NATIONAL REVIEW ONLINE
August 1, 2014 12:00 AM
Tampering Tinkerers of Capitol Hill
The Democrats’ proposed constitutional amendments reek of hypocrisy.
By Jonah Goldberg
Let us now praise Democratic hypocrisy.
Throughout my life, various Republicans have suggested amending the Constitution in one way or another. A few years ago, they suggested revising the 14th Amendment to get rid of automatic birthright citizenship. Before that, some proposed amending the Constitution to lock in the traditional definition of marriage. Ronald Reagan wanted a presidential line-item veto added to the Constitution.
On nearly every occasion, Democrats opposed such efforts, not just on the merits but on the puffed-up principle that we mustn’t “tinker” or “tamper” with the genius of the Founding Fathers’ constitutional design.
“We should not mess with the Constitution. We should not tamper with the Constitution,” Senator Charles Schumer (D., N.Y.) declared when opposing a victims’-rights amendment in 2000.
Representative Raúl Grijalva (D., Ariz.) cried in protest of the notion that birthright citizenship should be revoked: “I think it’s horribly dangerous to open up the Constitution, to tamper with the Constitution.”
“I respect the wisdom of the Founders to uphold the Constitution, which has served this nation so well for the last 223 years,” Senator Patrick Leahy (D., Vt.) proclaimed from the saddle of his very high horse in 2011, in opposition to a balanced-budget-amendment proposal. “Let us not be so vain to think we know better than the Founders what the Constitution should prescribe.”
Senator Dale Bumpers of Arkansas opposed a balanced-budget amendment in the 1990s:
As much respect as I have for a number of members of the Senate — and we have some very bright people in the Senate — there isn’t anybody here, really, that I want tinkering with what James Madison, John Adams, Alexander Hamilton, and all of the rest of those brilliant people, the most important assemblage of brilliant minds under one roof in the history of the world, did.
As a conservative, I’d be the last person to deny that these men had a point. Mucking about with the Constitution is heady stuff, and we shouldn’t consider doing so lightly.
But the real reason these Democrats opposed “tampering” with the Constitution wasn’t reverence for the genius of the founders. What they really opposed was tampering with a status quo they benefited from. These same Democrats are the first to applaud when the Supreme Court manufactures new rights from the constitutional emanations of penumbras not found anywhere in the text. They are fully vested members of the Cult of the Living Constitution.
President Obama, Al Gore, Hillary Clinton, and countless other liberals have pledged undying fealty to the idea that the Constitution needs to be reinterpreted with the changing times. Obama insists that the most important qualification for a Supreme Court justice isn’t legal reasoning or judicial experience, but “the depth and breadth of one’s empathy. . . . The critical ingredient is supplied by what is in the judge’s heart.”
This saccharine tommyrot is the exact opposite of reverence for the Constitution; it is reverence for liberal judicial activism.
Now Democrats have changed their mind. Earlier this month the Democrat-controlled Senate Judiciary Committee approved on a party-line basis a constitutional amendment to undo the Supreme Court’s decision in Citizens United v. Federal Election Commission. House Democrats have introduced a similar amendment.
On the merits, it’s a horrible idea, motivated in part by a desire to bleat about the evils of the Koch brothers in Democratic fundraising pitches.
The stated intent is to allow the government to regulate how much money people and corporations can donate to political campaigns. But such regulations can quickly step on the First Amendment. Recall that the Citizens United case made it to the Supreme Court because under the old campaign-finance system, an independently produced (albeit fiercely partisan) documentary about Hillary Clinton was dubbed an in-kind donation to the Republicans because it amounted to a stealth ad. The Obama administration argued before the court that campaign-finance laws could even be used to ban books “if the book contained the functional equivalent of express advocacy.”
But even though I think the proposed amendments are ill-conceived, I am delighted that the Democrats have taken this route. This is exactly how we’re supposed to change the meaning of the Constitution. If the Constitution forbids X but the American people decide — through extensive political debate — that X should be permitted, then the only legitimate course of action is to change the Constitution to allow X. Stacking the courts with priests of the Living Constitution cult who will simply rewrite the Constitution by fiat is lawless, undemocratic, and anti-constitutional.
The Democrats’ hypocrisy amounts to real progress.