Thursday, May 21, 2009

With the Constitution, what you see is what you get

When asked about President Barack Obama's just-begun process for selecting a Supreme Court nominee to replace Justice David Souter, senior presidential advisor David Axelrod backed Obama's suggestion that constitutional considerations might play a secondary role to giving the "powerless" a "fair shake." That's red meat for conservatives seeking evidence that the new president wants to impose a radical agenda on the country through judicial decree rather than through legislation subject to constitutional limits. Of course, not long ago, many of those same righties warned that the Constitution "is not a suicide pact" and shouldn't stand in the way of the war on terrorism. When they're in power, right and left alike tend to read whatever they please in the seemingly clear words of the Constitution.

Back in Barack Obama's franker days, when he was a relatively unknown Illinois state senator, Obama told an interviewer from Chicago's WBEZ 91.5 FM:

[I]if you look at the victories and failures of the civil rights movement and its litigation strategy in the courts. I think where it succeeded was to vest formal rights in previously dispossessed people. So that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I’d be okay.

But the Supreme Court never ventured into the issues of redistribution of wealth. And served more basic issues of political and economic justice in this society. And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted.

And the Warren Court interpreted it in the same way that generally the Constitution is a charter of negative liberties—it says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf...

Many observers have credibly interpreted Obama's words to mean that he regretted the courts haven't been more creative in their interpretations of the Constitution, and that he wanted judges to go further. He seems to want the judicial branch to find mandates for a specific vision of socio-economic justice in words that don't explicitly say anything of the sort. His comments after Souter announced his resignation, in which he called for a nominee to have "that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes" reinforced speculation that he was looking for an extra-constitutional approach to the law.

Of course, Obama isn't the only one to treat the Constitution as a Rorschach test. The Bush-era Office of Legal Counsel famously found constitutional authorization for massive unilateral executive authority in a document penned by people who had just recently thrown off a monarch, as well as justification for torture alongside a ban on "cruel and unusual pubishment."

Judge Richard Posner, who wrote a whole book, Not a Suicide Pact: The Constitution in a Time of National Emergency, arguing that constitutional protections for personal liberty should give way to national security concerns in times of danger, has been known to discuss the supposed tradeoff between liberty and security in purely utilitarian terms, without regard to the plain language of the Constitution.

So when David Axelrod argues that "fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century," he's breaking no new ground. Republicans and Democrats, liberals and conservatives -- all have a history of praising the Constitution as a nice historical artifact that needs to be carefully stored out of the way lest anybody trip over it while going about the important business of creating a Brave New World.

They just differ on how that world should look.

None of this is to say that the Constitution is perfect or should be immune from modification. In fact, the founders installed a whole amendment process in Article V for the purpose of keeping the document up-to-date. The process works, we know, because it has been used. If you really want to turn the country into a socialist ant hill or transform the president into a sadistic god-king, the appropriate method is to amend the Constitution accordingly.

But that's hard work -- intentionally so -- and requires an open debate about the merits of the proposed changes. There's no predicting just how a debate might conclude. It's much easier, after all, to slide under the radar and appoint judges who simply "interpret" the Constitution in peculiar ways.

So, for the forseeable future, the creatures who roam the halls of power in Washington, D.C., will continue to voice pretty words about the Constitution, while seeing in it reflections of their own agendas that have nothing to do with the words actually written on its pages.

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