Charles Krauthammer’s recent opinion column in the Washington Post, Constitutionalism, calls “for a more restrictive vision of government more consistent with the Founders’ intent . . . that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries.”
“The Founders’ intent,” indeed. What unmitigated codswallop.
Krauthammer concludes, “Constitutionalism as a guiding political tendency” has such “wide appeal and philosophical depth [to] make it a promising first step to a conservative future.” If that is so, then why do the Republicans want to rewrite the Constitution?
Rep. Rob Bishop (R-Utah), a member of the House GOP’s majority transition committee, has introduced a constitutional amendment that would allow states to nullify federal laws with which they disagree. Called The Repeal Amendment, it already has legs. In his published statement, the new House Majority Leader Eric Cantor (R-VA) hopped on the new bandwagon in favor of the amendment. “In order to return America to opportunity, responsibility, and success, we must reverse course and the Repeal Amendment is a step in that direction.” So much for progress, “that direction” is backwards.
Before I get off track, let’s start with the some basics about the Constitution, perhaps even the one that Charles Krauthammer refers to – the original 18th Century one. It is a document that has been amended 17 times since its original ratification, December 15, 1791.
All through the summer of 1787, delegates drafted, debated, and redrafted the articles of the new Constitution in closed sessions to replace the existing Articles of Confederation. The primary issues included how much power to allow the central government, how many representatives to allow each state in Congress, and how those representatives should be elected, whether directly or by state legislators.
39 of the 55 framers signed off on the four pages of parchment they had produced and on September 17, 1787, the Constitutional Convention in Philadelphia adopted their work. The first Congress began work in New York City on March 4, 1789. The House of Representatives achieved a quorum and elected its first officers on April 1st, followed by the Senate 5 days later. President Washington’s inauguration took place on April 30th. The rest, as they say, is history.
The Founders, all of them men and some of them slave owners, had plenty of experience with home rule. They had endured the ravages of a revolution that put their new government in deep debt. Their country was bounded by Canada, the Mississippi River, Florida and the Atlantic Ocean. To presume to understand their intent with respect to government is suspect in the least, if not hypocritical in the extreme, except for one thing: amending the Constitution. And they made that difficult. Amending: Article V – Amendment spells out the process.
For the record, the President is not involved in the amendment process in any way. Incidentally, two-thirds of both houses must pass an amendment, and two-thirds of both houses are required to overturn a presidential veto. But, I digress.
Even if an amendment gets through Congress, it is not guaranteed to be ratified and then expires, like the Equal Rights Amendment did in 1982. The ERA intended to place into law the equality of women and men. It was sent to the states in March, 1972. But it failed to be ratified even though Congress extended the original seven year deadline to ten years.
The idea of Constitutionalism, as conservative columnist Krauthammer suggests, seems inconsistent with the Republican agenda and misses the point. It has nothing to do with the intent of the Founders, as stated. It is obfuscation. The real objective of any proposed Republican amendment is to attack the 14th Amendment, which the Repeal Act would do.
Before the 14th Amendment, the states could ignore the Bill of Rights. The truth is that the interpretation of the Constitution is what the Republicans are after. If they can succeed at eliminating the 14th, they can revive their crusade to overturn rulings in cases like Brown v Board and Roe v Wade, as I have written. Fortunately, the “Founders intent” was to make amending the Constitution something that the new Republican House majority will have little chance of achieving.