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.
Of course, I do not regard a few lines here as dispositive of the issue; I mean only to indicate that matters are not as simple as Garrett Epps makes them seem. Indeed, in this respect, he mirrors some of the oversimplifications of his targets. Rather than laying the groundwork for a reasoned consideration of the issues, he simply provides ammunition to one side and prolongs the shouting match.
One more example of his method will suffice. In his discussion of religion and the Constitution, Epps takes as his target the hucksterish David Barton, who relentlessly popularizes the notion of the United States as a “Christian nation.” Epps is right that Barton needs to be discredited, but he is hardly the man to do it, for all he would do is replace Barton’s exaggerations and distortions with his own. For Epps, the criticisms of Thomas Jefferson’s “wall of separation”—a distinction that was read into the First Amendment by Justice Hugo Black in his 1947 Everson opinion—“ignore a historical fact” that, more than a century before Jefferson, the great Baptist dissenter Roger Williams used the same language.
Yes, that is indeed a fact; but its bearing on the matter at hand is far from clear. To be sure, Jefferson was telling the Danbury Baptist Association what it wanted to hear, and James Madison might have had his own reasons for opposing any kind of governmental connection with religion. But there were many equally distinguished Founders on the other side of the question, George Washington and John Marshall among them. More than once, Epps makes a point of arguing against the invocation of the Founders’ authority, but when it suits his purposes, he is not above playing the same card.
What is important, in this case as in others, is not what one or another of the Founders thought, but rather what the language meant to those who voted to adopt it in the state legislatures and conventions. Indeed, we have an excellent indication of the meaning of the First Amendment religion clauses to those who proposed them. The First Congress, which proposed the Bill of Rights to the states, also re-passed the Northwest Ordinance. Rather inconveniently for Epps’s argument, the Ordinance contains the following language:
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Whatever the prohibition of “laws respecting an establishment of religion” means, it was thought by those who voted for it to permit public support for schools that teach morality and religion. While Epps might prefer that the plain language of the Constitution squarely support his favored position (and squarely oppose the positions he does not like), it is not that simple. That the proponents of the “Christian nation” thesis are wrong (as they surely are) does not make the strict separationists right (as they just as surely are not).
Epps regards those with whom he disagrees as “not living on the same planet.” He is right. There are, indeed, some fantastic elements in their constitutional world—nullification, for example, and the assumption that if senators were elected by state legislators we would make great progress in restoring the balance between the states and the federal government. But sober students of the Constitution do not inhabit Epps’s planet, either, as I hope I have begun to demonstrate. Furthermore, they do not have to resort to name-calling, exaggeration, and distortion to correct the misapprehensions of Tea Party constitutionalists.
The Constitution deserves a central place in our political discourse. Of course, partisans on both sides will always be tempted to find what they want in it. If there is no better antidote to partisanship on one side than on the other, then we are in much worse shape than I had thought. I would be quite happy if sound education would correct the fallacies of the partisans on both sides. Garrett Epps’s effort gives me less confidence about the prospects that we can teach and learn our way out of this conundrum.
Joseph Knippenberg is professor of politics at Oglethorpe University.