Lefty blogger: The Constitution is confusing because, hey, it’s pretty old

posted at 3:55 pm on December 30, 2010 by Allahpundit

Via Eyeblast. The good news? This clip has become such a hit among righties on Twitter that Iowahawk was inspired to cook something up in honor of it. The bad news? I think Klein’s getting a bit of a bad rap. His formulation is idiotic — not all old texts are confusing, of course — but that’s probably just rhetorical clumsiness while live on the air. All he means, I take it, is that it’s often not clear how constitutional provisions should apply to modern circumstances not envisioned by the Founders. This is why there are 5-4 decisions all the time on the Supreme Court, and even splits within the Court’s conservative wing, on matters of huge constitutional import. (It pains me to remind you that Scalia concurred with the judgment of the majority in the Raich case.) Here’s Klein elaborating at his WaPo blog:

Let’s take an example: Most legislation doesn’t currently include a statement of constitutional authority. But there’s one recent measure that did: Section 1501 of the Patient Protection and Affordable Care Act. That is to say, the individual mandate.

“The individual responsibility requirement provided for in this section (in this subsection referred to as the requirement) is commercial and economic in nature, and substantially affects interstate commerce,” reads the opening paragraph. Shortly thereafter, the legislation makes itself more explicit: “In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.”…

My friends on the right don’t like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. The Second Amendment, for instance, says nothing about keeping a gun in the home if you’ve not signed up with a “well-regulated militia,” but interpreting the Second Amendment broadly has been important to those who want to bear arms. And so they’ve done it.

I made a variation of this point myself a few weeks ago when writing about the GOP’s insistence that all new bills contain a citation of constitutional authority. Klein thinks that’s a gimmick and nothing more; I think it’s a useful way to encourage the public to think about structural limits on government power, which is naturally why liberals don’t like it. But as a meaningful bar to congressional action, it’s worthless precisely because there’s usually some constitutional argument that can be made on behalf of any bill. Any good conservative lawyer could, if he/she had to, argue on behalf of the individual mandate; it’d be done through gritted teeth, with a facial expression suggesting constipation, but the argument itself is clear enough. Any good liberal lawyer could argue the opposite, with the same reaction. And needless to say, there are a lot of good conservative and liberal lawyers in Congress. My main problem with Klein’s argument is simply that he misidentifies the source of constitutional ambiguity: It’s not so much that the document is old, it’s that it’s remarkably terse. If we wrote a new Constitution today and limited ourselves to five pages, there’d still be a lot of headscratchers for the courts tomorrow, notwithstanding its newness.


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