Constitutional Limits … on government? or the people?

In catching up with the news of the past week or so, I came across a column by Dahlia Lithwick, the legal “expert” for the online magazine Slate. Lithwick lays out, in clear terms, precisely the nature of the left’s contempt for the Constitution. In a column on Delaware Senate candidate Christine O’Donnell, Lithwick writes:

O’Donnell explained that “when I go to Washington, DC, the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?

Where to start? Well, I guess I don’t have to figure out where to start, because a number of other right-leaning commentators on the Web have already taken a crack at it. David Bernstein, for example, reminds readers that “Senators swear an oath to uphold the Constitution.” He also points to this passage from Lithwick’s article:

It came to a surreal head when Sen. Chuck Grassley asked Kagan directly whether “the Second Amendment codif[ied] a pre-existing right or was it a right created by the Constitution?”—a dog whistle, I gather, to the “Christian Reconstructionist” argument that the right to bear arms comes from God.

You see the obvious ulterior motive. The Christian Reconstructionists, from what I’ve been able to gather, are a small fringe group of religious radicals who can accurately be described as seeking a theocratic government. So the left wants to say, in effect, that if you’re in favor of individual rights and constitutionalism, then you’re a theocrat! The argument is ridiculous on its face, and Bernstein offers a pretty good rejoinder:

[Y]ou hardly have to be a Christian Reconstructionist to believe in natural rights; the framers did, and none were. Indeed, you don’t even have to believe in God; I have quite a few libertarian acquaintances who believe in natural rights, and none of them are theists.

But Lithwick’s argument is not just her own peculiarity. Jonah Goldberg finds several other examples from mainstream left-leaning writers:

Newsweek‘s Ben Adler was aghast at the clause in the GOP’s Pledge to America that Republicans will provide a “citation of constitutional authority” for every proposed piece of legislation. “We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary,” Adler wrote. “An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.”A progressive blogger, meanwhile, writes in US News & World Report that such talk of requiring constitutionality is “just wacky.”

The most revealing phrase here is Adler’s description of any attempt at legislative self-restraint as “an extraconstitutional attempt to limit the powers of Congress.” Extraconstitutional? But what does he think the Constitution is for, anyway? The whole purpose of the Constitution is precisely to limit the powers of Congress, and of the government as a whole.

What the left does not want to admit is that the Constitution is a charter for a government of limited powers. It is a constitution for a nation founded on the principles of liberty and individual rights. So the whole purpose of our system is for every branch of government to be limited in as many ways as possible, in order to prevent encroachments on the rights of the people.

The essence of the Constitution is to say, to the people: you may do whatever you want, and government can only interfere with you insofar as it is executing of a small number of specifically defined powers. And to the government, it sends the opposite message: you cannot do whatever you want, but are limited in your powers. And in case you have any doubts about what these limits are, we the people have written down in this document what you are allowed to do and what you are not allowed to do.

The left’s view of the Constitution is to turn this on its head. The people are to be extensively regulated in every aspect of their lives—but as to the government, nothing should be interpreted as creating any additional limits on its powers.

Other commentators have already pointed out the concrete meaning of Lithwick’s standard of constitutionality: that the legislature should take as much power as it can grab and wait until the Supreme Court slaps its down, on the theory that it’s not a crime if you don’t get caught. It is a legal theory of lawlessness.

On a deeper level, it is a theory of amorality. The root of limited government is the subordination of might to right, the idea that government coercion may only be used for specifically delimited purposes. This is what I call “the constitutional creed”—the idea that the Constitution serves as a guide to the only appropriate moral justifications for the use of government coercion. Yet the left’s view, expressed by Lithwick and her colleagues in the mainstream media, is that government coercion can be used at whim, with the only limitation being what each branch of government thinks it can get away with in a continual power struggle with the other branches.

There is an old saying that “liberty for the wolves is death for the lambs.” This is a constitutional theory of liberty for the wolves, a grant of unbridled power to those who want to wield force.

With less than a month before the election, we must remember that this is what is at stake: not just health care or the economy or anything so nebulous as “jobs.” What is at stake is whether there are any limits on the power of the state. Lithwick has just given us a reminder of the fact that the left recognizes no such limits in theory, and the past two years have reminded us that the left sees no such limits in practice.—RWT

via TIA Daily October 6, 2010


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