Ezra Klein Lays It On The Line

Ezra Klein recently appeared on a cable news show to discuss the Republican plan to read the Constitution on the floor of the House.  He called it a stunt, and then elaborated:

The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago and what people believe it says differs from person to person and differs depending on what they want to get done.

So the Constitution is confusing because it was written over a hundred years ago (actually it’s over 200 years old, but let’s not let little details like that deter us)?  A fascinating comment  coming from a Jewish intellectual, because the Hebrew Scriptures are a wee bit more than a hundred years old.  Should we disregard the Bible because it was written centuries ago – and in several different languages?  Also, it’s not as though the Constitution was written in old English.  Sure there are some stylistic flourishes that were more common in 18th century America, but one doesn’t need some sort of secret decoder ring to decipher the meaning of the text.  One need not be a PhD in ancient languages to understand the Constitution.

Klein’s comment is quite revealing, though.  This is the main bone of contention that most Progressives have with the Constitution – it’s old.  It was written over two hundred years ago by some dead white men, and therefore those of us living should not bind ourselves to some outdated and “confusing” text.  This is an attitude as old as the Constitution itself, and is implicit in Thomas Jefferson’s advocacy of changing the Constitution every 20 years.

What we see behind this attitude as expressed by Klein is a disdain for permanent things.  It is the core issue that separates progressives and conservatives.  Conservatives seek to preserve the heritage of the Constitution – and not just for the sake of it.  We recognize that if we turn the Constitution into a mutable plaything, ever changing with the times, then we might as well discard the thing and live under the temporary whims of whoever is in charge of the federal government.  This is not to deny that there are indeed differences of interpretation, but that only means we should carefully work to discern the original meaning, not that we should ignore the document altogether.

The last part of the bite is particularly interesting.  Klein states that the Constitution’s meaning differs based on what people want to get done.  But again, the fault here is with certain people – mainly people like Klein – who seek to pervert the Constitution in order to advance their own ideological agenda.  Take the latest blowup over the individual mandate.  No reasonable interpretation of the Constitution could possibly justify such a measure, and yet through a century of progressive jurisprudence we’ve managed to to reach a point where we can pretend that the Constitution is sufficiently vague enough to allow such an overreaching mandate.  Only when we’ve allowed ourselves to succumb to the myth of a vague, living and breathing Constitution can we even countenance the constitutionality of that particular legislation.

The Constitution, as originally written and interpreted, acts as a stumbling block to the federal government enacting swift and sweeping legislation.  It is therefore not surprising that progressives like Klein see it as a deterrent, and wish to mute its relevance and significance.

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  1. We recognize that if we turn the Constitution into a mutable plaything, ever changing with the times, then we might as well discard the thing and live under the temporary whims of whoever is in charge of the federal government.

    I’m not entirely sure, descriptively at least, that this would be much of a change. The Commerce Clause has been used as a license for Congress to regulate almost anything in practice. Requirements for procedural due process in the 14th Amendment somehow prohibit states from regulating abortion. In war, the Constitution has been found to permit massive relocation and detainment of U.S. citizens based on their ethnicity. I’m not saying there isn’t value in a written Constitution; just that there seem to be a long list of harms it does not remedy; and it may be better just to not have a Constitution (a la the UK) than one that serves primarily to provide footnotes to opinions from a third legislative branch. It would at least be more transparent.

    I’m not saying I agree with all of the above, just that I think the benefits of a written constitution seem to be oversold in the U.S. context.

  2. I don’t take joy in defending Ezra Klein but I don’t think he said the Constitution should be disregarded. Replace “Constitution” with “Bible” in the sentence you quoted and it’s still an accurate statement.

    I think conservative support for originalism probably has more to do with the fact that originalism is better suited to accomplish conservative ends. Wouldn’t conservatives support an interpretation that considers fetuses as constitutional persons despite the fact that it’s almost certainly not the original meaning? Likewise, liberals love originalism if it means placing great emphasis on and strict adherence to the words “a well regulated militia.”

  3. RR, speaking for myself, I would no more advocate twisting the Constitution for a constitutionally dubious policy that I happen to prefer than for one that I oppose. Tastes may vary.

    John, I agree with you up to a point. What you’re highlighting are the negative consequences of treating the Constitution as something that can be amended by judicial fiat or by temporary legislative whims. That being said, even Progressives largely maintain the fiction (currently) that they are attempting to live under the Constitution, at least as they interpret it. By and large Americans still have enough respect and reverence for the Constitution that we try to uphold its meanings. I don’t think we’ve reached the point where we’ve rendered it a blank paper by construction. Yet.

  4. When RR writes: “I think conservative support for originalism probably has more to do with the fact that originalism is better suited to accomplish conservative ends”.

    he puts the cart before the horse. Defense of the Constitution comes first; it’s what makes a conservative conservative.

    What is curious is that so many Jews have become “liberal”. If ever there was a group that should be conservative, it is Jews. It is a subject discussed by Norman Podhoretz in his book on the topic. I suspect that it is a religious failure. And perhaps an attempt at assimilation.

  5. I think conservative support for originalism probably has more to do with the fact that originalism is better suited to accomplish conservative ends.

    The way to test this hypothesis would be to look for cases where adhering to originalism would impede conservative ends, and see how people react. For example, suppose that you had a law vulnerable to the same sorts of Commerce Clause arguments as the individual mandate, except that instead of doing something conservatives didn’t like, the law did something conservatives generally support (say, prohibiting the consumption of marijuana for medical purposes, or dispensing lethal drugs to terminally ill patients).

