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June 24, 2011

Constitutionalism: Here Are a Few Things Richard Stengel Doesn’t Know About

By

“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.”

Time managing editor Richard Stengel opens his deeply flawed 5,000-word article on the Constitution with this self-evident chronological platitude. Reading through his piece, it soon appears there are a few things he doesn’t know.

Let’s begin with the basics. Citizens of all political persuasions who uphold the Constitution are not pining to turn back the clock on technological advances and social progress and return to the late 18th century to live in a world where men wore powdered wigs and doctors “still used leeches.” Constitutionalists aren’t hapless characters in a political remake of Woody Allen’s latest movie Midnight in Paris.

In arguing for the enduring relevance of the Constitution, they’re upholding the republican framework of limited constitutional government that it sets in place. The Framers may be dead and gone, but their timeless principles endure.

These principles, although first articulated centuries ago, are not tied to the material conditions of a bygone age. They rest on that most solid and enduring of all foundations: human nature. Madison’s rhetorical question in Federalist 51 rings true as ever: “But what is government itself, but the greatest of all reflections on human nature?” The miniskirt, sexting, and collateralized debt obligations haven’t put much of a dent on good ol’ human nature. Until men become angels, let’s stick to the Constitution’s healthy distrust of concentration of power and unfettered mob rule.

Times changes. Issues flare up and drop off the radar. Science continues to deliver wonders. The Constitution is meant to create a framework for a free people to confront the political questions of their times. The Constitution itself contains no policy prescriptions. Its words and principles, anchored in the Declaration of Independence, categorically rule out certain laws — e.g., bills of attainder — and create a system of checks and balance between different levels of government. But within the confines of these restrictions and delineations, it leaves the people free to deliberate via their elected representatives on the questions and problems of the day.

Having established this basic point, let’s take a swing at some of the many low-hanging rotten fruits in Stengel’s constitutional musings.

The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning.

For all their heated disagreements over issues such as the chartering of a national bank, the Framers agreed on the fundamental principles undergirding the Constitution. Most importantly, they agreed that there must be limits to the powers of government to avoid tyranny. Stengel’s “constitutionalism” recognizes no theoretical limits to the scope of government. The debate that the Constitution should foster concerns its proper limits — not whether there are any limits.

[The Framers] also gave us the idea that a black person was three-fifths of a human being.

This is one of the most shameless lies peddled by the liberal intelligentsia. The Constitution does not classify people according to race. While the Constitution does compromise with slave-holding interests, free blacks in the North and the South were counted on par with whites for purposes of apportionment and black citizens were voting in five of the original 13 states at the time of the Founding. As for enslaved blacks, it was the Southern states that wanted to count them as full persons, thereby inflating pro-slavery representation in the House. The three-fifths compromise was aimed at preventing Southern states from magnifying their own political power.

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power.

This is absurd. From the wording of the legislative vesting clause — “All legislative powers herein granted” — to the specific restrictions placed on Congress in Article I, Section 9 and in the Bill of Rights, including the unambiguously constraining language of the Tenth Amendment, the Constitution creates a government of limited enumerated powers.

George Washington once signed a bill asking Americans to buy a musket and ammunition. There’s nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax — even if we don’t like it. … The Affordable Care Act may be bad legislation, as some contend, but that doesn’t mean it’s unconstitutional.

The law signed by President Washington was made in pursuance of Congress’s specific and enumerated power to “raise and support armies . . . provide for calling forth the militia . . . [and] provide for organizing, arming, and disciplining, the militia.” There’s a world of difference between that and arguing that Congress can invoke the commerce clause to compel citizens to purchase health insurance.

The Framers didn’t know the first thing about “Poker Face” or the double helix, but they at least had the excuse of living two centuries before Lady Gaga and Watson and Crick. Stengel is the managing editor of the country’s largest news magazine and, hold your breath, the former president and chief executive officer of the National Constitution Center, where he launched the Peter Jennings Project for Journalists and the Constitution to “help both professional journalists and students interested in journalism understand constitutional issues more deeply.” He has no excuse for knowing so little about the Constitution.

David Azerrad is a fellow at The Heritage Foundation.

First appeared in National Review Online

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