I just spent a few hours at the Ron Paul rally, about which I'll have more to say later. But as I listened to the speakers get misty eyed over the constitution and describe their views as constitutionalism, it crystallized something that's bothered me for a long time about the way the left tends to talk about the shredding of basic civil liberties that have happened over the last 8 years. There's a tendency to defend civil liberties in the context of fidelity to the constitution, which has the twin virtues of being a) accurate and b) politically potent -- who doesn't support the constitution? But hearing people with beliefs quite different from mine on issues other than civil liberties invoke the same justification to rail against what amounts most of what makes up the modern liberal state, I couldn't help feel that perhaps the constitution is not the best way for progressives and civil libertarians to make their argument. It acts, in a way, as both a short-cut and a cipher.

The constitution itself is a remarkable document, but also flawed. Prophetic in places (the 1st amendment), short-sighted in others (the 3rd amendment). And the Paulites make a plausible case that the Founding Fathers (at least some of them) would be scandalized by things like Social Security and most of the modern regulatory state. I'm not quite sure where this goes: how you build a robust argument for civil liberties not reliant on invoking a document, but something about the ceaseless fetishization of the Constitution at the Paul event gave me pause.

Comments (24)

1. Oh my.

   Honestliberal is going to have a field day with this article.

   You do realize Mr. Hayes, that you just left yourself wide open to attack relative to using activist judges to achieve your goals, rather than the constitutional method?

   Good grief. I can hear it now. "We told you so! See! SEE?!"

   Posted by Benchrest at 09/02/2008 @ 6:07pm

2. jomamma-I wouldn't pay much attention to the far right loons and their views on liberalism.The jihadists have the same view of liberalism that our right wing loons have.That's poor company to be in.

   Posted by i'm nobody at 09/02/2008 @ 6:19pm

3. Jomamma-Hitler,also,had the same view of liberalism as our far right loons have.Jihadists and Hitler.What wonderful company for our right wing loons to keep.

   Posted by i'm nobody at 09/02/2008 @ 6:38pm

4. Beauty is in the eye of the beholder...

   ...and as the issues are shuffled and dealt... and then reshuffled and dealt again... the debates that have a great deal in common with the 'original' debates chronicled by the forefathers... go on.

   "Eternal vigilance is the price of liberty"... Wendell Phillips

   Posted by ttr at 09/02/2008 @ 6:40pm

5. Posted by JOMAMMA at 09/02/2008 @ 6:09pm

   A document can only stay up to date for so long. That is why the Founders gave us the ability to amend it and to change it. Like the Bible you can't expect it to stay up to date with the advancements of the modern world.

   Posted by Cccomfo1 at 09/02/2008 @ 6:49pm

6. Posted by JOMAMMA at 09/02/2008 @ 6:09pm

   JOMAMMA, ever consider how the Founding Fathers envisioned paying for the National Debt under the Articles of Confederation?

   The first report of debt was in 1791 and $75,463,476.52. Let's round it to $75 million. To put that into 2007 US dollars, that would be roughly $1.7 trillion.

   This debt was broken up into the following: $11 million owed to foreigners mostly related to the French Revolution, $24 million by the federal government and another $24 million by the states for purchases of food, supplies, horses and so forth purchased from merchants for the military. The remainder were promissary notes.

   Care to explain how this is not a redistribution of wealth - particularly for the 10-20% of the population who did not support the Revolutionary War?

   You see how your failing to account for basic history in your fetishizing of the Founding Fathers and the use of government taxation power to achieve particular ends was first done by the Founding Fathers.

   I'd also like you to discussion how tariffs were not a redistribution of wealth, particularly given Alexander Hamilton's plan of using the revenue from tariffs to subsidize industry - Hamilton would have called it a bounty.

   You see how your interpretation doesn't have much of a historical basis?

   Please feel free to explain these problems in your thesis, because given these facts, your comment makes no sense.

   Posted by srjenkins at 09/02/2008 @ 7:24pm

7. And for Christopher Hayes:

   I'd suggest taking a peek at Ron Paul's The Revolution: A Manifesto. It has a chapter (Chapter 3) that talks about the Constitution.

