Monday, September 17, 2012

Celebrating the Constitution in Questioning Times

      The Constitution marks its 225th anniversary this week [Sept. 17], but the occasion comes with much less hoopla than the celebration of its Bicentennial 25 years ago. Today, the longest standing national constitution in history is being re-examined critically by unlikely bedfellows on the left, right, and radical center. More troublingly, the Constitution is under an insidious attack from right-wing forces seeking to advance a political agenda in the name of the Constitution while fundamentally misrepresenting what the Framers believed and hoped to accomplish.
      The constructive rethinking about the Constitution is represented in the very long-shot effort to call a constitutional convention under a procedure never before used to amend the nation’s governing document. The Constitution’s Article V provides for two routes to amendments: proposals by Congress submitted to the states for ratification, the procedure used for the 27 amendments so far, or a convention called by Congress on application from legislatures of at least two-thirds of the states. Any amendments proposed by the convention would in turn have to be ratified by three-fourths of the states, by convention or legislative action, as determined by Congress.
      As detailed in my CQ Researcher report “Re-examining the Constitution” (Sept. 7), the groups pushing for a convention are ideologically diverse. Conservatives, including the Tea Party Patriots, want some form of federal budget control written into the Constitution. Liberals want to undo the Supreme Court’s recent decisions limiting the government’s ability to control spending in political campaigns. And some experts, notably University of Texas law professor Sanford Levinson, want to change some of the Constitution’s basic structure, including the equal representation of states in the Senate, the Electoral College and life tenure for Supreme Court justices.
      The push for a convention has little chance for success. Supporters face a host of questions about the rules for a convention, with no clear answers. And they face the daunting task of overcoming inertia as well as the fear of a “runaway” convention that would wreak havoc on a Constitution that has served the country somewhat well — at least since the Civil War. But some useful changes could come out of the effort, as happened in 1913 when Congress bowed to the effort to call a convention and approved the Seventeenth Amendment providing for popular election of U.S. senators.
      By contrast, much of the talk about the Constitution from the political right today is far from constructive. Instead, to quote the title of a new book by journalist and law professor Garrett Epps, it is Wrong and Dangerous. Epps details in his book 10 myths about the Constitution now being propagated by groups and individuals on the political right. [Disclosure: Epps is a college classmate, professional colleague, and personal friend.]
      The propagators of these myths, according to Epps, include public officials ranging from Justice Antonin Scalia and Republican Rep. Michele Bachmann, a Tea Party favorite, to commentators such as Glenn Beck and Rush Limbaugh. Think tanks such as the Heritage Foundation and Cato Institute provide an intellectual patina for the views, but no account is complete without mentioning the misleadingly titled National Center for Constitutional Studies, aptly described on Wikipedia as an “ultraconservative, religious-themed” organization. Epps attended one of NCCS’s seminars, where he learned — according to his account in The Nation — that the First Amendment established nondenominational Christianity as the national religion, states need not obey the Bill of Rights, and everything from Social Security to the Civil Rights Act of 1964 is unconstitutional.
      As Epps demonstrates in his book, these right-wing forces misread both history and the Constitution’s text. They believe, for example, that the Constitution was written to limit the powers of Congress and the national government being established. In fact, the “Federal Convention” was called precisely because the weak central government established by the Articles of Confederation was not up to the political, economic, and diplomatic challenges faced by the new republic.
      The constitutional mythmakers are nearly as wrong in contending that the Constitution does not separate church and state. As Epps notes, the Constitution itself prohibits any religious test for public office in the national government and the First Amendment protects freedom of religion specifically by prohibiting any establishment of religion by the national government. True, the Framers rejected James Madison’s proposal to prohibit any state from establishing religion, but — apart from Justice Clarence Thomas — everyone today concedes that the Religion Clauses apply equally to the states.
      Epps is especially cogent in rejecting the myth of originalism — or specifically the myth that the political right is true to the original meaning of the Constitution and everyone else confused, dishonest, or idiotic. Epps, a constitutional historian himself, agrees on the importance of trying to discern the Framers’ intent. But he says conservatives — specifically, Thomas and Scalia — use disingenuous techniques to legitimize their interpretations and try to discredit those of others: inventing “everybody knows” generalizations, hypothesizing what the Framers “probably” thought, and discounting any contrary evidence.
      The Framers likely would be surprised at the longevity of the document they wrote in the summer of 1787. They surely would be distressed at the cost in blood and treasure needed for its survival after the crisis of slavery and the Civil War. But survive it did, and likely will continue to survive. Despite questions and controversies, that is something to celebrate.

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