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  D e s e r t   E x p o s u r e  December 2010


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Taking a Constitutional

Who really wants to turn the clock back to 1789?

Now that we're sending Steve Pearce back to Congress, where his party will hold the majority in the House, we can look forward to a return to good, old-fashioned Constitutional principles like well, like what exactly?

On his campaign website, once-and-future Representative Pearce spelled out his take on the currently fashionable veneration of the Constitution:

"The Constitution is the single most important document in our civil lives. Too often recently, we have strayed from its guiding principles. Politicians in Washington have gotten comfortable bending and twisting the Constitution to advance their political agendas. We need to return to the concepts and wisdom that our forefathers bestowed upon us more than 200 years ago. The Constitution is our guardian as it:

" protects our freedom of speech, including against radical leftists who demand a so-called political correct nation

" protects our right to prayer and against the government halting expressions of faith

" protects our right to bear arms

" protects our right to property, despite what the Supreme Court said in its wrongheaded Kelo decision."

We don't think "political correctness" was high on the Founding Fathers' list of concerns, and it's interesting that Pearce mentioned only "radical leftists" (not, say, right-wing extremists whose freedom of expression has sometimes gone overboard into bomb-making). Similarly, he somehow failed to note that the Bill of Rights not only protects our right to exercise religion but also prohibits the imposition of religion; indeed, that part comes first. But let's not nitpick.

The point is, the Constitution is all the rage these days, with some activists even staging readings of what (let's be honest) can at points be a pretty dull text. We've heard lots of talk about getting back to the basics as expressed in what Abraham Lincoln called the source of "the political religion of the nation." Some 2010 candidates referred to the Constitution in even more explicitly religious terms, calling it a "covenant" based on "divine principles." (Never mind that the Constitution never once mentions God and that many of the Founding Fathers held freewheeling religious views that would have gotten them pounded in TV campaign commercials if they were in public life today.)

It would be disrespectful, we suppose, to point out that the "Bible" of America's democracy originally left out women and counted black Americans as only three-fifths of a person. (The non-secular Bible, after all, has a lot of stuff about stoning and enslaving people that we mostly gloss over today.) What's made the Constitution so remarkable, after all, is that it has evolved — getting rid of slavery, for example, and letting women vote — so that this 1789 document still functions in the 21st century.



It's some of that evolving that Constitutional "originalists" want to turn back the clock on. For starters, some would like to jettison all or parts of several important amendments. The first sentence of the 14th Amendment — "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." — has caused concern over the offspring of illegal immigrants and so-called "anchor babies." Bizarrely, some purported populists want to repeal the 17th Amendment's direct election of US senators, returning the process to the horsetrading of state legislatures. (The mind reels at how that would play out in New Mexico's Roundhouse.) We've even heard fulminations about the federal income tax being unconstitutional. Once those folks woke up to the existence of the 16th Amendment, which explicitly gives Congress the "power to lay and collect taxes on incomes," they switched to advocating its repeal.

Beyond tweaking the text (which, given the reverence for the Constitution, seems a bit like voting, say, the Book of Judges out of the Bible), "originalists" dream of rolling back provisions of the New Deal and Great Society that they believe overstep the bounds set back in 1789. Cass Sunstein, a former University of Chicago legal scholar, has warned that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration, and possibly the National Labor Relations Board would be unconstitutional" under this interpretation of the Constitution. Social Security, the Securities and Exchange Commission, the Federal Reserve and minimum-wage laws could all be jeopardized.

The right to privacy, never set out in the Constitution in so many words, would hang by a thread. Imagine going back to the days when states could outlaw birth-control pills or condoms — exactly what the Supreme Court overturned in its landmark 1965 Griswold v. Connecticut ruling.

"States' rights," dismissed in the 1960s as code words for segregation, could return with a vengeance. Most who want to turn the clock back to the good old days of James Madison cite the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That means, it's argued, that much of the machinery of today's federal government is unconstitutional — what Steve Pearce might call "bending and twisting the Constitution to advance political agendas."

This argument would, however, surprise Madison himself. The "Father of the Constitution" rejected a motion to add the word "expressly" before "delegated" in the 10th Amendment. Madison wisely reasoned, "There must necessarily be admitted powers by implication."



It's puzzling why the Constitution is suddenly so in vogue — or so apparently in need of defending. Why, for example, did Steve Pearce not rise up when we "strayed from its guiding principles" so dramatically in the USA Patriot Act? Instead, Pearce voted for roving wiretaps, "sneak and peek" warrants and provisions that library groups warned could be used to demand the reading records of patrons.

Much of the current fealty to the Constitution turns out to be selective. Why isn't Pearce a card-carrying member of the American Civil Liberties Union? Some of the more libertarian-leaning devotees of the Constitution, it's true, have followed their reasoning to consistent if controversial conclusions: Ron Paul, the GOP presidential candidate and father of Kentucky's next US Senator, Rand Paul, has called for decriminalizing marijuana at the federal level and letting states legalize pot. When in Congress, the elder Paul also voted against the Patriot Act.

Too many politicians, however, have cynically hijacked the Constitutional fervor to gull sincerely patriotic ordinary citizens into supporting a corporate agenda that has nothing to do with principles espoused by the Founders. Among the endorsements touted by Pearce's campaign was that of "The 1789 Project." Sure sounds like a Constitution-loving bunch, but it turns out to be yet another front for former House Majority Leader and current lobbyist Dick Armey's FreedomWorks. Despite the 1789 Project's website call to sign a pledge to support the Constitution and "candidates and leaders who uphold its original intent," it's really a shill for corporate America.



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