   Paul makes a number of interesting observations about the enlargement of executive power in the form of executive orders, signing statements, and so forth. Then, he moves on to the larger question of the enlargment of federal government power which makes executive power so threatening. He then makes a plea for Jeffersonian democracy as outlined in the Tenth Amendment.

   He also tries to deal with the Alexander Hamilton questions I posed above to JOMAMMA by suggesting that Hamilton was an outlier and does not represent the thinking of the Founding Fathers. Nice try, but it still doesn't tell us how they planned to deal with the debt. It also doesn't deal with the fact that Jefferson himself didn't seem to follow Jeffersonian principles in things such as the Louisiana Purchase.

   Still, Ron Paul is calling out a problem. The problem is that George W. Bush and both major parties believe in the president's ability to declare war unilaterally. They believe in a big federal government, and ultimately, big government will work in its own interests and not in the interests of the people of this nation.

   So, he proposes a solution. Get rid of big government. Unfortunately, the solution is worse than the problem. Big government has a role to play, but the genius of the Founding Fathers is that they understood this and that the only real protection from government was in seperating powers, transparency, and having sharp limits on the scope of government power. In this, Ron Paul and the people like him are absolutely right.

   Posted by srjenkins at 09/02/2008 @ 7:43pm

8. The Bible, I believe holds up just fine...I would guess to a Christian the BIBLE is Scripture and doesn't subject itself to change of any kind.....in my opinion.----Posted by JOMAMMA at 09/02/2008 @ 7:28pm

   It does? Did Genesis "hold up" against evidence for evolution? Does the Bible have any determination as to the morality of...genetic engineering? How many lines of the Bible speak of "democracy" and against slavery???

   Posted by Maskdelta at 09/02/2008 @ 7:46pm

9. Posted by madlib at 09/02/2008 @ 7:49pm

   I'd recommend Thomas Merton's Opening the Bible to you.

   "All attempts to narrow the Bible down until it fits conveniently into the slots prepared for it by our prejudice will end with our misunderstanding the Bible and even falsifying its truth."

   Posted by Maskdelta at 09/02/2008 @ 7:46pm

   Matthew 22:36-40

   "Teacher, which is the greatest commandment in the Law?" Jesus replied: "'Love the Lord your God with all your heart and with all your soul and with all your mind.' This is the first and greatest commandment. And the second is like it: 'Love your neighbor as yourself.'[b] All the Law and the Prophets hang on these two commandments."

   I can think of no greater endorsement of democracy over slavery than this, Mask.

   Posted by srjenkins at 09/02/2008 @ 8:05pm

10. Posted by JOMAMMA at 09/02/2008 @ 7:44pm

    The only time the debt got near zero was under Andrew Jackson in 1935 - after six years of effort. The Panic of 1837 brought it back.

    Seems like the whole history of the United States was one long series of exceptions.

    Posted by srjenkins at 09/02/2008 @ 8:11pm

11. Your observations and your considerations and thoughts on what you witnessed, is the basis of those who believe with all they are that liberalism itself has run rough shod over the constitution, and therefore, is a threat to the country..as well as individualism and individual rights....the collective be dammed. Posted by JOMAMMA at 09/02/2008 @ 6:09pm

    If that is what you got out of that article then you need to take some critical reading classes because you missed the entire point of his article. It was not AT ALL about how to get around the Constitution. His entire article about the fact that like the Bible the Constitution is used to justify all kinds of wacky beliefs at entirely opposite ends of the spectrum. His point was that how can beliefs this vastly different be both defended by the same document. He was saying that we shoulodn't use the Constitution to try to defend a belief as right or wrong, we should use the merits of the belief itself to defend it as right or wrong and then we should use the rightness of that belief to amend the Constitution to then MAKE it Constitutional or Unconstitutional. but then once again your rabid dislike of anyone that speaks for the left you completely missed the point of what the man was saying and instead put your own spin on it to make him sound like the "enemy". It's why I think partisan politics is for idiots. Posted by Cccomfo1 at 09/02/2008 @ 9:39pm

    That is from a response to something else you said but I will post it here since it is about this article.

    Posted by Cccomfo1 at 09/02/2008 @ 9:41pm

12. "The constitution itself is a remarkable document, but also flawed. Prophetic in places (the 1st amendment), short-sighted in others (the 3rd amendment)," wrote Christopher Hayes.

