Stealing the Constitution | The Nation


Stealing the Constitution

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This essay is adapted from a work in progress, tentatively titled Unhinged: Reclaiming Our Constitution From the Lunatic Right.

In October I spent a crisp Saturday in the windowless basement of a suburban Virginia church attending a seminar on "The Substance and Meaning of the Constitution." I was told the secrets the "elite" have concealed from the people: the Constitution is based on the Law of Moses; Mosaic law was brought to the West by the ancient Anglo-Saxons, who were probably the Ten Lost Tribes of Israel; the Constitution restores the fifth-century kingdom of the Anglo-Saxons.

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Garrett Epps
Garrett Epps, a law professor at the University of Baltimore and a former reporter for the Washington Post, is a legal...

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Censorship is a really dirty word.

The conservatives ensconced on the Supreme Court are set to uphold draconian ID requirements on voters that will redefine electoral politics in America.

There's more: virtually all of modern American life and government is unconstitutional. Social Security, the Federal Reserve, the Environmental Protection Agency, the Civil Rights Act of 1964, hate crime laws—all flatly violate God's law. State governments are not required to observe the Bill of Rights; the First Amendment establishes "The Religion of America," which is "nondenominational" Christianity.

The instructor was Lester Pearce, an Arizona judge and the brother of state senator Russell Pearce, author of Arizona's anti-immigrant law, SB 1070. (Perhaps not surprising, Lester tended to digress about how he cracks down on Mexican immigrants in court.) Pearce got rapt attention from the fifty people in the audience, although one boy near me spent his time perfecting a detailed sketch of an assault rifle.

These were earnest citizens who had come to learn about America and its Constitution. What they were being taught was poisonous rubbish.

Americans today are frightened and disoriented. In the midst of uncertainty, they are turning to the Constitution for tools to deal with crisis. The far right—the toxic coalition of Fox News talking heads, radio hosts, angry "patriot" groups and power-hungry right-wing politicians—is responding to this demand by feeding their fellow citizens mythology and lies.

The seminar I attended was organized by the National Center for Constitutional Studies, nestled securely in the metropolis of Malta, Idaho (2000 Census population 177, white population 174). The NCCS was the cold war brainchild of the late W. Cleon Skousen, a prominent John Bircher. The center and its crazed ideology have been taken up by Glenn Beck, who touts its educational programs on his TV show. Civic groups, school districts and even some city governments across the country have been persuaded to sponsor daylong seminars by the "nonpartisan" NCCS; its speakers are visiting high schools to distribute pocket copies of the Constitution. Skousen's massive "guide" to the Constitution, The Making of America: The Substance and Meaning of the Constitution, is currently No. 14 on Amazon's "constitutional history" bestseller list—and has ranked as high as No. 4 in the past year.

Beck is not the only commentator who is espousing such extremist notions. Popular authors Thomas Woods Jr. and Kevin Gutzman, in their book Who Killed the Constitution?, argue that Brown v. Board of Education should be overturned. Not even the Constitution is safe from the "constitutionalists": Fox News commentator Andrew Napolitano recently called the popular election of senators "the only part of the Constitution that is itself unconstitutional." A gathering of conservative law professors and activists at the 2010 convention of the Federalist Society, after gloating about the right-wing triumph in the off-year elections, advocated calling a constitutional convention to strip Congress of its current powers. House majority leader Eric Cantor supports a constitutional amendment to permit the state legislatures to repeal federal laws.

The new Republican majority in the House decided to kick off Congress with a televised reading of "the Constitution" by members. I use the quotation marks because the Constitution they read was edited so that members wouldn't have to read embarrassing anachronisms like Article I, Section 2, which counted a slave as three-fifths of a white person. (Poignantly, the language in the First Amendment about "the right of the people peaceably to assemble" was read by Representative Gabrielle Giffords, who was shot at a constituent meeting two days later.) They also have enacted a rule requiring that every new piece of legislation include a "constitutional authority" statement explaining why Congress has the power to pass it. (The false implication is that previous Congresses enacted laws willy-nilly, with no attention to that body's powers.)

Conservative lawmakers increasingly claim that the "original intent" of the Constitution's framers and the views of the right wing of the Republican Party are one and the same. Newly elected Senator Mike Lee of Utah has endorsed state "nullification" of the healthcare law. And far-right Republican Congresswoman Michele Bachmann has set up a "Constitution school" for new members of Congress; Justice Antonin Scalia (in other contexts a stickler for the separation of powers) has agreed to join Bachmann's faculty.

