Constitution

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.

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.

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: