Tuesday, July 5, 2011

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.


Tennessee Jed said...

A very, very nice piece this morning, Hawk. First, let me say that frowing up as a teen, and through nearly 30 years of adulthood, I subscribed to Time. Most read either Time or Newsweek. Much like network broadcast news, even though you knew most of the writers were Democrats, they at least tried to present the patina of objectivity. While Newsweek got a lot of the ink for going the MSNBC route of "coming out of the partisan closet" in my view, Time was every bit as bad, and I dropped them right after 9/11.

To the body of their article, and your post, although this has long been the "debate" between left and right which plays out every time the executive branch appoints members of the federal judiciary, I think the fight has gotten more desperate for liberals. With Obama, they thought they had a true champion (not like the triangulating Clinton.) They came closer than at any time in memory to becoming fillibuster proof, and finally got "the big one" passed, even in flawed form (the "big one" referring to healthcare reform, that issue that would give them total and irrevocable control over the populace.)

Somehow, it all seems to be slipping away for them. As Max Sawicky said in American Prospect in 2004, the well founded expansion of the welfare state is the mission of the Democratic party, or at least should be." With thinking like that, is it any wonder they want to do away with the constitution?

Unknown said...

Very good indeed. As you say Obama needs all the defending he can get and any time is good for Constitution bashing to the left. I wonder if Glenn Beck's new release "The Original Argument", on the Federalist Papers may have anything to do with this "Timely" issue.

StanH said...

“The Constitution/Bill of Rights!” A binding contract from the Founders to the future. Our challenge is to leave it as we found it, so our children and grandchildren can grow and prosper in the greatest country since the dawning of civilization, the USA! We must remain vigilant, and this Time article further illustrates the MSM is the enemy of real America. They fail miserably in one of their Constitutionally mandated missions as overseer of government. The press is nothing more than a propaganda wing of the democrat party, whose lies and prevarications are legion, if one only checks their stated “facts,” and in my humble opinion, this must be changed…how is the question.

T-Rav said...

I can't wait for Time to go the way of Newsweek, which is supposed to be scaling back its summer issues to only a few. The less influence these rags have over the population, the better. This is one of the worst hack jobs on history and constitutional law I've seen in a long time.

Writer X said...

I didn't know that TIME was still around. This proves that they'll say anything to sell a few magazines.

Could you imagine if Bush was waging war against Libya and forcing people to buy something they didn't want? Their headlines would be a lot different and most people understand that. Those that don't subscribe to TIME.

Excellent post, LawHawk!

Unknown said...

Tennessee: It's always amusing to think how times change. When I was growing up, I hated Time because it was so right-wing (ditto for the Los Angeles Times, and the San Francisco Chronicle, the local metropolitan newspapers of my youth). Those were the days of Henry Luce, the Otis family and the Chandlers. The transformation from right to left almost exactly parallels my trip from the left to the right. I wrote my "Subject A" exam at Berkeley on the topic of editorializing on the news pages, pointing out the LA Times as a "right-wing rag." I could write exactly the same essay today, substituting "left wing" for "right wing."

Though I would still disagree with Luce on many issues (isolationism, for one), his prediction of the advance of the Democratic welfare state was right on the money. He was also correct about rejecting Marxist "inevitability" theory. The 2012 election may be the Gettysburg which determines whether we can turn back the enemy of statism, socialism, and government by bureaucracy.

And as a final note, back in the 60s, national TV personality Jack Paar referred to Newsweek as "Weaknews."

Unknown said...

Scott: I don't follow Beck closely enough to know if that is the case. But I'm guessing he certainly touches on the issue. As I said in the article, I might be wrong about the reason(s) behind the July 4 publication of the Constitution bash, and I know that concurrence is not causation. Nevertheless, I have yet to see any other theory that holds more water concerning the timing of the issue.

Unknown said...

Stan: There is a long history of the American press having strong political leanings toward one party or the other. But what makes today's MSM so insidious is that it is almost entirely in the Democratic camp, and yet they claim that they are completely neutral. A century ago, people bought newspapers based in part on which party they supported. It wasn't a big secret, and many proudly announced which way they leaned. Today, we have "journalists" instead of real reporters, mixing editorial opinion into the news, thereby eliminating any pretense of a separation between the editorial offices and the news offices.

And just as an historical note, as the newspapers and news magazines slowly switched from personal and family ownership to corporations and foundations, they all began to drift left. Now what's this garbage about "evil corporations" belonging to the Republicans?

Unknown said...

T-Rav: At least we have the satisfaction of watching as the readership of Time and Newsweek drop like a stone, along with their influence on the general public. It's poetic justice. We know what to expect from The New Republic, Nation, The Weekly Standard, Commentary, National Review, et al because they are honest enough to call themselves opinion journals. Time and Newsweek pretend to be news magazines, and that's dishonest. At last, the public is seeing through their pretense.

