Why Can't We Just Leave The Constitution Alone?

OK, I know, even I am in favor of certain changes to it, like eliminating the electoral college. But I wish we could all, liberals and conservatives alike, resolve to mess with the Constitution only after considerable thought, with a sense of real seriousness, and only on very important matters. It is, after all, the framework of our government. Its drafting was a considerable achievement in itself, but its acceptance as the basis of government is an equal or greater achievement, and should not, I think, be taken for granted. Using it to score political points is not just dumb in its own right; it encourages the idea that the Constitution can be tinkered with lightly, which I think is not just wrong, but dangerous.

What prompts this little outburst is the news that the House has passed a bill stripping the Supreme Court of jurisdiction over the Pledge of Allegiance.

"The House, in an emotionally and politically charged debate six weeks before the election, voted Thursday to protect the words "under God" in the Pledge of Allegiance from further court challenges.

The legislation, promoted by GOP conservatives, would prevent federal courts, including the Supreme Court, from hearing cases challenging the words "under God," a part of the pledge for the past 50 years.

Democrats said majority Republicans were debasing the Constitution to force a vote that could hurt Democrats at the ballot box.

Supporters insisted Congress has always had authority to limit federal court jurisdiction, and the legislation is needed to protect an affirmation of religion that is part of the national heritage."

I recognize, of course, that the Constitution does give the Congress the right to limit the jurisdiction of the Supreme Court (article III, sec. 2). The reason I refer to this as a constitutional issue is this: first, I think it is genuinely unclear from the Constitution's language whether the relevant passage grants Congress the right to strip the courts in general of the right to review its statutes (I think it can be read to mean that the Congress has the right to give it original jurisdiction, for instance. But I am not a lawyer, so what do I know?) Second, and more importantly, if this provision of the Constitution were used too freely, it would essentially give Congress the right to set any laws it wanted outside the purview of the courts. I mean, why not say that the courts can't rule on abortion law, or segregation, or whatever one likes? And this would not only overturn the basic structure of our government, which relies on judicial review; it would also, in principle, allow the Congress to prevent the courts from hearing and ruling on, say, any law that restricts speech, and thereby in practice overturn the Constitutional barriers on what the Congress can and cannot do.

For this reason, I think that it is really important that if one thinks that the best interpretation of this part of the Constitution is the one the Congress seems to be acting on, one use this power only very rarely, in cases in which, for some reason, operating via the normal procedures is impossible, and which are important enough to warrant this step. I cannot imagine in what possible world keeping the words "under God" in the Pledge of Allegiance is such a case.

I am also disheartened by the thought that being willing to mess with our system of government in this way is likely to be a winning issue, and by the cynicism of it all.

Comments

[Sebastian Holsclaw]

I agree with your sentiment. But I think it is important to realize that this is part and parcel of the judicial overreach problem (or for some people the perception of a judicial overreach problem).

Can't we leave the Constitution alone? The answer should be generally yes. And it should be generally yes for judges too.

[Bernard Yomtov]

So you think it's Earl Warren's fault that House Republicans are a bunch of utter jackasses?

[JadeGold]

It's a wedge issue. The GOP wouldn't exist if not for wedge issues.

It's not about "under God" or "flag burning" or requiring DC to abandon their gun control laws. Instead, it's about campaign fodder. It's about being able to brand your opponent as 'anti-religion' or in favor of BBQing the flag or anti-gun.

[Ugh]

Wouldn't that still leave state courts?

[sidereal]

Just play judo with it. Point out that if the law passes, it opens the door for laws that ban flying the flag, or ban the press talking about the flag, or taxing you for flying the flag, and the courts wouldn't be able to do anything to stop it.

It's unbelievable the absolutely asinine things the Republican Party is doing to America right now. Tell me again which party loves their country.

[CaseyL]

To paraphrase a line from one of my favorite movies: The GOP loves America...like a glutton loves his lunch.

[Gary Farber]

I wrote a comment here, but after realizing how tangential it was to your post, I posted it here, instead.

[Dr.BDH]

As unsavory as this attempt by Republicans to hamstring the courts, it hardly comes close to the damage to our government and our Constitution committed by the Republicans who impeached a President over an issue involving oral sex, and it will not diminish the worth of the Supreme Court nearly as much as it's decision in Gore v. Bush. Then there are the marriage amendment and the flag burning amendment, both insults to the spirit of Constitution.

[carsick]

I feel in these perilous times that I would be providing a disservice to my country if I didn't vote for the candidate that was willing to be courageous in the face of terrorism by fighting to make "under God" a constitutionally conscripted part of our Pledge of Allegiance.
What else could be more important in these times?

Okay maybe "No burning of the flag" should be in there too.

And "no gay marriage" and "no walking your dog without picking up the poop" and maybe a few others but I think you understand that since 9/11 things have changed. It's a different world and we need to change the way we accept the world. Right?

[carsick]

Actually I think Donald Rumsfeld emphasized my way of thinking almost perfectly (I made a few minor changes):
""Well, so be it. Nothing's perfect in life, so you have an [America] that's not quite perfect. Is it better than not having an [America]? You bet," he said."

