A Meaningless Constitution, Thankfully.

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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40 Responses

  1. LarryM says:

    What’s the positive symbolic value, anyway? I mean, even those who want a much more substantially limited role for government – either minarchist, or a somewhat broader vision that would allow for a circumscribed safety net. Does anyone think that we’re REALLY going to get there by a better understanding of the limits of constitutional government? I mean, even setting aside sincere disagreements about legitimate methods of constitutional interpretation, do you think the adherents of limited government are going to win by convincing people that certain programs, while worthy, must be eliminated because they exceed the narrow limits of the constitution? I mean, it’s all well and good to argue that in the abstract, and even going forward with regard to new programs, but a narrow reading of the constitution … that ship sailed a LONG time ago. It may be possible to get back there – but only by persuading people on the merits of the small government.Report

    • LarryM in reply to LarryM says:

      Let me expand upon this a bit. Three points:

      (1) In the abstract, the only way to have a small government nation over a long period of time is to have a populace who believes in small government. A narrow constitution is secondary to this goal, not primary – i.e., it can prevent the passions of the moment from expanding government, and it can reduce the ratchet effect of such expansions becoming precedents for further action. But no constitution, in the long run, can prevent the majority from imposing their will – if that will is for big government, ultimately that will prevail.

      (2) In the contemporary U.S., constitutionalism is, on a purely PRACTICAL basis, not a serious adjunct to smaller government. You have to convince the people. And … given, to just cite one example, the “keep the government out of my Medicare” attitude of the average voter, you have a LONG way to go to do this. Part of my critique of the tea party is that their (so far – prove me wrong, please) use of small government tropes, contrasted with the (for the most part) lack of real small government specifics, makes this sort of change in public conceptions of government harder, not easier.

      (3) Parenthetically, and I am not the first to make this point, reading the constitution as a libertarian document is a mistake. Read textually, it provides a more cirumscribed role for government, and likely the founders would be surprised at the size and extent of 21st century government. But the libertarian position was the articles of confederation.Report

  2. Scott says:

    What about the new Congressional rule that requires every bill to contain a section citing the constitutional provision that gives authority for whatever the bill does? That will be a nice change from the Dems view that the gov’t has the power to do whatever they want it to do.Report

    • LarryM in reply to Scott says:

      Well, Scott, “nice” change or not, it would be epurely symbolic, having no substantive effect on law making. Just about every bill would contain a reference to the commerce clause -regardless of whether you think that’s legitimate.

      As for your characterization of the Dem position, it is is a distortion (albeit, an understandable one) of the Democratic position.Report

      • Scott in reply to LarryM says:

        A distortion really? What about Pelosi’s statement about HCR, “But we have to pass the bill so that you can find out what is in it, away from the fog of controversy.” Or Rep. Pete Stark who in a town hall on July 24 said, “I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life.” Or disgraced judge and fine democrat Alcee Hastings, “we make the rules up as we go along…”Just a few examples of liberals view of the gov’t.Report

  3. Francis says:

    The Constitution has not been edited. It has been amended.Report

  4. Steve S. says:

    It’s not so much the empty theatrics as that this is akin to O.J. Simpson solemnly reading aloud the California domestic violence statutes. I find the religious invocations less offensive, oddly enough, since at least they have an outside party who presumably is an earnest believer do the invoking of the putative deity.Report

  5. Michael Drew says:

    The text is the text; it is an act of interpretation to decide just which language later changes in fact strike from the document. As far as I know, no language has in fact been stricken, only more language added to supercede or change the meaning of existing provisions. If you want to say you’re reading the text of the Constitution, you need to read the text of the Constitution. Anything less is interpretation. here’s nothing about reading out the Eighteenth Amendment, for example, being that it is still in the text, that makes in any less taken out of force by the Nineteenth. Indeed, had I been the Congressman tasked with reading the Nineteenth, I’d have considered a great deal of my thunder to have been stolen by never having had the clear folly of prohibition put symbolically into force in the record for me then to take it out.Report

    • Mike Schilling in reply to Michael Drew says:


      1. Prohibition was repealed by the 21st Amendment.
      2. I’d call “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.” a pretty clear indication that it’s no longer in force.Report

      • Michael Drew in reply to Mike Schilling says:

        Thank you, Mike. Damnit, I always do that re 18 & 21.

        Is your “nitpick,” then, a sarcastic rejection of my premise? Because my argument rests on exactly that point: that there’s no reason to be afraid of or whitewash parts of the Constitution that have been deactivated, because the parts of the Constitution that act on other parts of the Constitution are in fact robust. But if we simply strike those parts that are dactivated, then the the parts that do that lose context and sound unmoored from the document. Why read the 21st if not the Eighteenth? Why be afraid of 3/5ths when we know we have the glorious Thirteenth coming up? The whole text is the whole text.

