The Constitution Fetish

Progressives are hot for Wickard v. Filburn, not the Constitution.

Andrew C. McCarthy
Saturday, January 08, 2011

Is there anything richer than a gaggle of smarmy progressives snickering at the conservative “Constitution fetish”? “Fetish” is the fashionable Left’s latest suggestive imagery turned talking point, a dig at the new Republican majority in the House, which began its session this week by reading the Constitution aloud. It’s as if Dracula were complaining about a crucifix fetish.

“Fetish,” like “tea-bagger,” slides easily off the tongues of the Big Thinkers who get their dithering law from Dalia Lithwick and their sophomoric style from Bill Maher. If there is no Obama to send a thrill up their legs, it takes an organic Constitution throbbing with active liberty to ring their chimes. The lifeless one read from the podium Thursday — which must have been, like, a hundred years old or something — leaves them limp.

If you really want to see what irrational arousal is like, though, get thee to the nearest faculty lounge or MSNBC set and hum a few bars of the Warren Court’s greatest hits. Like a hand reaching through the epistemological fog, you’d think Harry Blackmun’s impenetrable prose had been touched by Aphrodite herself. Sure, your average fetish-fixated tea-bagger may be satisfied by such humdrum fare as laying taxes, disciplining the Militia, and punishments cruel and unusual. But it took Blackmun’s exotic penumbras, the “Hippocratic Oath’s apparent rigidity,” and a touch of in utero “quickening” before the siren trio of Kennedy, O’Connor, and Souter were up to seducing New York Times editors and one-note feminists with their hypnotic “Sweet Mystery of Life.”

Explaining (sort of) why Blackmun’s iconic Roe v. Wade decision simply had to be preserved despite its void of support in law and logic, they wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” You’re telling me you think James Madison could compete with that?

“Existence” and “the universe” — we have czars for those now, right? There are no czars in that stale old Constitution Republicans were reading. There’s also no health care, no TARP, no General Motors, no AIG; no Departments of Justice, Labor, Health, Human Services, Energy, Education, Agriculture, Urban Development, or Transportation; no FCC, FTC, SEC, ICC, FDIC, FAA, FHA, or FEMA; no Council of Economic Advisers, Economic Adjustment Office, Economic Development Administration, Economic Research Service, or Economics and Statistics Administration; no Community Oriented Policing Services; no Bureaus of Public Debt, Reclamation, Transportation Statistics, International Labor, or Immigration Services; no Administrations for Children and Families, Native Americans, International Development, Battle Monuments, Toxic Substances and Disease — not even an Arthritis and Musculoskeletal Coordinating Committee or a Federal Interagency Committee for the Management of Noxious and Exotic Weeds (I kid you not).

Now we’re talking limited government, Obama-style. No wonder the government has to keep borrowing — how could we conceivably cut when existence needs regulating throughout the universe? Let Republicans have their precious Constitution, a relic written in ancient times by a white oppressor class. The Left’s got a real fetish: the rewritten Constitution, courtesy of the Supreme Court.

And would that it were just a fetish. In 2005, the justices sparked public outrage by ruling that government kleptocrats could seize private property in order to increase the tax haul — er, I mean, for sustainable community development. Was this really an appropriate invocation of eminent domain? Shouldn’t the people’s representatives rein in this blatant judicial overreach? Once and future minority leader Nancy Pelosi was astonished at such impertinent questions. “It is a decision of the Supreme Court,” she harrumphed. “It is almost as if God has spoken.”

For the progressive, everything evolves except their cherished, lawless Supreme Court precedents. The GOP fetishists will just have to deal with the reality that what the Constitution meant yesterday and still says today will be gnarled into something very different tomorrow. That’s how it goes with the “evolving standards of decency that mark the progress of a maturing society.” When progress is marked by the art of Chris Ofili, gangsta rap, and the statesmanship of Al Franken, should we really be surprised when, say, “nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws” somehow becomes a license for preferences based on race, ethnicity, gender, religion, or whatever bloc the divide-and-conquer Left decides needs cuddling?

The Constitution can be twisted to mean whatever progressives want it to mean. But once the twisting is done, progress grinds to a halt. At that point, the result is set in stone, forever — as if God had spoken (the only reference to God you’re apt to hear). If the rickety foundation of Roe collapses under its own illogic, the sweet mystery of life will save it until enough new justices pass a “litmus test” that makes it unreviewable. If Congress tries to reverse Miranda, a Democratic administration will refuse to defend the statute in court — even if it means a confessed bank robber gets to keep robbing banks. And don’t even think about touching a comma of Wickard v. Filburn. That’s the 1942 ruling that turned the Commerce Clause into a green light for government to control everything from noxious and exotic weeds to your relationship with your doctor (unless you want an abortion — Roe’s still got you covered on that one).

“Liberty finds no refuge in a jurisprudence of doubt.” So pronounced the Casey court when it was clear that nothing short of sheer willfulness could save Roe’s invented right to abortion. Maybe if Democrats turn the tables in 2012, we’ll hear Debbie Wasserman Schultz read Casey to start the next Congress. What does the passage mean? Whatever the Left needs it to mean. Now that’s a fetish.