Dr. Brian Melton
Castrating the Constitution: The Real
Stakes in ‘08"Don't interfere with anything
in the Constitution. That must be maintained, for it is the only
safeguard of our liberties.” –
October 31, 2008
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
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
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.