The Democrats' Constitution
Last night Paul and John commented on yesterday's New York Sun story by Gary Shapiro on Senator Obama's contribution to Laurence Tribe's Harvard Law Review article "The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics." According to Shapiro's summary of the article, Tribe "argues that constitutional jurisprudence should be updated in a similar way that Einstein's theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America." The purpose of Shapiro's article is to deduce the views of Senator Obama on the subject, views that are of interest now that he is running a Chauncey Gardiner-style campaign for the presidency.
I don't think that we need to look for clues to Obama's views in a 1989 Harvard Law Review article. The views of Democrats and their judicial nominees toward the Constitution have followed lines laid down in the Progressive Era by Woodrow Wilson and others. As Ryan Sager suggests in his comment on Shapiro's article, liberals already treat the Constitution as a plaything subject to the doctrine of "the living Constitution." It is a view that derives from belief in "progress" and a hostility to the Founders' belief in natural rights and limited government. In the view of the Progressives, limited government was the enemy of progress.
The assault on the Constitution in the name of progress can be seen most clearly in the academic work of Woodrow Wilson. Paul Mirengoff summarized Wilson's views in a Standard column -- "From Hegel to Wilson to Breyer" -- to which I contributed the research assistance (as Obama did for Tribe's 1989 law review article) and Paul the brainpower. Wilson drew on modern science to express his view that the Constitution was obsolete, perhaps most memorably in his 1913 book The New Freedom: A Call for the Emancipation of the Generous Energies of a People. Wilson frankly detested and rejected the principles of the Founding, which he described as "Newtonian," in favor of Darwin and the idea of Progress:
The makers of our Federal Constitution read Montesquieu with true scientific enthusiasm. They were scientists in their way,—the best way of their age,—those fathers of the nation. Jefferson wrote of "the laws of Nature,"—and then by way of afterthought,—"and of Nature’s God." And they constructed a government as they would have constructed an orrery,—to display the laws of nature. Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of "checks and balances."Thus in politics we have long since entered the era of unlimited government to which the "compassionate conservatism" of President Bush meekly consents. And thus on the Supreme Court we have Stephen Breyer and Ruth Ginsburg seeking to render constitutional law cosmopolitan (as well, of course, as Anthony Kennedy and his "song of the open road").The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live.
In his current Claremont Review of Books editorial, Charles Kesler calls for the return of constitutional principles to our politics:
Thinking about the Constitution as a guide to policy has almost gone out of style, except in the appointment of judges and the current debate over war powers, a welcome throwback, in its way. One would have to go back to the Reagan era, and before that to the 1960s, to find Republican leaders opposing major government programs on constitutional grounds.But the alternative to reviving constitutionalism is to make policy with no limits except for the judges' whims, and with no guide except our leaders' visions, distilled from their constituents' desires. The alternative to constitutionalism, in other words, is to play politics according to the Democrats' rules. That's a losing game.
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