Newsweek Declares Originalism "Wrong"
Adam Freedman ·
Oct 18, 2010 at 8:48am
Newsweek is running a feature about "how tea partiers get the constitution wrong." Dripping with condescension, Newsweek's Andrew Romano declares that tea partiers "seek refuge from the complexity and confusion of modern life in the comforting embrace of an authoritarian scripture." That's right -- it isn't just guns and religion; now the snaggle-toothed hicks are clinging to the Constitution!
Romano's argument is that the Constitution is all well and good, but that Originalists actually get the document all wrong. Here are some of his supposed points:
- the Fourteenth Amendment . . . gave Washington sole responsibility for safeguarding all constitutional rights. This one's a howler. The 14th Amendment doesn't say any such thing. Courts have held that the amendment extends certain "fundamental" rights to the States; but even then, absolutely nothing suggests that the 14th Amendment gives "Washington" exclusive jurisdiction to safeguard rights.
- [A]utomatically granting citizenship to the native-born children of illegal immigrants [is required by] the 14th Amendment. That may or may not be good policy, but there is plenty of evidence that the framers of the 14th amendment did not intend the citizenship clause to apply to the children of illegal immigrants.
- The Constitution is a relentlessly secular document that never once mentions God or Jesus. Right - oh but there's that First Amendment thingy that guarantees freedom of religion. And the Founders gave the President ten days to veto a bill, "Sundays excepted." Hmm, why did they say that? So as not to interfere with the Presidential Brunch?
- [C]onservatives like Michele Bachmann have suggested more than 40 additions to the Constitution. On what planet is that inconsistent with originalism? The Founders wrote the amendment process right into the document. Romano appears to assume that originalists can only submit amendments that seek to "reinstate" original meaning.
- [N]othing in recent jurisprudence suggests that the past few decades of governing have been any less constitutional than the decades that preceded them. This is the most bizarre sentence in the piece -- what does he mean? "Recent jurisprudence" is just a fancy way of saying "recent court cases." Maybe he's saying that the explosive growth of the regulatory state is perfectly constitutional because the Supreme Court has not seen fit to abolish it. And thus, Romano must assume that Supreme Court decisions have a kind of scientific authority that the frumpy old tea partiers can't second guess. I wonder if Romano has the same deference for, say, the Supreme Court's decision in Citizens United?
- Thomas Jefferson would have "mocked" today's originalists. Who knows? But Romano might want to refer to the following bit of wisdom from TJ: On every question of construction [we must] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.
- Comment (19)
- · Quote
- · UnfollowFollow (1)
Comments :
Jun '10
Re: Newsweek Declares Originalism "Wrong"
Thanks Adam.
It's actually funny, because the Constitution is not a long document. Most of it is about procedure and system structure. The part that matters, the delegated powers and the Bill of Rights is a 10 minute read.
And, if you read it, it is obvious that our current government has WILDLY strayed from it.
You have to 1) not read it, and/or 2) treat it like a trival document to justify modern federal government.
It's not brain surgery. Originalists have got it.
Jul '10
Re: Newsweek Declares Originalism "Wrong"
Um, is there some crazy originalist who lives in Romano's head or something who really who thinks the Constitution makes specific mention of "God or Jesus"?
That "refutation" has a strong whiff of straw about it.
Re: Newsweek Declares Originalism "Wrong"
Yup, it's all straw. The opening paragraphs are devoted to -- surprise! -- Christine O'Donnell. Romano then bases his piece on the assumption that O'Donnel = Tea Party. And even then, he gets it wrong. Seems sloppy to me. But what do I know, I'm not a professional opinion-maker.
Sep '10
Re: Newsweek Declares Originalism "Wrong"
thanks Adam. Very helpful summary. Is making a crack about no one reading Newsweek now to trite to do anymore?
Pete
Aug '10
Re: Newsweek Declares Originalism "Wrong"
Spot on, Adam, and well done. We're facing an epic full court press of lies and distortions, starting with the ultimate 'progressive' mantra:
"... tea partiers seek refuge from the complexity and confusion of modern life in the comforting embrace of an authoritarian scripture."
Much of the "complexity and confusion of modern life" is the direct result of amoral crypto-Marxist/Progressive Utopian plans gone awry; from entitlements to political correctness to grievance pandering and race/ethnicity balkanization.
"...Authoritarian scripture"? The Democrat-'progressives' are working 24/7 to establish the most authoritarian government America has ever seen, guided by the scripture of Marxist/socialism.
Why do so many of our fellow citizens remain asleep? That's a rhetorical question.
Aug '10
Re: Newsweek Declares Originalism "Wrong"
Adam,
Were you the 4576 th person to read that issue of Newsweek ? Just wondering because I think they are right behind Midwest Quilters in circulation these days.
And condescending is no way to describe whining elitism . Whiners always talk up.
Gotta love it, though. Imagine the talkingpoints memo on this one ? It's pretty wordy and fairly hard to write the instructions to this one. It's not like responding to a John Edwards scandal with something like, well his hair is like JFKs !
May '10
Re: Newsweek Declares Originalism "Wrong"
Adam Freedman:
It's like Chuck Schumer's fetish about stare decisis, but only when he's interviewing Republican appointees. It matters not that the SCOTUS has overturned itself 130 times between the end of WWII and the beginning of the Clinton Administration.