    I agree with you, Mr. Hayes, really I do, but... surely you meant the SECOND Amendment. The Third Amendment, according to Wikipedia:

    "[...] prohibits, in peacetime, the quartering of soldiers (military personnel) in private homes without the owner's consent. It makes quartering legally permissible in wartime only, but only in accordance with law."

    I believe that's as good a principle today as it was back in 1787!

    Posted by JakobFabian at 09/02/2008 @ 9:41pm

13. But now, back to my agreement with Hayes.

    One of the most powerful Constitutional revisionists in our history was undoubtedly Abraham Lincoln.

    During the Civil War, you will remember, slavery was still fully Constitutional, and indeed, many Constitutional structures, first and foremost the wretchedly undemocratic Electoral College, were obviously designed to defend slavery against democracy itself. (The second structure that accomplished this was the Senate; its principle of equal representation for STATES strengthened the Constitutional principle of UNEQUAL representation for human beings - and made the math easier for slavery's defenders as the United States expanded westward.)

    Then, in his celebrated Gettysburg Address, Lincoln famously invoked a document that had no legal authority, but had great moral power: the Declaration of Independence. It was only in reference to THIS document, NOT to the Constitution, that Lincoln was able to claim that this great Nation was dedicated to the principle that ALL MEN ARE CREATED EQUAL.

    Thomas Jefferson himself, the author of our country's second great founding document (which, chronologically speaking, was actually the first), never imagined that our Constitution would endure, little changed, for over 200 years. He expected truly free people to make changes in their government. And so should we.

    Posted by JakobFabian at 09/02/2008 @ 9:57pm

14. Well...the Third Amendment was meant to counteract a big issue of the day (namely, the British forcing colonial citizens to barrack up troops against their will) so perhaps short-sighted is a bit harsh. Anachronistic is perhaps a better term.

    Posted by yutsano at 09/02/2008 @ 9:57pm

15. The FF didn't anticipate the power of modern corporations since they didn't exist then. Unions & gov't are now the only powers that can protect the public against corporations. The small gov't fetishists don't see this. Problem is, gov't operates to benefit big business. The right rails against the welfare state, but supports corporate welfare which is antithetical to their espoused so-called "free market" ideology. Privatization is freeing predatory corporations to plunder at will. In fact, there is no free market; that is the focus-group tested phrase used to cover the pro-globalization, imperialist actions of the American Empire.

    We need to democratize the Constitution with several amendments: eliminate the Electoral College; public financing of federal elections; instant runoff voting; all voting machines have a paper trial and the software open to public scrutiny (no "black box" voting); everything given to candidates is bribery; free media time to all candidates; make corporations have duties to society, not just to stockholders; overturn the Supreme Court case stating corporations have all the rights (but not all the duties) of natural persons; democratizing the Federal Reserve (see Greider, Secrets of the Temple); prohibiting mercenary armies; prohibiting all military actions without a formal Declaration of War by Congress; creating a right to privacy as in the California Constitution; the ERA...you get the idea. The American People need to wake up, dismantle the American Empire and restore the republic.

    Posted by cholzhauer at 09/02/2008 @ 10:23pm

16. Dear "Cholzhauer":

    Amen and Halleluyah!

    As your posting makes clear, there has been a LOT of underhanded "amending" done to our Constitution within the last eight years, much of it in secret, and NONE of it good.

    I'll have to check out the California Constitution's principle of privacy, since you recommend it. Thanks for the tip!

    Posted by JakobFabian at 09/02/2008 @ 10:39pm

17. you described a time of war with Britian...not a normal day in the life of the nation ...

    Posted by JOMAMMA at 09/02/2008 @ 7:44pm

    what???????

    the u.s. has been at war ever since....

    Posted by frosty zoom at 09/02/2008 @ 11:17pm

18. The Constitution is law. It defines the powers of government and the limitations therein (including the courts). Constitutionalism, if understood as "the government should follow the constitution," is almost tautologically correct. Are there flaws? Absolutely. But as Ccomf himself pointed out, the answer is the amendment process, not courts. Anything else runs into some serious problems justifying itself in terms of democratic theory.

    Posted by Thrawn at 09/03/2008 @ 12:10am

19. I would also point out that the ratification of the 16th Amendment altered the Constitution from the FFs concept of how the government could tap the wealth of this country.

