Ready For The Shredder?

In its Fourth of July edition (10th anniversary "History" volume), Time Magazine asks the question: "Does it [the Constitution] still matter?" Given that the venerable document is about to disappear into a shredder on the cover, I think I can guess where the Time editors stand. Well, let me answer that question. Yes, and it matters more now than at any other time in American history.

It is typical of Time to pick one of the most significant patriotic holidays of the calendar year to print its leading question. "Leading" because the question assumes the answer, and the shredder is merely the exclamation point that replaces the question mark. This is hardly the first conservative blog to address the Time controversy, and it certainly won't be the last. For that reason, I want to limit my discussion to a couple of issues and a few questions that popped into my mind before I finished reading the entire Time hit piece.

If Time had been honest enough to admit its prejudices in favor of the "living Constitution" view and the necessity of an ever-growing and ever more intrusive federal government, it would have given the shredder a title: "Obama Administration." But it didn't, so I guess we're supposed to assume the passage of time and the realities of modern life are the shredder.

Given the proclivities of Time to state editorial opinion as fact, distort actual facts, present one-sided arguments and set up straw man arguments to knock down, why did it feel compelled to print the article at this particular time? I have a theory. Any time is a good time for bashing the obsolete and confining Constitution, but there is a great debate going on in Congress and in the nation over the President's power to wage war. There is an odd confluence of both right and left opinion holding that Obama has gone way too far with his use of American arms and resources in non-wars in Northern Africa and the Middle East.

Time felt that the President needed defending, and burying the issues of the Constitutional powers of the President and the War Powers Act in a general discussion of the over-restrictiveness of the founding document was the perfect place to do it. The author, managing editor Richard Stengel, showed off his solid intellectual credentials by making his major point about the non-wars in Latin: Inter arma enim silent leges. He translated that phrase as meaning "In time of war, the Constitution is silent."

There are two problems of serious significance with that translation. First, the phrase actually says the law is silent, not the Constitution. Only a living Constitution-type would make that purposeful error. It accomplishes what the "progressives" have wanted for over a century--to make the Constitution just another "law," subject to the will of temporary majorities and power-grabbing administrations. Second, it suggests that the Constitution is silent about the President's war-making powers, which it is most certainly not. Congress declares war, and the President runs it as Commander-in-Chief.

The real argument is not about "silence" but rather whether the President's present independent action using all the trappings of war has crossed the line from "running" to "declaring," from defense to offense. That's an issue all by itself, and I am simply addressing the purposeful conflation of the Constitution and simple law (i.e., the War Powers Act). People of good faith and decent intellect can come down on either side of that issue, and I'm not going to take sides in that debate--at least for now.

Even if I'm wrong about why Time chose this particular occasion to print the article, there are plenty of other reasons that converge--all of them relating to protecting Obama and advancing the cause of trivializing and demeaning the Constitution. Chief among those is Obamacare, currently under threat from multiple state attorneys general and wending its way through federal appellate courts on its way to the United States Supreme Court. The administration and Congress joined hands to mandate the purchase of health insurance, and the constitutionalist arguments against that rely on the lack of any constitutional authority for the federal government to do so.

So again, the living constitutionalists at Time need to demean the document as being unable to keep up with the times. How are we expected to adhere to a document written by a bunch of white men in the 1700s who knew nothing about airplanes, television, computers and DNA? That's a foolish and specious argument. The Founders didn't need to know about airplanes to grant power to the federal government to regulate (not create) interstate commerce. They didn't need to know about TV, computers and DNA to write the First, Fifth and Sixth Amendments. And somehow we have survived rather easily their lack of the gift of prophecy.

Contrary to the newest arguments from the liberal/left legal establishment, the Constitution is a document of "negative liberties." Those not addressed specifically as forbidden or allowed are wide open to development with the times. Horse=canal boat=railroad=trucks=airplanes. Somehow, those changes in the times and advances in technology haven't hampered the ability of individuals, states, and entrepeneurs to develop modern inventions and put them into the stream of commerce without offending the Constitution in any way, or being limited by it. The Constitution is a document limiting federal action in a general framework, not some simple agency agreement for micromanagement of every facet of American life.

Until now, not even "progressive" federal administrations have ever tried successfully to impose a legal requirement on individual citizens to purchase something. But the Obama administration and its leftist followers truly believe that the powers of the federal government are, and ought to be, unlimited. Still, after declaring in multiple legal actions in multiple jurisdictions that the federal government has the power to mandate a purchase, in the most recent and significant litigation, the government argued, for the very first time, that the mandate is not a mandate, but a tax. That pitiful changing of legal horses in the middle of the stream at least has the benefit of Congress's power to tax as opposed the its complete inability to mandate a purchase under the Interstate Commerce Clause.

As for Stengel's argument that "if the Constitution was intended to limit the federal government, it certainly doesn't say so," I say hooey! Even if one has not read and studied the Federalist Papers, it doesn't take more than a cursory reading of the Constitution to find that limitation. It's the Tenth Amendment, which says: "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." Clearly, the federal government has only those powers specifically delegated to it, and it has nothing to do with the modern development of airplanes, computers, TV or DNA.

Times' history is wrong as well, in that it repeated the mantra that the Founders treated slaves as 3/5 of a person. Actually, they did worse. They treated slaves as slaves, leaving the issue to the states in order to get the Constitution passed. Nevertheless, they still treated slaves as "persons" for purposes of humane treatment (as if such a thing were possible in the presence of slavery), but counted slaves as 3/5 of a person solely for the purpose of keeping the Southern states in the newly-reforming Union. Do I need to point out that we fought a bloody Civil War and passed three post-Civil War Amendments to undo this moral lapse in judgment?

There are many, many more egregious and intentional errors in the Times article, and I don't pretend that this post is even close to being exhaustive of the issues. These just happened to be the arguments that struck me most forcefully.