The left-wing contribution to the shouting match.May 13, 2013, Vol. 18, No. 33 • By JOSEPH KNIPPENBERG
There is a genre of books about politics written by ideologues on both sides of the divide. Their aim is to inform their fellow partisans about the misinformation, misdeeds, and malign intentions of the people on the other side, offering talking points to rally the troops for the next confrontation. The authors are often prominent media figures—Glenn Beck, for example. To tell the truth, I don’t pay much attention to them: Not only is my blood pressure too high already, but soundbites are really for television and radio, not for books.
Wrong and Dangerous, written for “ordinary Americans” (at least those who regard today’s conservatives as the natural heirs to Anti-Federalists, slavemasters, racist ideologues, and neo-Nazis, among others), is a left-wing contribution to this canon. Law professor Garrett Epps joins con-serv-a-tive talkers and liberal pundits in excoriating his opponents and offers a patina of scholarly respectability (there are footnotes, by golly!) to arguments and assertions that would be at home any hour of the day on MSNBC. I only hope for the sake of Rowman & Littlefield—a respectable scholarly publisher that has not added luster to its list with this volume—that the book sells better than MSNBC draws.
Epps’s particular contribution to the shouting match—it’s not really a debate, since he says that “when engaging conservative arguments [I’ve thought] I was talking to people who simply did not live on the same planet as the rest of us”—is his focus on the Constitution, a focus elicited in some respects by the self-conscious (if not always well-informed) constitutionalism of the Tea Party (the “lunatics [who] have taken over the conservative asylum”). What we have here, in other words, is an accessible version of “progressive” constitutionalism taking shots at what it regards as the most serious—or is it the easiest?—targets offered by its opponents. Not for him or his readers is the sophisticated (or sophistical) doctrinal legerdemain of the law reviews; for better or worse, he offers us the words of the Constitution and a rather self-serving version of the historical record.
Underlying it all is Epps’s progressive constitutionalism, which can be summarized as follows: The Constitution is a flawed document, drafted to respond to the pressing exigencies of 1787, the chief of which was the weakness of the central government. The amendments have for the most part improved it by making it more democratic and egalitarian. Among those amendments, the Fourteenth has pride of place. As amended, the Constitution is the people’s document, expressing their wish to promote the general welfare by pretty much whatever means they regard as appropriate at the moment. To be sure, the Constitution does contain limits, but those limits have to be read sensibly and rarely obstruct what the federal government wishes to do on the people’s behalf.
Epps scoffs at those who regard the Constitution as a charter of limited government, preferring to emphasize the “general welfare” and “necessary and proper” clauses of Article I, Section 8 and asking how anyone could regard the laundry list of powers granted to Congress as reflecting anything other than the intention to empower the federal government. In his scheme, states are wayward children, to be trusted as little as possible and supervised very closely.
I would prefer to focus on the contrast between the opening words of Article I and Article II, the former referring to “all legislative powers herein granted” and the latter simply to “the executive power.” How can the first formulation not imply that there are legislative powers not “herein granted”? Placed in this context, the list of powers granted points by implication to those not granted, and those reserved, in the words of the Tenth Amendment, to the states or the people. There may thus be powers that some government could exercise regarding some area of policy that is not within the purview of the federal government, regardless of how intimately connected some of us think they are with “the general welfare.” The democratic will of the people would not necessarily sweep everything before it. States might fashion policies not available to the federal government in order to promote the general welfare of their citizens.
Epps seems to have a hard time with this distinction. For him, a stronger federal government—which I willingly concede that the Framers wanted—can only mean a government with the power to promote the general welfare in virtually any way the people want. He does not consider the possibility—much closer, I think, to what the Framers had in mind—of a government that is strong enough to be successful in achieving the limited ends left to it by the Constitution.
1:44 PM, Feb 13, 2013 • By DANIEL HALPER
Senator John Cornyn, as well as all other 44 Republicans in the Senate, introduced the balanced budget consitutional amendment today in the Senate.