Some, like Judge Richard Posner, have even suggested that the court impose "super stare decisis," a concept backed by snarlin' Arlen of Pennsylvania for abortion.
Jun '10
Re: Newsweek Declares Originalism "Wrong"
Adam Freedman:
My favorite:
"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:388
That statement doesn't seem to leave much room for "living chains."
Jun '10
Re: Newsweek Declares Originalism "Wrong"
EJHill
Adam Freedman:
It's like Chuck Schumer's fetish about stare decisis, but only when he's interviewing Republican appointees. It matters not that the SCOTUS has overturned itself 130 times between the end of WWII and the beginning of the Clinton Administration.
Some, like Judge Richard Posner, have even suggested that the court impose "super stare decisis," a concept backed by snarlin' Arlen of Pennsylvania for abortion. · Oct 18 at 9:51am
Excellent EJ. What better evidence could there be than an insistance on stare decisis that the leftists really do believe that the SC is amending the Constitution, not simply applying consitutional principles to specific fact patterns.
Aug '10
Re: Newsweek Declares Originalism "Wrong"
Adam Freedman
Yup, it's all straw. The opening paragraphs are devoted to -- surprise! -- Christine O'Donnell.
Mmm... I wasn't aware that Christine O'Donnell was an expert on Constitutional law.
Wait, now I see it. Professor Epstein is just Christine O'Donnell in man-drag.
Very convincing costume, Christine.
And, oh no, all of the four conservative justices on the Supreme Court are just Christine in disguise!
She can do this because she's a witch.
Re: Newsweek Declares Originalism "Wrong"
EJHill It's like Chuck Schumer's fetish about stare decisis, but only when he's interviewing Republican appointees. It matters not that the SCOTUS has overturned itself 130 times between the end of WWII and the beginning of the Clinton Administration.
Some, like Judge Richard Posner, have even suggested that the court impose "super stare decisis," a concept backed by snarlin' Arlen of Pennsylvania for abortion. · Oct 18 at 9:51am
That's an important point. The Supreme Court is free to reverse itself so stare decisis is a non-issue for SCOTUS. And that's why Specter wants to make Roe a "super precedent" that can't be overturned, even by the Supreme Court. And it's the tea partiers who have a rigid, inflexible view of constitutional law.
May '10
Re: Newsweek Declares Originalism "Wrong"
What else can you expect when the Constitution enables Congress to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Declarations as shady as these invite collectivist interpretations.
May '10
Re: Newsweek Declares Originalism "Wrong"
Let's agree that its long past time to stop taking Newsweek seriously. The magazine has no real use except as a counter-example to toss at those defenders of professional journalism who claim that bloggers are inferior to traditional news sources.
Bad ideas, badly written at too high a price.
Re: Newsweek Declares Originalism "Wrong"
Trite but true, as they say. To be fair, Newsweek's small circulation doesn't necessarily mean that the article is bad. But then again, this sort of article may explain why the circulation figures are plummeting.
Re: Newsweek Declares Originalism "Wrong"
The leftist position seems to be that the Constitution itself is irrelevant, except for decisions handed down by courts created by the same document.
If the Constitution is not binding as written, then what is the basis for the authority of the government created thereby?
May '10
Re: Newsweek Declares Originalism "Wrong"
I made this point once before but it bears repeating: If you give 100 ordinary conservative folks the power to rewrite the Constitution you would end up with a document that resembles 95% of the current document.
If you give 100 ordinary liberal/progressive folks the power to rewrite the Constitution you would end up with a tortured document that would ramble on for hundreds of pages and would be a nightmare of group rights, faddish pop psychology, outright lunacy and the complete surrender of American sovereignty to international organizations.
Jun '10
Re: Newsweek Declares Originalism "Wrong"
EJHill: I made this point once before but it bears repeating: If you give 100 ordinary conservative folks the power to rewrite the Constitution you would end up with a document that resembles 95% of the current document.
If you give 100 ordinary liberal/progressive folks the power to rewrite the Constitution you would end up with a tortured document that would ramble on for hundreds of pages and would be a nightmare of group rights, faddish pop psychology, outright lunacy and the complete surrender of American sovereignty to international organizations. · Oct 18 at 11:52am
It does indeed bear repeating, EJ. I missed it the first time -- it is a very powerful insight and undeniably true. Of course their constitution would be of the living, breathing kind that could be largely ignored.
Edited on Oct 18, 2010 at 2:03pmOct '10
Re: Newsweek Declares Originalism "Wrong"
I tend to be a Steynian pessimist especially when I read things like this. I've long since ceased to be surprised by the constitutional illiteracy of media outlets such as Newsweek.
While I'm looking forward to what is going to come to pass next month when the voters punish the Democrats for their overreaching, it's articles like these that remind me that we've long since ceased to be a constitutional republic. We've had generations of students miseducated about our Constitution and our nation's history. The result is a nation filled with people who don't understand their Constitution so they didn't realize when they lost it. How can you defend that which you don't understand?
It's going to take a very long time to restore proper constitutional government to our country and the first step is getting people to understand what they lost. I don't know how you do that with the teacher's unions in charge of the education system.
Sep '10
Re: Newsweek Declares Originalism "Wrong"
Sadly, you don't need to give 100 ordinary liberal/progressive folks the power to rewrite the Constitution. You only need to let five of them obtain seats on the Supreme Court and they will take that power for themselves.