Scalia's injudicious involvement with House Republicans underscores the new boldness of conservative federal judges in adopting the rhetoric and ideas of the hard right. Scalia has repeatedly said that direct election of senators is "a bad idea." He recently said that the Equal Protection Clause provides no protection for women against discrimination because when it was adopted "nobody thought it was directed against sex discrimination." Federal District Judge Roger Vinson of Florida, who is hearing a challenge to the new healthcare program, recently cast doubt on its constitutionality in an opinion that cited, among other things, a Wall Street Journal op-ed as its "authority."

It's easy to understand why conservative politicians and judges are trying to align their political program with a strained reading of the Constitution: Social Security, Medicare, environmental protection and aid to education have broad popular support. Even the healthcare program, so reviled by the Republican Party, will be almost impossible to repeal using the legislative process.

* * *

So the right is seeking to win by changing the rules. Progressive, democratically enacted policy choices are unconstitutional, they argue. A document that over time has become more democratic and egalitarian is being rewritten as a charter of privilege and inequality. This shouldn't be allowed to happen.

Why has the right done such a good job of putting out its invented "Constitution"? Some of the responsibility lies with progressive legal scholars, who are well situated to explain the Constitution to the public. It isn't that they have failed; it's that they seldom try. Scholars from top schools hold forth with polysyllabic theories of hermeneutics that ordinary citizens can't fathom. Meanwhile, conservatives don't hesitate to speak directly to the public—and, often, to dumb down the Constitution. They purvey a simple myth: anyone who doesn't support the far-right version of the Constitution is at best unpatriotic, at worst a traitor.

Enough of that. The Constitution belongs to all of us. It's time to take it back from those who are trying to steal it in plain sight. Our Constitution wasn't written to rig the political game but to allow us to play it without killing one another. It created a government and gave that government the power it needed to function.

That seems elementary, but the right claims that the Constitution was designed to prevent America from abandoning the tallow-candle purity of the Anglo-Saxon past. Any innovative government program, the argument runs, must be unconstitutional, or the framers would have predicted it in so many words. But the Constitution wasn't a revival; it was something brand-new—the first national written constitution in Western history. The framers wanted to impel change, not prevent it.

Conservatives also claim that the Constitution was set up to restrain the federal government. If so, there's precious little evidence of it. The actual text of the Constitution is overwhelmingly concerned with making sure the new government had enough power; the framers thought the old Articles of Confederation were fatally weak. Sure, they didn't want to set up a government that could throw people in jail without a good reason, or steal their property, or do away with free elections. The original Constitution prohibited oppressive practices, and the Bill of Rights added other restrictions.

But the document as a whole is much more concerned with what the government can do—not with what it can't. From the beginning it was empowered to levy taxes, to raise armies, to make war, to set the rules of commerce and to bind the nation through treaties and international agreements. There's no sign of the libertarian fairyland many on the far right have invented. Rather, the Constitution allowed for a government adequate to the challenges facing a modern nation.

In particular, the Constitution was not written to weaken an overreaching Congress but to strengthen an enfeebled one. The old Articles of Confederation had set up a Congress with the power only to beg states for money and recommend laws for them to enact. That didn't work; the country found itself headed for bankruptcy and disaster. To replace that old Congress, the Constitution created a bicameral Congress with a long and impressive list of textual powers. It also gives this Congress the power "to make all laws which shall be necessary and proper for carrying into execution," not only those specific powers but "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

That's a lot of power. And over the years, the government has sometimes needed it, to deal with civil war, economic calamity and internal disorder.

Another myth is that the Constitution was created to "protect" the states from federal power. Again, if that's true, it's not because of anything actually in the Constitution. The Constitution includes limits—but they are mostly limits on state governments and corresponding increases in federal power. The idea that states have rights, or that they are sovereign, appears nowhere in the original Constitution. And constitutional amendments have repeatedly imposed further limits on the states while granting more power to Congress.

One of the pet peeves of the right is the "intrusion" of ideas from international law into American law. Senators at the confirmation hearings for Justice Sonia Sotomayor demanded (and, regrettably, got) a promise that she would never rely on international law. A measure adopted by voters in Oklahoma in November forbids state courts from even looking to "the legal precepts of other nations or cultures" or "international law."

This is not a defense of the Constitution; it is a mutilation. The framers knew a great deal of international law. The document itself mentions many sources of international law: treaties (a major source of international law, they are part of "the supreme law of the land"); "the law of nations," which designates customary international law; and "admiralty and maritime jurisdiction," among others.

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