        Perhaps I am mistaken, and some of these amendments actually do strike language from the text. I’d like it explained to me what the mechanism for that is, then, however.Report

        • Mike Schilling in reply to Michael Drew says:

          I was making a distinction explained a bit further below. The 18th was very explicitly repealed. The pre-12th procedure for choosing the president and VP was explicitly overridden. “3/5” is simply inactive, and will remain so unless a class of “other persons” is created. (Robots? Uplifted chimps?)Report

          • Michael Drew in reply to Mike Schilling says:

            I’m left unclear about whether you think it remains part of the document that should be read when one purports to read the document.Report

            • Mike Schilling in reply to Michael Drew says:

              It’s certainly part of the document. If I were reading it aloud, I’d probably explain which parts no longer apply as I came to them. But I’d be reading it as an attempt to educate or at least communicate, not as part of a quasi-religious observance, so some obiter dicta wouldn’t be amiss.Report

              • James K in reply to Mike Schilling says:

                How are repealed provisions of laws normally treated in the US? In New Zealand if a section of a statute is repealed then the text of that section is replaced with “Repealed”. If a section is amended, the old text is replaced with the new.

                I would suggest that constitutional amendments should be treated the same was as statutory ones.Report

    • Jason Kuznicki in reply to Michael Drew says:

      Are you suggesting that the clauses pertaining to slavery are still in effect? If so, where?Report

      • Mike Schilling in reply to Jason Kuznicki says:

        They weren’t repealed per se, it’s simply that the class of persons they affect is now empty. If the 13th were repealed, the three-fifths clause (for example) wouldn’t need to be explicitly re-enabled to once more take effect.Report

      • Michael Drew in reply to Jason Kuznicki says:

        I must have been extremely unclear. They’re in the text. As far as I know they have not been removed from the text. But they are out of effect, pursuant to subsequent changes. But that is an emergent legal fact from the whole document, not a function of their being physically stricken from the text (something for which I don’t know that mechanism for doing even exists ). In order to get the whole meaning of the whole text, we have to take all the language that hasn’t been literally removed from the Constitution (none, that I am aware of) as still part of the document, and read it along with other language that has changed the previous language’s effect (including taking it completely out of force). To apply the meaning of later language to the actual earlier language in such a way as to strike it from existence is actually only charitably described as interpretation; indeed, it’s a unilateral textual revision on the part of those conducting this exercise to the extent they claim to be reading the text of the Constitution. But this is certainly not to say that later Amendments don;t effectively do what they say they do with regard to earlier provisions that they reference. They just don’t take that language out of the text.Report

        • Jason Kuznicki in reply to Michael Drew says:

          So what did the Twelfth Amendment do? Did it clearly render null and void a whole lot of language in the original text? Or did it create a field for argument?

          This just strikes me as so much muddle-headed postmodernism, but I’m inclined to go with it anyway. Here, look — the three-fifths clause grants apportionment (but not voting, of course) to three-fifths of “all other persons.” This, as per Madison’s journals of the constitutional convention, was universally recognized as a euphemism for slavery.

          But if it’s still in force — and if we are just sort of mysterious these days about who these “other persons” are — then I’ve got a candidate for you.

          Corporations. Give them representation too!

          As you say, it can’t even be charitably described as interpretation. I’m just taking the plain meaning of the text, which you’re bound to acknowledge, I’m sure.

          Law doesn’t reason this way. The original public and founders’ meanings on the three-fifths clause are both exceptionally clear. There is no doubt that it has been removed from the constitution as an operative clause, every bit as effectively as if it had mentioned slaves by name, or as if the Thirteenth Amendment had also said “The Three-Fifths Clause is hereby repealed.”

          The reason it didn’t is that it would have been otiose. In short, you’re arguing for a nullity.Report

          • Michael Drew in reply to Jason Kuznicki says:

            You seem to be hung up on interpreting my “it’s still part of the text” as being also “and therefore it’s still in some mysterious way in force, even though it’s not really, but kinda,” despite I’m doing all I can to just say that certain language (such as repealed Amendments) that are absolutely not in force are still absolutely part of the text. That’s as much as I’m saying.

            On the question of the status of language that is not 100% clearly explicitly out force per explicit Constitutional language elsewhere, but is clearly out of force in practice and law nevertheless as in the three-fifth language, potentially force/nullity argument, I’d ask you to take that up with Schilling, because that’s not the argument I initially meant to advance (though I think it might be right), I’m not totally confident in it, and he’s making it better than me.

