July 08, 2014

EJ Dionne Gets It Ass-Backwards

I don't deny that I am, when it comes down to it, an advocate of the original understanding of the Constitution when it comes to interpreting that document.

What was meant by those who wrote and ratified the Constitution in 1787 and 1788?

How did the authors of various constitutional amendments mean by their creations and how did those who ratified those amendments understand them them?

Those strike me as essential questions to be asked, and their answers ought to be normative. It is why I am frustrated at times by the constitutionalization of policy preferences by unelected judges -- usually of a liberal sort -- based upon some evolutionary theory. Bad policy is not unconstitutional, and a change in the country's social and political mores does not constitute a de facto amendment to our foundation document. Thus I might disagree with the execution of those who committed a crime while they were minors, but I do not see it as constitutionally forbidden (especially because those who wrote and ratified the Constitution and the Bill of Rights did, in fact, understand the Eighth Amendment as allowing such executions). I might, like Justice Clarence Thomas, find a ban on homosexual sodomy to be a silly law and one worthy of opposition as a legislator -- but such an assessment of said law does not make it a violation of any provision of the Constitution. the document means what it says and says what it means -- and reading something more into it is ultimately disrespectful.

I was therefore struck by this from EJ Dionne's most recent column.

The problem with "originalists," Strauss says, is that they "take general provisions and make them specific," even when they're not. One might add that the originalists' versions of specificity often seem to overlap with their political preferences.

Dare I say that the analysis is dead wrong -- and is 180 degrees reversed. We originalists do not hold to a particular understanding of the Constitution because it suits our politics -- our politics are guided by what the Constitution says.

Let me offer an example from the headlines. In recent weeks, we have heard that the President will "borrow" power from Congress and override existing law if Congress will not pass statutes that he wants. I, and most originalists like me, don't oppose Obama doing so because we disagree with the policies he wants to implement (though many of us do disagree with them) -- we oppose him doing so because the Constitution says that the legislative power belongs to Congress alone. I might fight against their adoption, but will accept their legitimacy if Congress were to pass them and Obama sign them into law -- but not otherwise.

For liberals like Dionne, however, it is quite different. He sees the policies he wants adopted implicit in the Constitution, just waiting to spring forth from some emanation of a penumbra of some random constitutional provision. It is his politics that are not merely permitted but which are affirmatively required by a document that mentions them not at all. In other words, he's projecting his own fault onto those he disagrees with -- and in the process gets his analysis absolutely ass-backwards.

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