    The government was no longer required to apportion direct taxes by population and was therefore at liberty to push through a progressive income tax system.

    Posted by brunowe at 09/03/2008 @ 12:40am

20. The only thing wrong with the article is that it's too short (although he says he'll talk about the topic later... why not now?)

    Being almost right can make you totally wrong. Whatever the words, the real issue is a day's work for a day's pay. If you have any sense of the real value of your work, you'll realize that you, and workers and labor and rank and file everywhere, which is about 95% of the working population, produce and create the wealth of the country. So how come that since as far back as I can remember, (going back more than 40 years) 80% of the wealth is owned and control has been quietly transferred to the top 5-10% of the population, and some of in that group don't even produce anything, except manipulate finances to regularly transfer wealth from the bottom upwards?

    I can't figure out how come this isn't clear to anyone with a grade school education and a little arithmetics under his belt.

    Posted by whit3hawk at 09/03/2008 @ 09:34am

21. I can agree with at least some of what has been said here; there is a danger in using the Constitution (and its original intent) as the basis for what ought to be. It was never, for instance, intended to lay out the LIMITS of what rights people could have against their government. What it was meant to do is limit the powers of government, and did so at least partially by delimiting the specific kinds of powers that each branch can have. That's one of the most potent objections to a non-originalist/textualist framework of judging: it allows the judiciary branch to assume a power (amendment of the Constitution) that it does not have.

    Mind you, JakoFabian and others are right on at least this one point: those who designed the Constitution never meant for it to be stagnant. The principles in it were meant to change through the amendment process when it was necessary, and extant principles were meant to be applied to new cases that came before the courts. Though there is a dimension of adaptivity both in the court's ability to apply consistent principles to new cases, and to the legislature's ability to alter the principles themselves, the courts were (and are) not themselves entitled to alter the meaning of the Constitution.

    Posted by Thrawn at 09/03/2008 @ 12:53pm

22. I think you need to read the Bill of Rights carefully, and not depend on some idiot' interpretation. The Bill of Rights sets aside certain civil rights that government is not allowed to touch. With regard to religion, Congress cannot make a law with regard to religion or prevent it's free exercise. Freedom of religion is an INDIVIDUAL civil right. the prohibition is against Congress (government) and not religious practice. While it's intent is to make religion an individual right, the secondary effect is that a secular, neutral government is created that cannot touch religion. This Amendment was in response to historical actions by the British Parliament in which they passed "Acts of Uniformity of Belief", which defined what religious beliefs where legal. For example, In the 1950's, Congress inserted God into the Pledge of Allegiance as a matter of law. What makes this law unconstitutional is that Congress made a law with respect to religion, and they are forbidden to do so by the 1st Amendment. God is not forbidden, but Congress is forbidden to make a law regarding God because it is an individual right that Congress cannot touch!

    Posted by P. J. Casey at 09/03/2008 @ 1:43pm

23. What does it mean to say that laws passed by Congress can't "touch" religion? Clearly, they can do things that intermingle them with religion; if a church is burning down, the city fire department is expected to help stop the fire as much as they would for any residential fire. Frankly, this is far from a simple matter, and it's one that has been debated for quite some time. Granted, the fact that there isn't a crystal-clear brightline doesn't mean that there aren't cases that are manifestly on one side of the line or another; the US Congress unquestionably cannot establish the Southern Baptist Faith or the Buddhist faith as the "official religion" of the United States, but it clearly can levy taxes against individuals regardless of their religious faith.

    When does Congress "make a law respecting an establishment of religion"? Ultimately, the answer lies to a significant degree in a thorough and nuanced analysis of how this principle was originally understood (since no amendment, with the possible exception of the "incorporation" doctrine has come along to change it).

    Posted by Thrawn at 09/03/2008 @ 6:03pm

24. Posted by Thrawn at 09/03/2008 @ 6:03pm

    " ...if a church is burning down, the city fire department is expected to help stop the fire as much as they would for any residential fire."

    True.

    Wouldn't NOT putting out the fire be an exception to that expectation. Perhaps requiring a law about the religious association of any burning building?

    Posted by Malcontent at 09/03/2008 @ 7:29pm