He then declared Marshal Law and when it was pointed out that the Secretary of Defense didn't have the authority or responsibility to declare marshal law he was heard stating, "Weren't they listening?"

[Brian]

This whole "judicial review" stuff is nonsense anyway. Let's just do away with the judicial branch. And the legislative branch is annoying too. Get rid of them both. Then, the infinitely wise Edicts of the Dear Leader could lead us all unquestioningly from triumph to triumph, to a brighter future for all.

[Sebastian Holsclaw]

"Then, the infinitely wise Edicts of the Dear Leader could lead us all unquestioningly from triumph to triumph, to a brighter future for all."

Lets get the same result by getting rid of the Congress and President and letting the Supreme Court make all the decisions.

Come on. Be serious.

[Anarch]

Come on. Be serious.

Hey, it works for me. As long as a) I'm the Dear Leader, b) everyone is skilled enough at mind-reading to know what it is I really want despite my inability to articulate it, and then c) everyone exercises massive precognitive powers to figure out what should be done to achieve it. And I'll Roshambo anyone who thinks this system is less than perfect.

But fine, I'll stick with this democracy crap if it makes y'all happy. It's too much work being the Supreme Dictator anyway.

[Brian]

I hope you got that that was a joke. . . anyway, I'm hard to shock but I find it shocking that these clowns think the thing to do with whatever pet cause they have is to remove judicial review of the question. It's lunacy. Once you start on that road where does it end up? The Dear Leader of course.

[Gary Farber]

I considerably thank both Katherine and hilzoy, both of whom I hold in the greatest respect, for responding to my post. I'm unsure "why can't we leave the Constitution alone unless I have a partisan and highly arguable reason of my own" is the best argument, however.

Can't "why can't we leave the Constitution alone?" work?

But that's me.

[hilzoy]

Hmm -- I didn't read Katherine's reply as making a partisan argument, nor did I wrote mine that way. The respect is mutual, though.

[Gary Farber]

I don't think either of you saw it as partisan. I think that, nonetheless, you both were writing an argument that favored (for a few years, as I pointed out) us Democrats, and I'm not clear either of you were entirely unconscious of that. Be that as it may, I'm possibly all wrong about that.

I still think you're both great. Some other Democrats want to beat me when I'm contrarian like this, so I won't blame either of you for, well, whatever.

I still think "why can't we leave the Constitution alone?" stands best by itself, alone.

It's a powerful argument, and I don't favor weakening it.

That's my story, and I is stickin' to it.

[Gary Farber]

I'm still wondering how I got to live in Pennsylvania, though.

;-)

[hilzoy]

So am I. The more I try to figure out where exactly I got that idea, the less of a clue I have. My mind is a mysterious place.

One thing -- when I hopped over to reread my comment to see what was so partisan about it, I thought maybe the part about not wanting an election to be decided by the House, "especially now". The intent was not: "not now, while the Republicans are in charge", but: "not now, in the current hateful and poisonous political environment." Also, FWIW, this is a view I've held since the mid '70s (I was a precociously political teenager), which may be why I suspect myself of partisanship less. I did get more concerned about it after 2000, but I think that was because before I hadn't taken the possibility of elections where someone didn't win outright seriously;

[Katherine]

(we're talking about the electoral college everyone).
Gary--I don't think it's at all clear that it would help Democrats. It helps Texas as well as New York and Massachusetts, and harms Vermont as well as North Dakota. I guess the big states are slightly more Democratic as a whole, but this stuff is just really unpredictable--the Senate helps small states much more than the electoral college does, and yet it's more liberal and more likely to have a Democratic majority than the House. Before the 2000 election people thought it was Bush who risked winning the popular vote and lose the election--and it could as easily happen to Bush as to Kerry now.*

It could be partisan in that I didn't care until 2000 and wouldn't have cared if Bush had been in Gore's place. But, I can honestly say that's not true. I first read the Constitution in fourth or fifth grade social studies. I thought it was dumb that the popular vote winner could lose the election, and I thought it was dumb that you could never be President if your family immigrated to America when you were in elementary school. I still think both those things are dumb. (and I really don't care that lifting the born-in-America requirement would allow Arnold Schwarzanegger to run for President.)

*Kerry does better in higher population states, but I don't think Kerry's margin of victory in the blue states is likely to be as high as Bush's margin of victory in some of the red states.

[rilkefan]

I read _A Game of Thrones_ by G.R.R. Martin today and I have just one word to suggest: trial-by-combat.

[Gary Farber]

Out here on my own blue, it occured to me yestereday that I owed apologizes to both Hilzoy and Katherine. Since they say their position on the Electoral College is imply fair, and non partisant, and that the fact that it benefits their personal benifits for several decades is incidental, that I must accept them at their word, not imply they are acting in partisan fashion here; and that said partisan beneift for decades to come is purely coincidental. I apologize for having implied they were acting in any but purely abstract faishion for pure fairness. Despite the number of folks who wind up undruly screwed unfairly by this scheme. Their unfairness doesn't sounct, but someont it's all noble and for the best. No matter who gets screwed. Somewho. I thihk I've got it. Maybe.

So I do. .

Maybe not; it makes my head spin.

[John-Michael P. Talboo]

Save Our Constitution
http://www.arnoldexposed.com/