Monday, January 14, 2013

The Democratic Party's Constitutional Ambivalence

The Constitution is the guide which I never will abandon. July 28, 1795.

From the standpoint of his above quote, George Washington would not be happy with today’s Democratic Party. It’s hardly difficult to understand why. Following his revolutionary victory, in order to establish an American government checked by balanced of power, Washington turned down the opportunity for absolute personal power. Washington understood that in order for American democracy to survive the ages, the various mechanisms of our government would have to operate in respectful equilibrium. In response, the founding fathers gave us the Constitution. 

Unfortunately, today’s Democratic Party has become the standard bearer of Constitutional absurdity.

First, let's look at the Judicial component.

Taking Democrats at their word, you’d believe that their judicial philosophy has an overarching, unifying objective- the pursuit of core public interests and the protection of individual freedom. But this isn’t the case. Instead, for many Democrats, Constitutional interpretation has become a fundamentally subjective venture. Just check the record.

This Supreme Court session, considering two relevant cases, the Justices will decide on a major Democratic priority- 1) whether gay couples have a Constitutional right to marriage and/or 2) whether they have a right to the same benefits that are available to heterosexual couples. Generally, Democrats believe that the government has no right to grant or deny rights on the basis of moral judgments concerning intimate, adult relationships. Recognizing the Constitutional right to equal protection under law, I support this understanding (at least as it relates to the second case).  However, Democrats are far from consistent when offering their legal support for individual freedom. For one example, consider gun rights. As decided by the Supreme Court in Heller (2008) and McDonald (2010), the Second Amendment grants an incorporated right to all Americans, to possess handguns in their homes. Unfortunately, in their present pursuit of bans on all semi-automatic weapons (including handguns), imposing stringent magazine capacity limits (ten rounds or less) and requiring prospective handgun purchasers to submit fingerprints, many Democrats are actively challenging established Constitutional rights. While many conservatives (myself included) recognize that gun rights are not absolute, the boundaries of the law are clear: American citizens have the right to possess (at least some) semi-automatic weapons, without suffering excessive government obstruction.

It isn't just guns though. Consider the Democratic Party position on government power re- private conduct. When, in 2012, the Supreme Court upheld the Federal Government’s right to impose taxes on individuals who fail to buy health insurance, Democrats were overjoyed. Yet, as exemplified by their infinite outrage over the 2010 Citizens United ruling, Democrats also apparently believe that the government has the right to gag political speech. Under this  warped Constitutional theory, government can seemingly compel both consumer purchases and political silence

This is a legal framework without credibility.
 Ultimately, there is no Constitutional logic to a judicial interpretation which resides upon inconsistent, subjective whims of the moment. This is anathema to the Constitution’s existential purpose. The Constitution doesn’t exist as a kind of political ‘phone a friend’- a tool for difficult situations, but one to be ignored when so desired. It requires lasting respect.

Sadly, it’s not simply case law where Democrats are ridiculing the Constitution. 
Consider the on-going interactions between the Executive and Legislative branches of government. Before he entered the Oval Office, Senator Obama railed against President Bush for putting ‘more and more power in the executive branch’. However, since then, he's had a change of mind. Whether concerning Libya, executive privilege, energy policy, immigration, or now guns, on various critical issues, this President has no qualms ignoring congressional authority when he so desires. Not a great record for a former Constitutional law professor.

In the context of their previous complaints about Bush's executive, you might have expected at least a little hesitation from congressional Democrats over Obama’s executive reach. Conversely, congressional Democrats have become subservient allies to Obama’s expansive executive. A good example? The evolving battle over the March debt limit. Faced with congressional Republicans who understandably want entitlement reform in return for debt limit increases (without reform, we will continue our proud, national dive into the fiscal abyss), Democrats have offered a unique three-part alternative to honest negotiation.

 First, to demagogue against Republicans for not capitulating to the President’s demands. This first element is particularly bold, considering that former House Speaker Pelosi felt entitled to her own abysmal (really worth checking this link!) foreign policy during the Bush Presidency.

Finally, if all else fails, ignore the Congress and its Constitutionally granted power of the purse.

Sidestepping Congress, what do Democrats suggest in return? Proposals, which are so utterly ludicrous, they appear to be the product of Monty Python movies. Suggestions of $1 trillion coins and intoxicated readings of the 14th Amendment are not acts of proud Democratic legislators; they are the product of a delusional deference to executive power. This is the obsessive pursuit of power as an end in itself.

Liberals like to claim that conservatives are to blame for our national political dysfunction and I’ll admit, we have to share some blame. However, in substituting cartoonish surrealism for the Constitution, Democrats are attacking the basic essence of American democracy.

Our country faces profound national challenges. It's understandable that difficult political dynamics will burden our efforts to find solutions. However, the Constitution should never be treated as a casual partisan tool. Over hundreds of years, our balanced system of government has guided us through the pain of civil and foreign wars, the misery of economic depression and the strife of great social upheaval. While Democrats played a crucial part in this national journey, the journey isn’t yet over. We still need the Constitution and it continues to deserve the Democratic Party's respect.


  1. Pertaining to the Constitution, You assume that there is an "original" intent to work off of. But the Founding Fathers weren't an homogenous blog of ideas were they.

    Democrats don't want to fundamentally change the Constitution. But the Founders left some questions unanswered, which is why they intended for the Constitution to be a "living document"

    Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment...But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
    Thomas Jefferson

    Those are where the disagreements lie. No doubt these disagreement have become political over the years.

    Most of the things you highlighted can be seen on both sides of the aisle. I believe even you pointed out the empty gestures from House Republicans

    While I share the view of most Republicans that Obamacare is a bad law, since I believe it will raise rather than reduce America's healthcare cost-curve, I also believe that in seeking to repeal the law without proposing a positive replacement, the House GOP is engaging in gross partisan gamesmanship.

    Judicial inconsistency can be seen from Republicans. In Gonzales v. Raich (2005) and United States v Lopez (1995) Justice Scalia arbitrarily changed his views on the Commerce Clause the second marijuana got involved.

    While I commend your view that both parties need to share the blame, this post seems to point the finger in a single direction.

  2. Thanks for your great comment. I have to say, I think that Jefferson was talking about the need for constitutional amendment more than he was time sensitive re-interpretation, but you raise an interesting point. My impetus in writing the piece was the false moral superiority that Democrats have claimed in recent years. I accept that the GOP has been far from a saint on the same issues. Thanks for the comment.

    1. You might find this bit from Jefferson quite interesting

      Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.

      More from this link

      I concur with your view on the Democratic party. I just think the problem plagues Washington in general, something we seem to agree on. As a liberal I can only look in disgust.

    2. Interesting quote! Thanks again for your engagement.