Dec. 16 (Bloomberg) -- These days, conservatives proudly proclaim their love for the Constitution. Yet many seem unsure whether to revere it or repeal it, plank by plank.
Such constitutional nihilism extends well beyond the drive to strike down the U.S. health-care law, a jarring move by those long opposed to judicial activism. It reflects a deep discomfort with the country’s growth toward a thriving, coast-to-coast democracy.
To be sure, these activists insist they only want to show they revere our founding document. Earlier in the year, 80 groups issued the “Mount Vernon Statement.”
“The federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant,” it said.
Representative Michele Bachmann, a Republican from Minnesota and head of the Tea Party caucus in Congress, recently said she would start another caucus, for “Constitutional Conservatives.” One expects them to show up on C-SPAN in powdered wigs.
But as for the actual Constitution, as we have lived it for two centuries, some are itching to pull out their quill pens and start furiously crossing things out.
Some advocates want to rewrite the 14th Amendment, a landmark of the Constitution -- indeed, of human freedom. The amendment guaranteed equal protection of the law and due process to former slaves. Under its provisions, if you were born in the U.S. you had the rights of a citizen. The amendment was enacted by the Radical Republicans, which meant something very different back in 1868.
Now Senators John Kyl and Lindsey Graham have suggested rewriting this core part of the national charter. Children born here are not in fact citizens, they argue, if their parents crossed the U.S. border illegally.
In addition to punishing innocents for what their parents have done, this would rewrite a central provision of the Constitution for the sake of a temporary solution to a barely existent problem. To punish a few “anchor babies,” they would redo the handiwork of the great Civil War amendments.
Other conservatives decry the 16th Amendment, which authorized the income tax. Until Glenn Beck floated the idea of its repeal last year, it was known mostly to high school students studying for an SAT subject test.
After a Gilded Age Supreme Court declared it unconstitutional to tax income from property and other sources, it proved necessary to enact a constitutional change to fund the federal government. This was a breakthrough in the drive for a strong country. As Supreme Court Justice Oliver Wendell Holmes said at the time, “Taxes are the price we pay for civilization.”
Attacking 17th Amendment
Most baffling of all, many Tea Party backers want to overturn the 17th Amendment, which created direct public election of U.S. Senators in 1912. This was a key political reform of the Progressive Era, and a major step forward for democracy.
For the country’s first century, state legislatures chose senators. The process grew deeply corrupt. By the late-19th century, lawmakers were notoriously, flagrantly for sale. It was said that John D. Rockefeller’s Standard Oil Co. did everything to the Pennsylvania legislature but refine it. Turn-of-the-century state officials routinely picked senators who were little more than front men for newly flush corporations.
Those who want to end direct election of senators say the step would return power to the states. Certainly, it would give state legislators more power -- and the lobbyists and party bosses who make governing such a treat in so many capitols. The thought of Albany or Sacramento choosing senators doesn’t exactly inspire confidence. Lobbyist power would make us pine for the good old days of earmarks.
More fundamental, why would voters want to give away the power to choose their own representatives? The original Tea Party called for “no taxation without representation.” This Tea Party seems to pine for “taxation with no representation.”
As they target past amendments, self-designated constitutional conservatives have one of their own. Representative Eric Cantor, a Virginia Republican in line to become House majority leader next month, is among the backers of a so-called Repeal Amendment, which would give two-thirds of the states the power to nullify federal laws.
As legal journalists Dahlia Lithwick and Jeff Shesol wrote Dec. 3 in Slate, “American history reveals precisely what happens when state or regional interests are allowed to trump national ones,” noting that this would threaten civil rights and environmental laws, as well as moves that benefit one region (such as repairing New Orleans after Katrina).
Back in Time
This amendment, if passed, would mark the dismantling of the strong national government that has helped make the U.S. the most powerful nation in world history. It would turn back the clock not to before the New Deal, but to before the Civil War.
Strikingly, these constitutional forays would repeal some of the greatest advances in democracy. A movement born as a populist squall seems oddly uncomfortable with the very mechanisms that give ordinary citizens the loudest voice.
It is genuinely heartening that people care about the Constitution. The rhetoric, at least, denotes a craving for a meaningful national identity, a yearning for core values that we should all applaud. But may I suggest to our overheated fellow Americans: Don’t stop at reading the Constitution. Try the Declaration of Independence too: “All men are created equal.”
(Michael Waldman, former head speechwriter for President Bill Clinton, is executive director of the Brennan Center for Justice at New York University School of Law and the author of “My Fellow Americans.” The opinions expressed are his own.)
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