The Constitutional Moment

A “constitutional moment” is how the passage our country is going through was, a little more than a year ago, described by the editor of the Sun. The editor, Seth Lipsky, was speaking in an interview with the Wall Street Journal on the occasion of the publication of his book, “The Citizen’s Constitution,” which is an annotated guide footnoting the various clauses of the Constitution with references to history, the great court cases, and current events. By “constitutional moment” he was referring to the fact that advocates of limited government weren’t going to get much help from either the Congress, in which both houses were then controlled by the Democrats, or the White House. He predicted that advocates of limited government would turn increasingly to the Constitution for guidance.

We have been thinking of that interview as members of the House of Representatives get ready to open today the 112th United States Congress with a reading of the complete text of the Constitution. Just the prospect of such a reading has created a near panic in the liberal camp, including the New York Times. It issued on Wednesday an editorial calling the reading of the Constitution “a presumptuous and self-righteous act” on the part of the Republicans, “suggesting that they alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation.” Quoth the Times: “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”

The Times is right. It is certain that neither the Republican leadership — nor, for that matter, the Republican rank-and-file — is trying to suggest that African-Americans still be counted as but three-fifths of a person. Nor, the Times neglects to say, does the Constitution itself suggest that any more. The three-fifths compromise is an odious remnant that tarnished the Constitution and stood for decades as a testament to the failure of the Founders to outlaw slavery at the outset of our Republic. Eventually, however, America did confront the evil of slavery, and our country emerged from its civil war to rewrite the Constitution, to over-ride any suggestion that African Americans are less than whole citizens, and banish slavery from our soil. So what was the Times trying to suggest?

The Times asserts that there is a “similar air of vacuous fundamentalism” in the rule being instituted in the new House “that every bill cite the Constitutional power given to Congress to enact it.” But, quoth the Times, “it is the judiciary that ultimately decides when a law is unconstitutional, not the transitory occupant of the speaker’s chair.” This line was dismantled by Ira Stoll in a post called “The Times Versus the Constitution” on Futureofcapitalism.com, in which the founding managing editor of the Sun noted that, in fact, every member of Congress must be bound by oath or affirmation to support the Constitution and so is obligated make sure his or her actions are in accord with its text. No doubt the last word is had by the Supreme Court (if not the press). But every congressman or woman is bound when crafting law to support and thus to consider the Constitution.

In any event, here at the Sun the rule requiring a citation of constitutional authority suits us down to the ground. The editor has long peppered reporters and copyreaders with his oft-repeated question: “Where the blazes does the Congress get the power to do that?” The question echoes one of the most basic — and suddenly most relevant — facts about our government. It is a government of carefully limited and enumerated powers that are listed in the Constitution one-by-one. The Constitution itself says that any powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively, or to the people. With the country in a crisis in which a liberal administration is reaching for vast new powers, that idea — which will come through in the reading of the Constitution — is at the center of our generation’s “constitutional moment.”