The Redacted, Sanitized Constitution


Dana Milbank, writing in the Washington Post, offers a voice to a widespread complaint. The reasonable observer cannot help but entertain the notion Mr. Milbank is also offering a semblance of substance to a complaint, that in reality has none.

What the Republican majority decided to read [in the House of Representatives] was a sanitized Constitution – an excerpted version of the founding document conjuring a fanciful land that never counted a black person as three-fifths of a white person, never denied women the right to vote, never allowed slavery and never banned liquor.

The idea of reading the Constitution aloud was generated by the Tea Party as a way to re-affirm lawmakers’ fealty to the framers, but in practice it did the opposite. In deciding to omit objectionable passages that were later altered by amendment, the new majority jettisoned “originalist” and “constructionist” beliefs and created – dare it be said? – a “living Constitution” pruned of the founders’ missteps. Nobody’s proud of the three-fifths compromise, but how can we learn from our founding if we aren’t honest about it?

Right, Dana. Any time I want to figure out how I can learn something, I make a bee line straight for people like yourself who so clearly haven’t learned even the basic essentials about that very thing.

Scripsit Ghettoputer makes a diligent effort (hat tip to Prof. Mondo) to figure out what’s going on here:

1. BEST CASE: Mr. Milbank views everything through a liberal’s twisted viewfinder, in which everything is reducible to group identity and victimhood. Here, the Republicans’ purpose in reading the Constitution was to remind themselves (and the Democrats) that there are limits to legislative authority. Mr. Milbank feebly attempts to cram down his own preferred purpose on the Republicans’ Constitution reading: a history lesson showing why White European American men are evil and bad, and must be blamed and/or punished for any unfortunate occurrence befalling any Democrat recognized victim class at any time, in any place. If this is the case, Mr. Milbank’s odd take can be ascribed to his liberal myopia.

2. WORST CASE: Mr. Milbank is being purposefully obtuse in order to tar Republicans as out-of-touch racists, beholden to Tea Baggers (ZOMG!!1!) in order to further liberal aims and agendas. ‘Puter’s got some experience in the law, and in all but a few instances, one may blithely ignore repealed laws (or portions thereof) because they are, you know, no longer operative. Claiming that Republicans must read inoperative portions of the supreme law of the land is as stupid as insisting that astronomers recognize that the Sun revolves around the Earth, because that’s what the general consensus was hundreds of years ago. Mr. Milbank is not a stupid man, so ‘Puter is left with the sole remaining possibility: bad faith. But why?

Mr. Milbank and liberals want to discredit the Constitution. To them, the Constitution and its limited government concept stands in the way of letting smart people (largely, them) dictate how stupid people (largely, us) live, because the smart people know best. Mr. Milbank and his fellow travelers know well that much of the liberal agenda is, at a minimum, in tension with Constitutional mandates, if not outright unconstitutional. See, e.g., the individual mandate. Republicans reminding America that there is a limit to government cannot be tolerated, as it challenges liberals’ ability to impose their agenda on a benighted citizenry.

My own opinion? I don’t think it’s even this complicated. The persons whose sentiments are echoed by Mr. Milbank, or at least who say their sentiments are aptly represented by this argument, obviously see the reading of the Constitution as nothing more than an opportunity to ‘fess up to, and wallow around in, our nation’s historical sins. Or to cravenly pretend that those historical sins never were there.

Now, if that is the most important thing about what such a ritual means to you, how do you go about ‘fessing up to that without also ‘fessing up that you have not been abiding by the document’s confinements?

As I said a couple days ago, now that the dirty deed has been done this has turned out to be a shrewd political gambit. Yes, there were some legally current sections of the Constitution that were “abridged” or “redacted” when some pages within the binder stuck together. Seems to have been executed with all of the reliability and integrity of President Obama’s swearing-in.

But it has been logically proven to everyone paying attention — and this is the biggie: We are having an argument, in our nation’s capitol, about whether the Constitution matters.

How did Chief Justice William John Marshall put it:

[I]f a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. [emphasis mine]

If we have a written Constitution, it must be binding and supreme to the lesser laws or else it is as entirely extraneous as the left-wingers like Milbank seem to think it is. But how many Supreme Court decisions that the hard left happens to appreciate, in fact idolize and worship, would have to go the other way if the Constitution is nothing more than a historical wart. Any state in the union could criminalize abortion willy-nilly — that, clearly, is not what they have in mind — so that cannot be it. The Constitution is therefore legally relevant, legally superior.

If it is legally relevant and legally superior, then when it applies to a case along with an ordinary written law that provides a different consequence, the Constitution must triumph, so that the lesser law becomes a nullity.

With such a pecking order in place, our nation becomes a nation of laws and not of men. The interpretation of law becomes a necessary chore, one which must be carried out with logical coherency, in the three branches of government as well as in the fourth one in which Mr. Milbank toils away.

And he, along with all his sympathizers, has just confessed to “controvert[ing] the principle that the Constitution is to be considered in court as a paramount law”; he and his sympathizers “are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.”

Apparently, this schism whose description flowed so eloquently from Chief Justice Marshall’s pen some two centuries years ago rages away today with little deviation or evolution, even on a micro level, from its past form. If that be the case, then I cannot imagine a more productive exercise for our Congress than to read the legally applicable parts of the founding document during the opening of the session. In fact, there’s something of an urgency to it if it generates this much controversy. The Constitution must apply, or else we’re currently engaged in some kind of lost-in-the-jungle, make-it-up-as-we-go-along silliness.

Congress has the steering wheel and people like Dana Milbank want to make a contentious issue out of whether it should observe where the guardrails are.

Cross-posted at House of Eratosthenes and Washington Rebel.

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