are we in a constitutional crisis? In a word, no. The Constitution was born in crisis. It was written in secret and in violation of the existing one, the Articles of Confederation, at a time when no one knew whether America would survive.
Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: "The Constitution was written explicitly for one purpose — to restrain the federal government." Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states.
It is true that the framers, like Tea Partyers, feared concentrated central power more than disorder. They were, after all, revolutionaries. To them, an all-powerful state was a greater threat to liberty than discord and turbulence. Jefferson, like many of the antifederalists, did think the Constitution created too much centralized power. Most of all, the framers created a weak Executive because they feared kings. They created checks and balances to neutralize any concentration of power. This often makes for disorderly government, but it does forestall any one branch from having too much influence. The framers weren't afraid of a little messiness. Which is another reason we shouldn't be so delicate about changing the Constitution or reinterpreting it.

[The article goes on to discuss Libya, the debt ceiling, Obamacare, & immigration.]

There is an old Latin phrase, inter arma enim silent leges, which roughly translates as "in time of war, the Constitution is silent." But it's not just in times of war that the Constitution is silent. The Constitution is silent much of the time. And that's a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop.

A constitution in and of itself guarantees nothing. Bolshevik Russia had a constitution, as did Nazi Germany. Cuba and Libya have constitutions. A constitution must embody something that is in the hearts of the people. In the midst of World War II, the great judge Learned Hand gave a speech in New York City's Central Park that came to be known as "The Spirit of Liberty." It was a dark time, with freedom and liberty under threat in Europe. Hand noted that we are Americans by choice, not birth. That we are Americans precisely because we seek liberty and freedom — not only freedom from oppression but freedom of speech and belief and action. "What do we mean when we say that first of all we seek liberty?" he asked. "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it."

The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution. The Constitution serves the nation; the nation does not serve the Constitution.

That's what the framers would say.

P.S. The framers would also say that Sarah Palin is dumb.

[Editor's note: The last sentence might not have appeared in the original Time article.]

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