By Jonah Goldberg
Friday, August 01, 2014
Throughout my life, various Republicans have suggested
amending the Constitution in one way or another. A few years ago, they
suggested revising the 14th Amendment to get rid of automatic birthright
citizenship. Before that, some proposed amending the Constitution to lock in
the traditional definition of marriage. Ronald Reagan wanted a presidential
line-item veto added to the Constitution.
On nearly every occasion, Democrats opposed such efforts,
not just on the merits but on the puffed-up principle that we mustn't
"tinker" or "tamper" with the genius of the Founding
Fathers' constitutional design.
"We should not mess with the Constitution. We should
not tamper with the Constitution," Sen. Charles Schumer (D-N.Y.) declared
when opposing a victims' rights amendment in 2000.
Rep. Raul Grijalva (D-Ariz.) cried in protest to notion
that birthright citizenship should be revoked: "I think it's horribly
dangerous to open up the Constitution, to tamper with the Constitution."
"I respect the wisdom of the founders to uphold the
Constitution, which has served this nation so well for the last 223
years," Sen. Patrick Leahy (D-Vt.) proclaimed from the saddle of his very
high horse in 2011, in opposition to a balanced budget amendment proposal.
"Let us not be so vain to think we know better than the Founders what the
Constitution should prescribe."
Then-Sen. Dale Bumpers of Arkansas opposed a balanced
budget amendment in the 1990s: "As much respect as I have for a number of
members of the Senate -- and we have some very bright people in the Senate --
there isn't anybody here, really, that I want tinkering with what James
Madison, John Adams, Alexander Hamilton and all of the rest of those brilliant
people, the most important assemblage of brilliant minds under one roof in the
history of the world, did."
As a conservative, I'd be the last person to deny that
these men had a point. Mucking about with the Constitution is heady stuff, and
we shouldn't consider doing so lightly.
But the real reason these Democrats opposed
"tampering" with the Constitution wasn't reverence for the genius of
the founders. What they really opposed was tampering with a status quo they
benefitted from. These same Democrats are the first to applaud when the Supreme
Court manufactures new rights from the Constitutional "emanations of
penumbras" not found anywhere in the text. They are fully vested members
of the cult of the Living Constitution.
President Obama, Al Gore, Hillary Clinton and countless
other liberals have pledged undying fealty to the idea that the Constitution
needs to be reinterpreted with the changing times. Obama insists that the most
important qualification for a Supreme Court justice isn't legal reasoning or
judicial experience, but "the depth and breadth of one's empathy. ... The
critical ingredient is supplied by what is in the judge's heart."
This saccharine tommyrot is the exact opposite of
reverence for the Constitution; it is reverence for liberal judicial activism.
Now Democrats have changed their mind. Earlier this month
the Democrat-controlled Senate Judiciary Committee approved on a party-line
basis a constitutional amendment to undo the Supreme Court's decision in
Citizens United v. Federal Election Commission. House Democrats have introduced
a similar amendment.
On the merits it's a horrible idea, motivated in part by
a desire to bleat about the evils of the Koch brothers in Democratic
fundraising pitches.
The stated intent is to allow the government to regulate
how much money people and corporations can donate to political campaigns. But
such regulations can quickly step on the First Amendment. Recall that the
Citizens United case made it to the Supreme Court because under the old
campaign finance system, an independently produced (albeit fiercely partisan)
documentary about Hillary Clinton was dubbed an in-kind donation to the
Republicans because it amounted to a stealth ad. The Obama administration
argued before the court that campaign finance laws could be even used to ban
books "if the book contained the functional equivalent of express
advocacy."
But even though I think the proposed amendments are
ill-conceived, I am delighted that the Democrats have taken this route. This is
exactly how we're supposed to change the meaning of the Constitution. If the
Constitution forbids X but the American people decide -- through extensive
political debate -- that X should be permitted, then the only legitimate course
of action is to change the Constitution to allow X. Stacking the courts with
priests of Living Constitution cult who will simply rewrite the Constitution by
fiat is lawless, undemocratic and anti-constitutional.
The Democrats' hypocrisy amounts to real progress.
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