            For that matter, I’m not even confident in what I am trying to advance here, and I’ve said so. I don’t know how it is that Amendments take language out of the Constitution, and even in the case of repealed Amendments, I think it makes more sense and as far as I know is textually correct, to include in a reading the language that will later be referenced (and perhaps nullified) by subsequent language in the text. This allows the document to tell its own textual history in its own way, and, as I said, AFAIK is textually correct. If someone can explain to me how this is in fact textually incorrect, and what the mechanism is by the earlier language is in fact stricken from the text of document by later language, I’m sincerely more than happy to be told.Report

  6. Mike Schilling says:

    It’s funny how Sandefur’s criticism of big government is entirely about the welfare state (other than a quick mention of the war on drugs), and not a word about the recently invented executive power to kidnap, indefinitely detain, and torture Americans during the current period of permanent war. Republicans might be less than committed to ending the former, but they actively created the latter.

    This is another cliche about libertarians that seems to be constantly reinforced: the only freedoms they care about are the ones that affect their wallet.Report

    • Jason Kuznicki in reply to Mike Schilling says:

      Given that Sandefur’s own work is primarily on economic issues, I don’t hold it against him.

      He was as I recall quite critical of the conservative justices in Hamdan, if it makes you feel any better.Report

      • Bubbaquimby in reply to Jason Kuznicki says:

        Is that critique of libertarians worse than the critique that liberals only care about those issues when Team Red is taking freedoms away/fighting wars and the same can be said for conservatives who only care about Big Gov’t spending when Team Blue does it?Report

        • Bubbaquimby in reply to Bubbaquimby says:

          That was meant in reply to Mike.Report

        • Mike Schilling in reply to Bubbaquimby says:

          A lot of liberals that are unhappy with Obama on those grounds and are quite vocal about it. The blogosphere is full of them.Report

          • Jaybird in reply to Mike Schilling says:

            There are fewer Pro-Hamas rallies masquerading as anti-war rallies though.

            I imagine that there are a dozen reasons that those petered out, of course.

            But at least some of them have to do with the fact that it’s much less fun to protest against “your” tribe. (See also: a sizable chunk of the Tea Parties.)Report

          • Bubbaquimby in reply to Mike Schilling says:

            Just because Glenn Greenwald is pissed doesn’t mean anything. And I know there are other bloggers. But bloggers aren’t even a majority of the liberal movement. You can’t tell me that it hasn’t significantly decreased in vocalness since Obama came into office.

            There were conservatives that didn’t like Medicare Part D, No Child Left Behind, etc during Bush years. There just not the ones on Fox or most movement conservatives. Hell there were and continue to be Paleos like Buchanan and Daniel Larson that hate Iraq and Afghanistan. But that doesn’t mean conservative overall were vocal about that stuff.Report

  7. Jaybird says:

    In Ezra’s defense, the Constitution was written 100 years ago.Report

  8. Trizzlor says:

    Along the same lines, I shall now petition that future grad school orientations begin with a reading of the multiplication tables.Report

    • Jason Kuznicki in reply to Trizzlor says:

      If you believed that many things being done in graduate school were contrary to the multiplication tables, then the parallel would be perfect. Otherwise, no.Report

      • Mike Schilling in reply to Jason Kuznicki says:

        There’s a lot of stuff done in graduate schools (and elsewhere) that demonstrates basic innumeracy. For instance, I’d like every discussion of fiscal responsibility to start by listing each president together with how much was added to the national debt during his administration.Report

  9. Barry says:

    Timothy: “…; his son expanded Medicare, championed No Child Left Behind, and oversaw a radically unconstitutional government takeover of the banking and automobile industries.”

    Gee, I seem to remember a lot of other stuff he did. Among everything else, please remember that it was only the Supreme Court which blocked the him and every succeeding president from having the royal power of imprisoning, torturing and killing any American citizen at executive whim. And as it is, he bequeathed President Obama vastly increased imperial powers; powers which neither President Obama nor any succeeding president will relinquish.Report

  10. E.C. Gach says:

    “the lack of charity it must take to fault the GOP for failing to read the 3/5ths clause…”

    Timothy throws out the straw man of, “The point being, I guess, that the Constitution “was written by flawed men,” and therefore—can be ignored?”

    No the point isn’t that the Constitution can be ignored. The whole point of the Constitution is that it can’t (shouldn’t) be ignored. And the point about reading 3/5s part is that when included along with all of our other favorite clauses, it should at least cast doubt on the a priori rightness of different parts of the Constitution. So the point wouldn’t be, hey, the Constitution use to include slavery, ergo, let’s ignore the whole thing and pass a mandate. The point is that if one part of the document could such that we now find it deplorable, we need not accept as matter of fact the wisdom of the document (even if it is law and must either be obeyed or amended).

    Rather than read the document as a celebration of every word uttered rather than perhaps have a week long debate as to the merits and meanings of different portions of it (the Constitution that is).Report