"With more than $16 trillion of debt, including nearly $6 trillion since President Obama took office, we are facing nothing short of a fiscal crisis. Everyone agrees that our nation is on an unsustainable path, but unfortunately as we saw last night, President Obama is incapable of tempering his appetite for more and more spending," says Cornyn in a statement.
4:20 PM, Jan 29, 2013 • By JEFFREY H. ANDERSON
On Friday, a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously declared President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) to be unconstitutional.
4:16 PM, Jan 17, 2013 • By MICHAEL WARREN
Republican senator Ted Cruz of Texas said Thursday that Barack Obama is "high on his own power" with regard to the president's announced efforts on gun control. Speaking on Laura Ingraham's radio talk show, Cruz, who was just elected to the Senate last November, said "this is a president who has drunk the Kool-Aid."
4:10 PM, Jan 17, 2013 • By JEFFREY H. ANDERSON
Yesterday, Congress passed a series of bills to promote gun control and mental health. Among other things, the bills aim to remove “unnecessary legal barriers…that may prevent states from making information available to the background check system,” to “give law enforcement the ability to run a full background check on an individual before returning a seized gun,” and to decide what things shall count as “essential health benefits” (including potential mental-health benefits) “within [Obamacare’s] exchanges.”
Of course, it wasn’t actually Congress that passed any of these things through the constitutionally prescribed legislative process.
8:04 AM, Sep 20, 2012 • By DANIEL HALPER
Matthew Continetti reviews Larry P. Arnn's The Founders' Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It in the Claremont Review of Books:
6:15 PM, Jul 30, 2012 • By MARK HEMINGWAY
Over at National Review Online, George Mason law professor Eric R. Claeys has a very interesting and lengthy piece on how constitutionalists should view Obamacare after the Supreme Court's ruling upholding the law:
Fourth of July reflections on the Queen’s Jubilee. Jul 16, 2012, Vol. 17, No. 41 • By GERTRUDE HIMMELFARB
It was perhaps inevitable that our Fourth of July celebrations last week might have seemed anti-climactic after the four-day festivities a month ago accompanying the Queen’s Diamond Jubilee. Fireworks, however spectacular, cannot compare with the thousand-boat flotilla on the Thames cheered on by masses of river-side spectators (shivering and soaking in torrential rain) or the horse-drawn carriage procession (again, the streets lined with people) from Westminster Hall to Buckingham Palace, the Queen regally bedecked and costumed.
12:00 AM, Jul 3, 2012 • By JEFFREY H. ANDERSON
Two days after the Supreme Court handed down its landmark ruling on President Obama’s signature legislation, the president delivered his weekly radio address and didn’t utter one word about Obamacare or the ruling.
2:05 PM, Jun 28, 2012 • By ADAM J. WHITE
In September 2009, President Obama disagreed vehemently with the notion that the Affordable Care Act's individual mandate was a tax: "A responsibility to get health insurance is not a tax increase," he told George Stephanopolous. And even on the eve of oral argument, the president's Office of Management and Budget told Congress that the mandate was not a tax.
7:05 AM, May 21, 2012 • By JEFFREY H. ANDERSON
The New York Times gushingly describes how President Obama’s unique background — he’s “a man from many worlds,” “a transcender of tribes,” and, yes, “a former constitutional law professor” — has allowed him to unearth a creative “middle way” on the question of redefining marriage. That “middle way,” according to the Times’s account, is to come o
Oregon city stopping citizens from saving money in tough times.3:40 PM, Apr 26, 2012 • By KELLY JANE TORRANCE
As Ronald Reagan famously quipped, “The nine most terrifying words in the English language are: ‘I’m from the government and I'm here to help.’” Portland, Oregon, though, really is here to help. The problem is that the city hasn’t created laws to benefit Portlanders—it’s created them to benefit one specific industry, at the expense of every consumer in the area.
7:22 AM, Apr 25, 2012 • By DANIEL HALPER
Steve Hayes, with Brit Hume, Juan Williams, and Charles Krauthammer, last night on Fox News: