Posted: April 6, 2011
he federal government now dominates virtually every area of American life, vastly exceeding the limits that constrained it for most of our history. Its authority is all but plenary, restricted only by expediency and the occasional budget crisis.
"Are you serious? Are you serious?" was Nancy Pelosi's answer when asked what provision of the Constitution authorizes Congress to require Americans to buy health insurance. Her press spokesman confirmed: "You can put this on the record: That is not a serious question."
Now comes a new Congress, with a mandate to get control of government. "For too long, Congress has ignored the proper limits imposed by the Constitution," proclaimed House Republicans in their 2010 campaign platform, A Pledge to America. "We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified." The Republican how-to manual for new members advises them to "read and re-read the Constitution" and to "be prepared for two eventual questions every time you cast your vote on the House floor: did you read the bill, and is it constitutional?"
Since members of Congress take an oath to the Constitution, they ought to know something about the document. Reading it would be a good start. At just under 8,000 words including amendments, the Constitution is less verbose (and easier to understand) than most of those laws that don't get read. It's probably too much to study the notes of the Constitutional Convention (compiled in four volumes) and the basic documents that surround those debates (a good version of which is The Founders' Constitution, a bit over 3,000 pages).
Though the method long predates the Constitution, the commentary is nicely fit for a document of articles, sections, and clauses—especially one that is today so much a disputed question. The classic, of course, is The Federalist, which Jefferson called "the best commentary on the principles of government which was ever written." The first full commentary was Joseph Story's 1833 Commentaries on the Constitution, which covers in three volumes a history of the colonies, the American Revolution, and the Articles of Confederation period before a general review of the Constitution. There are contemporary versions as well: constitutional historian John R. Vile has a very good one that is now in its fifth edition, the Congressional Research Service puts out one that is too long and much too Supreme-Court centered, and The Heritage Guide to the Constitution (which I edited along with David Forte) brings together more than one hundred originalist scholars for a clause-by-clause consideration.
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Just in time for the current moment come two new commentaries, both gracefully written by single authors for popular audiences, both compact and easy to read. With The Annotated U.S. Constitution and Declaration of Independence Jack Rakove has produced the more academic rendering. Pulitzer Prize-winning historian, established scholar, and a long-time professor of political science at Stanford, Rakove sets out to combine "the historian's natural fascination with the origins of clauses" with the modern jurist's "interest in their evolving interpretation." Rakove's is the "living" Constitution, and his analysis pushes back against those who favor understanding the Constitution in light of its original meaning. He argues from authority, providing neither index nor footnotes.
The title of Seth Lipsky's work gives us a good sense of his purpose: The Citizen's Constitution: An Annotated Guide. This is a popular account, reflecting Lipsky's journalistic sensibilities—"a marbling of the constitutional cake, so to speak, with a newspaperman's batter." Lipsky was founding editor of the New York Sun as well as the Forward newspaper, and is currently a contributing editor of the Wall Street Journal. Where Rakove is nuanced and judicious, Lipsky is pointed and practical, hewing to "the plain-language school of the law." The common-sense assumption here is that the Constitution can and should be read by citizens, rather than entrusted to a clerisy that will translate the document for laymen.
The difference between the two approaches can be seen in their consideration of the Constitution's clauses. Consider one of the most disputed: the Spending Clause of Article I, Section 8. Does Congress have unlimited authority to spend for the general welfare? That's the $3.5 trillion question, scheduled to keep getting bigger. Lipsky spends several pages reporting on the continuing debate among Alexander Hamilton, James Madison, James Monroe, and the New Deal Court; Rakove matter-of-factly asserts that the spending power was "an early subject of dispute" but the post-New Deal norm allows the federal government to pursue policies beyond its enumerated powers. Case closed.
Rakove's interpretative bent also shows itself in disdain for arguments he disagrees with. About the Second Amendment, for instance, he writes that "the National Rifle Association and its supporters have waged a vigorous campaign to argue that the amendment was really meant to protect a personal right to keep and bear arms for purposes of self-defense," even though "the historical evidence for that view is tenuous." Thus, the Supreme Court wrongly upheld the individual rights argument in District of Columbia v. Heller (2008), largely by "ignoring the actual debates that led to the adoption of the amendment." But the Court did not ignore those debates. Both sides in Heller devoted more serious attention to original intent than in any dispute in recent decades.
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What neither of these books addresses is the perennial subject of constitutional politics. Since the New Deal, the viewpoint that has dominated American politics, journalism, and the academy has treated the modern state as inevitable, permanent, and ever-expanding. The corresponding assumption was that over the course of the 20th century Americans had gotten past the Constitution and its archaic canons of limited government.
But have we? An over-reading of the 2008 election gave rise to a vastly overreaching agenda, which became so unpopular that it set off the electoral wave of 2010. The question is whether the electoral rejection of the Obama-Pelosi-Reid agenda can be turned into the embrace of constitutional government.
The debate between the founders' constitutionalism and the Progressive paradigm meant to supplant it is now engaged, perhaps as never before. Americans appear more receptive than they have been for many years to setting clear, enforceable limits on the modern state: consider the widespread suspicion that a federal mandate to purchase health insurance is not just unwise but illegitimate. What remains unclear is how far—and how fast—the voters want to go. Growing opposition to runaway spending and debt, or to a dramatic expansion of the federal role in health care, is one thing. Popular support for scrapping Social Security or closing down the Department of Education might be another.
The opportunity and challenge for constitutionalists is to turn today's public sentiment against an even more activist state into a settled and enduring political conviction about the nature and purpose of constitutional government. Forging such a realignment will require informed public argument and effective popular persuasion, not to mention the exercise of legislative jurisprudence. Above all, it will require a great deal of statesmanship.