Unknown said...

WriterX: Thanks. I have to admit that I've given up making comparisons between how the press treats Obama versus how they treated (or would treat) Bush in the same circumstances. It has become a simple given that the treatment would be diametrically opposite.

This trashing of the Constitution was a bit more subtle than usual, since the MSM are united in proclaiming that Obama is some sort of constitutional scholar whle Bush was a constitutional ignoramus. Neither is true.

USS Ben USN (Ret) said...

Nice fisking of Time, LawHawk!

Leave it to Time to commit cluelesside.
Between them, Newsweak, the NY Slimes, etc, it's a race to the bottom.

As you said, LawHawk, it's one thing for them to be honest about their intentions, but like 99.9% of proregressives they cannot help but lie, omit, obfuscate, spin, and revel in their most blatant hypocrisy.

It takes people living a lie to believe the Constitution is a "living" (another misnomer from the left) document that's designed to be strictly relative according to mob rule.

I'm quite certain that the majority of Americans will not mourn the inevitable passing of Time. It will be a Timely demise I shall celebrate. :^)

The Constution however, will be here long after Time fades into the ashheap of history where it belongs.

Unknown said...

Here's what the grossly underrated Calvin Coolidge had to say about the "relevance" of the Constitution and the wrong-headedness of progressivism:

"It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers."

I have one word to describe that statement: "prescient." Is there anything he said that could not be brought forward to 2011 with even greater force? Time Magazine should have read that statement before belching out its ignorant opinions.

Unknown said...

USSBen: Well said all the way around. Our big chance to bring the Constitution back from exile is coming up. After we've ripped all our potential candidates to pieces over details, one thing is paramount in my mind. "Does this candidate enthusiastically support the foundational nature of the Constitution, does he or she truly understand what the Founders meant by 'negative' liberties, and is he or she capable of defending the Constitution on all fronts?" Anything else is mere surplusage.

USS Ben USN (Ret) said...

Thanks LawHawk!

I love Calvin Coolidge! You're not kidding about him being underrated!
Here's a link to a great speech he gave in 1926.
Inspiration Of The Declaration Of Independence

Perhaps more relevant today than when he gave it, but always relevant, just like the Declaration and the Constitution.

The left likes to believe that Obama is a Constitutional scholar (the Marxist constition I can believe) but President Coolidge clearly understood the Constitution, and he didn't have to keep asking the American people to "let him be clear."

Unknown said...

USSBen: I think that even removing the MSM progressive bias, Coolidge was unfortunately stuck in his presidency between a crook and a closet progressive. He's also stuck with the Roaring 20s, which he had nothing to do with. His lack of proper treatment is largely attributable to being in the wrong place at the wrong time, historically-speaking.

Today, of course, we have to add the media bias which prefers thousands of meaningless words spoken by a slick used-car salesman posing as a constitutional scholar to the terse, clear, short and meaningful words spoken by a true student of the Constitution.

AndrewPrice said...

The Constitution you say? Never heard of it. Isn't it that document that is supposed to keep conservatives from using government power against liberals but doesn't stop liberals from doing anything they want?

Unknown said...

Andrew: Ah, you have heard of it. LOL

patti said...

law: great piece. while Time used to be a respected source of info, it's now a shill rag for barry. it's gone the way of the msm: it can't be trusted, therefore it's only use is either a) birdcage liner or b) fire-starter.

their nakedness is showing...

Unknown said...

Patti: I couldn't agree more. It's very interesting to see how the readership of news magazines and traditional newspapers is declining precipitously, but they can't seem to figure out why. Must be some right-wing conspiracy. So they get even more liberal, mix up their editorial and news departments, lose more readers, and continue the downward spiral. Without a two or three trillion dollar stimulus from the Democrats, they'll be entirely out of business before the end of the decade. And they still won't understand what happened.

fr8jock said...

Great post.

When I saw this article, my first thought was that those who believe the constitution is obsolete are always those who do not want to live within the restrictions it places on government, and therefore should be watched carefully.

If absolutely nothing else, these people should bear in mind that it is always possible that they will be out of power someday, and that sweeping powers may belong to their opponents.....Unless, of course they make opposition illegal in the meantime....Hmmm...

Unknown said...

fr8jock: First, welcome to our comment stream. Glad to have you aboard.

It is truly amazing how many people simply can't comprehend that the more government makes decisions, the fewer personal decisions the individual citizen can make. That is why the Founders were so prescient in setting out negative liberties rather than a laundry list of what the government can do (to be expanded as the bureaucrats and politicians see fit). Creativity and genuine inventiveness thrived under limited government, and now we are seeing the destruction of incentive by an all-intrusive government. In a true "free" government, the freedom to try and fail is almost as important as the freedom to try and succeed. The government gets in the way of both.

Post a Comment