Dr. Brian Melton

Castrating the Constitution:
The Real Stakes in ‘08
October 31, 2008

“Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” – Abraham Lincoln

Americans once went to war and risked everything over constitutional principles. They rebelled against the British Empire and declared their independence in 1776 because the British government would not honor the very rights granted to them in England's own constitution. Sadly, America is now poised to explicitly demote the Constitution they wrote to protect themselves into a document that functions almost exactly as its flawed predecessor did. In their criticism of and increasing disregard for the Constitution, Barack Obama and the modern Democratic Party are only formalizing a state of affairs that has existed in practical terms for almost 100 years. In short, America is preparing to admit openly that it has abandoned the very ideals behind Constitution itself. If we cross this proverbial Rubicon, we won’t return easily.

The trouble the Americans had with the British constitution was that it was unwritten. For many Americans, this is a very strange idea. Aren't all constitutions supposed to be written down? The simple answer is, no. A constitution is nothing more than a formal way of doing government. This can be contained in a single document, as the United States Constitution is, or it can be unwritten and based on tradition like the British constitution was in 1776. The problem with an unwritten constitution is that it can be changed very easily. The only thing that was necessary, in practical terms, to revoke a right or create a new one in the British system was to do it and get away with it. This is what the British were attempting to do with the Americans’ right to "no taxation without representation." If they could tax the Americans and the Americans did nothing to stop them, the British would have practically revoked the Americans’ rights and created a new approach.

Obviously, the Americans had something to say about that, and they expressed themselves so successfully that they won their independence. When the time came to craft their own government (after the little sidelight known as the Articles of Confederation), one of the very first and most important checks and balances they built in-to their governing document was to make it a written constitution. This meant the American government and the rights it recognized couldn't change with just "every wind of doctrine."

Still, the Framers knew that the document would need amending and improving over time, as new situations and problems presented themselves. So they included a mechanism that would allow future generations to fix any problems they might encounter. But the amendment process was intended to be difficult and long, thereby ensuring that only major and necessary changes could be made. Americans have since used this process to address and eliminate some of the significant problems that the Founders did not, including ending slavery and granting the right to vote to African-Americans and women.

Throughout all of this, the first and last defense of the American Constitution has been the fact that it is a written document. The written word on a page doesn't change on its own, and so in theory American rights would remain stable.

From the very beginning, however, political figures chafed under the restrictions placed upon them by the Constitution. From Alexander Hamilton to Abraham Lincoln, they pushed the boundaries with varying degrees of success, but they still believed in the basic point of a written constitution. It wasn't until the advent of the 20th century that the Constitution began to be ignored in a really grand way. Crafty politicians and justices, such as Oliver Wendell Holmes, Jr., Woodrow Wilson, FDR, etc., soon realized that while the words on the page could not be changed, their interpretations could. With this discovery and its subsequent enforcement through the doctrines of Sociological Jurisprudence, Legal “Realism,” and their descendants, the Constitution essentially ceased to be treated as an unwritten document. As Charles Evans Hughes said, "The Constitution is what the judges say it is."

Of course, if the Constitution doesn't inherently mean anything—only what the justices say it means—it can mean everything. And so the term "unconstitutional" has since virtually lost its significance. A quick look back at any number of truly unconstitutional acts by the US government in the 20th century should suffice to convince all but the most naïve: the Federal Reserve act, the New Deal, the Great Society and the welfare state, the creation of the modern separation of church and state mythology, all that entails an activist Supreme Court, various abridgments of the freedom of speech, attempts to socialize education, healthcare, and the economy, significant issues with gun control, abridge parental rights, etc., etc., etc.

My point is simply this: when Obama calls the Constitution “flawed,” thereby implying that there are portions of it we should not feel bound by, he is simply giving voice to a rotten state of affairs Americans have tolerated for far too long. If our own judges, from the lowest court to the highest, no longer believe that the Constitution has any inherent meaning of its own, then it is already a dead document, at least as a check and balance. We should not be surprised that Obama and the Democrats have little if any use for it.

If Obama and the Democrats win this election, they will be able to set the standard of constitutional interpretation for the foreseeable future. Americans must understand this with crystal clarity; there will be no easy way of going back. Even if, for the sake of argument, this generation of politicians has nothing but the best of intentions, they will clear the way for a subsequent one that won’t share those compunctions.

As such, I would argue that the stakes in this election are far greater than the redistribution of wealth. The battle for the American Constitution and the freedoms that it protects must take place on a much deeper level than the rhetoric we've seen thus far this fall, and, unfortunately, failure is indeed an option.