It is fascinating to see the liberal response to House Republicans reading the Constitution in the House chamber. At the New York Times, reporter Kate Zernike offers an “annotated guide” to the Constitution that purports to explain the main battlegrounds between, as the Times frames the dispute, the Tea Party and progressives:
The following is an annotated guide to the clauses most revered, and disputed, by advocates on either side of the political spectrum.
There is no question, of course, which side the Times is on:
[The 10th Amendment] declares that the powers not delegated to the United States by the Constitution “are reserved to the States respectively, or to the people.” To Tea Party activists and constitutional originalists, this is evidence that the framers meant to protect the central role of the states.
In recent years, many states, including South Dakota, Wyoming, Utah and Oklahoma, have passed sovereignty or 10th Amendment provisions declaring that the state’s residents are exempt from federal laws on gun control or health care, or in the case of Utah, that the state can limit the authority of federal law enforcement, even on federal lands. Nullification was also, of course, the rallying cry for pro-slavery politicians before the Civil War and for segregationists in the 1950s and 60s.
Sure–the Republicans who oppose Obamacare are just like pro-slavery Democrats!
The Times’ analysis contains a number of howlers. Here is how the paper addresses the sections that confer powers on Congress:
Article I, Section 8, clauses 12 and 13, 14: Those calling themselves “progressive constitutionalists” argue that we have little in common with the framers, and that therefore it is a given that the Constitution would evolve as the country did. (We have more in common with modern-day Canadians, they note, and we’d never think of ceding our sovereignty to them.)
Is that revealing, or what? We have “little in common with the framers”? Not even, apparently, a system of government. This is reminiscent of Ezra Klein’s observation that the Constitution is old, so we may as well ignore it. Which means, apparently, that the rule of law is impossible, since no country can adhere for long to a written constitution.
And what is that reference to “ceding sovereignty” supposed to mean? Apparently the Times thinks that if we follow the Constitution, we are “ceding sovereignty” to the Founders, as though they were a foreign invader. Unbelievable. The Times continues:
Article I, section 8, clause 18, dictates that Congress has the power “to make all laws which shall be necessary and proper” for carrying out the powers of the federal government. To progressives, “necessary and proper” is broad language inserted by the founders to allow the Constitution to evolve. Alexander Hamilton cited it as the justification for establishing a central bank; Tea Party supporters say there is no provision for the Federal Reserve in the Constitution.
I’ve never understood what liberals mean when they say the Constitution “evolves.” They clearly don’t mean that it can be changed by amendment. Nor do they seem to be referring to, for example, the application of the First Amendment to the internet, even though the web is not a “press.” When liberals talk about “evolution,” it generally seems to mean making stuff up–but only liberal stuff, of course.
The Necessary and Proper clause is not a charter for evolution. It does not confer any new powers on Congress, but rather allows Congress to effectuate the powers that are enumerated through legislation.
This is the weirdest of the Times’ meditations on the Constitution:
The 16th Amendment: Tea Party activists and some Republican politicians, such as Senator Jim DeMint of South Carolina, argue that this amendment, establishing an income tax, actually contravened the Constitution, because an earlier clause, in Article I, Section 9, had established that taxes could not be laid except “in proportion to the Census or Enumeration” ordered by the Constitution.
Many new Tea Party legislators campaigned on a repeal of this amendment. Progressive constitutionalists again argue that this was a deliberate affirmation of the broad powers of Congress — passing an amendment requires approval by a supermajority of states. (Can anyone imagine 38 state legislatures voting, in the current climate, to give the federal government more power to tax?)
It is hard to imagine a more confused discussion of any Constitutional provision. In the first place, a properly enacted amendment to the Constitution, by definition, cannot “contravene the Constitution.” It is absurd to claim that “Tea Party activists and some Republican politicians” have taken that position. (A particular provision of an income tax statute could, of course, be unconstitutional; for example, Congress could purport to confer enforcement methods on the IRS that violate the Fourth Amendment. But an income tax per se is unquestionably constitutional pursuant to the 16th Amendment.)
I was curious about the Times’ claim that Jim DeMint has argued that the 16th Amendment is unconstitutional. Given that DeMint co-sponsored legislation to extend the Bush income tax rates, and given that DeMint is not an idiot, the claim is counter-intuitive at best. A Google search revealed exactly one place where it was alleged that DeMint took the absurd position described by the Times: a wacky left-wing site called Firedoglake. Someone called “Blue Texan” wrote on that site:
Listen to Jim DeMint at CPAC, suggesting that the federal income tax is unconstitutional.
If you follow the link to DeMint’s CPAC speech, you find, needless to say, that DeMint said no such thing:
Those principles were written into a contract with the American people that promised to limit the federal government’s power.
We call that contract the Constitution and, when it was signed, it didn’t even allow a federal income tax — that sounds like a good way to limit the size of the federal government to me.
DeMint, like many others, has on occasion argued for replacing the income tax with a national sales tax. But neither in the CPAC speech nor anywhere else, as far as I can tell, has he or any other Republican politician ever made the absurd claim that the 16th Amendment is unconstitutional. Which raises the question: where did the Times get its information? Is it possible that the paper does its research by reading posts by scholars like “Blue Texan” at left-wing web sites? One would assume not, but I haven’t been able to come up with an alternative. I emailed Kate Zernike earlier today and asked her source for the statement about DeMint. So far, she has not responded.
Finally, there are these statements, which make no sense at all:
Progressive constitutionalists again argue that this was a deliberate affirmation of the broad powers of Congress — passing an amendment requires approval by a supermajority of states. (Can anyone imagine 38 state legislatures voting, in the current climate, to give the federal government more power to tax?)
How does passing an amendment that authorizes an income tax represent a “deliberate affirmation of the broad powers of Congress”? What it constitutes is a recognition that the powers of Congress are defined by the Constitution, and if you want to expand those powers you have to enact an amendment–precisely the opposite of what I take to be the position of the “progressive constitutionalists,” who think the powers of the federal government are constantly expanding through “evolution.”
The Washington Post didn’t write anything as unintentionally humorous as the Times’ “annotated guide,” but it did offer this sensational headline: “Notable passages of Constitution left out of reading in the House.” Wow! the unsuspecting reader will think. The Republicans “left out notable passages”? How hypocritical!
If you read the Post’s story, however, you quickly realize that there isn’t any story. The “notable passages” that the Republicans (and some Democrats, I believe) didn’t read were the ones that have been deleted or changed by amendment. In other words, they read the Constitution as it actually exists, today.
What is striking, I think, is the fear and loathing that the mere reading of the Constitution engenders on the left.