  6. Gabriel: A Jewish friend told me a few years ago that when you look at an Orthodox Jew, you’re looking at a GOP voter. (The Orthodox are usually pro-life, as well.) However, they are a small minority within a small minority. Most American Jews are Reform Jews, or entirely non-religious, and for those Jews, I suspect the Democratic Party and liberal causes take the place in their hearts and minds that the Torah once occupied in the hearts and minds of their ancestors.

    They haven’t “become” liberal – they tended to be liberal (and in some cases, downright radical) when they got off the boats at Ellis Island. Many of them were fleeing the pogroms in Czarist Russia. And the Democrat Party machines in the big cities reached out to poor immigrants (both Jewish and Catholic ones) in a way that the often nativist GOP did not. I certainly grew up thinking the GOP was the party of rich WASP’s – people who would despise me and my blue collar Catholic family.

    The difference is that as the Democrats became more radicalized after 1968 and Catholics descended from European immigrants became more professional, suburbanized and prosperous, many of us moved away from the party of our grandparents. The Jews in large part, did not, although they have certainly done well in America. Like I said, I think it’s partly because they now invest liberalism with the same fervor they once brought to their faith.

    Well, as Moses noted a long time ago, they are a stiff-necked people – but they’re hardly alone on that score. I’ve noticed the same phenomenon among lapsed liberal Catholics, specifically Irish Catholics, such as the recently deceased radical lesbian feminist Mary Daly, for instance. In the ’70’s at Marquette, I knew many milder versions of Mary Daly. They were so vehement. If they had been born 30 years earlier they might have been the stereotypically angry nuns I’ve heard about my whole life, but never actually met – instead that anger was poured into radical feminism and hatred of the Church and men. And *sigh* they got along just fine at MU, just as Daly flourished at another Jesuit university.


  7. This claim that Klein makes about “old” is common among radicals, liberals, and progressives. They believe that their ideas are the wave of the future, and anything that have come before them is out of date. So, unless established institutions embrace the new wisdom, they have to be denounced, slandered, libeled, to destroy their crediability, and to create faith in the brave new word that the Kleins wish us to have.

  8. The Constitution, like any other text, is underdetermined as to its “meaning” if you choose to rely solely on the text itself. This is because you can never approach the text from the position of “nowhere,” as it were. So it’s a mistake to think that textual “originalism”, if implemented by every Justice, would result in agreement. (Note that this claim is *not* the claim that “anything goes” in interpretation.) This is just a hermeneutic point.

    Now you *can* aim for intentional originalism, in which you attempt to discern the propositional intent of the Framers behind the written document. But in order to do this you must rely on extra-textual material: you must do careful intellectual history, philology, etc. And even here you can only attain to a “best bet” hypothesis. There will still be disagreements, etc.

    What I am interested in, though, is the argument that seeking the original intent behind the clauses of the Constitution should be the aim for Justices on the bench. Why should this be the case? (I’m not saying that I hold to the “living Constitution” view myself–I’m a skeptic on this issue.) Also, it does seem odd to me that we could discern how the Framers wished a particular clause of the Constitution to be interpreted in situations that they could not have anticipated themselves. Here their “intent” itself seems to be underdetermined. (Usually considerations of this kind pull originalist-mided readers back to the “text itself”–but that is a non-starter, for reasons already noted.)

    In other words, I’m not claiming that we can’t get a good handle on how the Framer’s intended the COnstitution to function given the commercial, political, and social realities of the late 18th century. I’m skeptical of the view that we could discern and then apply this same intention to a radically different context.

  9. “So it’s a mistake to think that textual “originalism”, if implemented by every Justice, would result in agreement.”

    No, but it would end such follies as reading a “right” to abortion into the Constitution, or that the Constitution, which speaks of the death penalty, requires us to ban the death penalty. Judges capable of such feats of sophistry defeat the purpose of a written constitution and use the constitution as a clumsy disguise for implementing their political agendas. Federal courts have the power of judicial review solely because of their role in interpreting the Constitution. When interpretation becomes “the Constitution is whatever a majority of us say it is, the written text be damned” the courts ultimately undermine their authority because of the intellectually dishonest methods they are using to impose a rule of judges on a free people.

  10. Don Surber has a great post on this topic. (By the way, you’ll notice that Ryan’s comment here is repeated word for word there. You’d almost think that Ryan was going from blog to blog in an attempt to defend Klein and anyone who criticized him).

    Also, I apologize to WJ for not responding to his very good question, though Don and Joe have in part already. Who would have thought that being on vacation would have given me less time to blog. With five minutes to go before I depart for Church and another day of activities, I’ll have to be brief, but in short I don’t think the Constitution is quite as complicated or difficult to discern as is often made out to be. I’m not sure if it was Surber or one his commenters who made this point, but the Constitution has been made more difficult because of the way Judges have interpreted it, not because of its original design.

    The Constitution was a very general document laying out the framework of how our federal government was to operate. It wasn’t meant to be a detailed account of every power delegated to the government because the Framers could not foresee every political development. And it is general because it was intended to last, not be a temporary governing document amended every few years as Jefferson wanted. In fact, that’s why Jefferson’s “strict construction” method of interpreting the Constitution doesn’t work, but I don’t want to sidetrack us even more.

    Long story short, I think what we lack when we look at the Constitution nowadays is common sense. At the risk of simplifying too much, it might be best if we simply resorted to common sense when trying to interpret the Constitution in light of modern policy developments rather than reading into it all sorts of penumbras and emanations, and relying on some law school professor’s 100-page law review article full of abstractions and pet theories.

  11. I just wrote out a rather detailed comment that for some reason got eaten. I don’t have time to repeat it, so for now I’ll just link to this Don Surber post and note also some of the comments there that address some of the comments made here. And Ryan, nice of you to go from blog to blog defending Ezra. How sweet.

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