President Obama issued a statement from Hawaii on New Year’s Eve declaring he wants to cooperate with Republicans in 2011. Conservatives have a novel suggestion on how to find that elusive “common ground”: Return to the Constitution.
For Obama, that will be like learning a foreign language. But even for many Republicans, it will be a challenge.
Republicans in the 112th Congress have announced there will be regular readings from the Constitution on the House floor, and all bills will be required to cite a section of the Constitution as authorization. That will slow down a lot of bad legislation, so it is a good beginning.
In times past, when people disagreed with the Constitution, they tried to amend it. Amending the Constitution is difficult, and it was designed that way. Since the adoption of the Bill of Rights in 1790, the Constitution has been amended only 17 times. In the 100 years of the 19th century, it was amended only once besides the three Civil War amendments.
Our attitude toward the Constitution is one of the great dividing lines in American politics. Liberals and “progressives” believe the Constitution can and should be interpreted to mean whatever we want it to mean – hence the phrase, a “living Constitution.” Conservatives by contrast believe the document is a contract between the people and the government and must be respected and followed even when it obstructs some group’s political passions.
One reason that amendments were made difficult by the founders is that they expected most political battles to be fought out in the states. Not every political issue is a federal issue, and states ought to be allowed to experiment and innovate. Liberals find this notion quaint if not downright Neanderthal.
Several states had alcohol prohibition laws before national prohibition was adopted in 1920, and individual states were free to have income tax laws before the 16th Amendment allowed the federal government to tax individual incomes. It is only lately that all political issues are assumed to need a “national solution.”
What I am suggesting is that returning to the Constitution is, in fact, a more radical idea than the progressive agenda of any liberal think tank. Many established federal programs have no basis in the Constitution and would have to be repealed when we get serious about respecting the intent of the founders.
Do conservatives and Republicans have the stomach for that debate? Restoring the Constitution means more than honoring the Second Amendment, and respecting the Ninth and 10th Amendments means more than repealing Obamacare. Most of the programs of the U.S. Department of Education have no constitutional foundation, and the authors of 14th Amendment did not intend to grant citizenship to children of illegal aliens, tourists and business travelers.
Returning to the Constitution would not mean that all socialist and wealth transfer schemes would end. After all, progressives did get the 16th Amendment adopted when a federal tax on incomes was invalidated by federal courts. What it would mean is that liberals would have to follow constitutional means to enact their programs instead of subverting the Constitution through misuse of federal courts.
So, how do we end federal usurpation of power through the federal courts? The only solution is to replace liberal judges with jurists who follow an “originalist” philosophy of constitutional interpretation. And that, my friends, requires electing a conservative president who will appoint such judges. That is not the same as electing a Republican president who will give us more judges like Harry Blackmun, David Souter and Anthony Kennedy – all Republican appointees.
This discussion of the abuse of power by federal courts brings us full circle to state politics and federalism. As long as federal courts continue to “federalize” every act of a state legislature, states are prevented or intimidated from resolving problems at the local level. Thus, it can no longer be said that, “all politics is local.” When federal judges can invalidate Arizona’s S.B.1070 using a federal preemption doctrine that protects not federal law but federal “flexibility” and “needed deference” to the opinions of foreign governments, we no longer have a federal system of government.
Seeking “common ground” and bipartisanship between Republicans and Democrats is a good thing only if that common ground is a healthy respect for the Constitution. If it is instead a bargain among thieves, it should be resisted by all citizens who want to preserve our liberties.