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The Whole Constitution Pledge

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Some folks calling themselves "Constitutional Progressives" have come up with this Whole Constitution Pledge.  Some of it is perfectly fine, including the punch line, "I pledge to support the whole Constitution."  I do support the whole Constitution, but do the people who wrote the pledge?

Other parts of the pledge are more problematic.  Some parts are jousting with enemies who are either imaginary or harmless.  Some parts are logically impossible.

So let's look at the pledge, bit by bit.
Through the Constitution, "We the People" created the most enduring government charter in world history.

Agreed.  It does my heart good to see you embrace American Exceptionalism.

Building on the achievements of the Founding generation, successive generations of Americans have created a "more perfect union" through constitutional Amendments. These Amendments have improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote...

Agreed.

...and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.

Not so fast.  The Amendments have indeed empowered the federal government in important areas, but they have definitely not expanded its power to include everything that might be described as a "national challenge" or to secure everything that might be considered a "civil right."

One of those Amendments was the Tenth Amendment, which confirms explicitly what was implicit in the original design.  If a governmental power is neither assigned to the federal government nor forbidden to the states, it remains with the states.

Some have advocated repeal of Amendments, including the 14th Amendment, the 16th Amendment, and the 17th Amendment, that make our Constitution better and this country great.

Who exactly are the "some" who advocate repeal of the 14th Amendment?  Nobody who needs to be taken seriously.  That notion is completely wacko.  If a great dane is attacked by a chihuahua do we really need to rush to the dane's defense?

As to repeal of the 17th Amendment, direct election of senators, there is a lively academic discussion, but it's purely academic.  I would oppose the proposal if opposition were needed, but it's not.  The notion of letting Darrell Steinberg et al. choose California's senators is positively appalling.  For the Feinstein seat, coming up for reelection next year, they might very well make a worse choice.  But as a practical political matter, the 17th-repealers haven't got a snowball's chance in hell, so why bother?

For the 16th, income tax, people who want to abolish that tax and replace it with a different kind of tax, such as a consumption tax, are not wacko.  There are decent economic arguments for that.  But that does not take a constitutional amendment.  Congress could repeal the income tax by statute, if the repealers got just a simple majority of both houses.  That would render the 16th Amendment an unused part of the Constitution, like the Third Amendment.  I don't think there is any serious danger of its repeal.

Some have even failed to heed the lessons of the Civil War and the Civil Rights Movement and have advocated a return to ideas of secession and nullification.

A bit of loose talk about secession is just hyperbole.  Nobody's going to refight the Civil War.  The history of nullification is more complex.  When Jefferson and Madison drafted state resolutions against the Alien and Sedition Acts, they were right on the substance, even if their remedy was ineffective.  Calhoun's nullification effort was less well grounded on the substance, but it was equally ineffective.  Yet we need not and should not be completely dependent on the courts to protect the constitution from encroachment.  The courts are sometimes the encroachers.  Continued discussion of alternatives is not a threat.  Indeed, it is a constitutional right.  Nothing here to get bent out of shape about.

I believe that our Constitution has been improved by the Amendments adopted over the last 220 years.

All the amendments?  That presents a bit of a conundrum.  Do you, Constitutional Progressives, believe the Constitution was improved by the 18th Amendment, prohibition?  Do you believe it was improved by the 21st Amendment, repeal of prohibition?  Do you believe both?  How?  Do you categorically oppose repeal of any amendment?  If so, you have to oppose the 21st Amendment, which repealed an amendment.  Would you then support repeal of the 21st Amendment?  Paging Harry Mudd.

I pledge to support the whole Constitution.

I do indeed, dear Constitutional Progressives, including the Tenth Amendment.  I'm not too sure if you really do, though.

6 Comments

The Republican candidate for President who is leading in national polls, Rick Perry, called for the repeal of the Sixteenth Amendment in a book authored just a year ago, and described the enactment of the Seventeenth Amendment as a mistake enacted in a fit of populist rage:

http://www.washingtonpost.com/blogs/plum-line/post/does-rick-perry-still-favor-repeal-of-16th-amendment/2011/03/03/gIQAcghgWJ_blog.html

http://verdict.justia.com/2011/09/16/is-rick-perry-right-that-the-seventeenth-amendment-was-a-mistake

David Vitter and Rand Paul introduced a measure to amend the Fourteenth Amendment to strip individuals born in the United States of citizenship conferred by that Amendment:

http://www.foxnews.com/politics/2011/01/28/senate-proposal-amend-constitution-restrict-birthright-citizenship/

And I hear alot of Tea Party rhetoric by people who insist that they, unlike progressives, just love the Constitution, but they often seem to have big problems with large parts of it. I don't know that there is anything wrong with pointing out the radical nature of these politicians or their supporters, which is the point of this Whole Constitution Pledge.

Nothing in your comment contradicts my points that (1) the 17th Amendment repealers don't have a snowball's chance in hell of success; and (2) those who want to abolish the income tax could do so with a mere statute, so neither of these proposals is a real threat.

As to the Fourteenth Amendment, the meaning of "subject to the jurisdiction thereof" in the citizenship clause is disputed. Regardless of where one stands on that dispute, a proposed amendment to resolve it -- one way or the other -- is not by any stretch of the language a proposal to repeal the 14th Amendment. A repeal proposal would be a proposal to repeal the whole Amendment, including the vastly more important Due Process and Equal Protection Clauses, and I haven't heard anyone of any public stature propose that.

Regardless of what rhetoric one hears from various tea partiers and regardless of what the proponents of the pledge intended to point out, what they succeeded in pointing out is that they don't really support the "whole constitution" themselves. Their pledge is self-contradictory, pledging to support the "whole constitution" while including a view of federal power that is contrary to the 10th Amendment.

The implication that supporting the "whole constitution" means opposing any further amendments that might modify some of the existing amendments is also very strange. The pledge celebrates the amendments passed so far as improvements. They are, for the most part, but that doesn't make them perfect any more than the original document was perfect.

That is the point of my 18th Amendment example. It was a mistake and rightly repealed. The failure of the First Congress to allow for inflation in the dollar threshold for civil jury trial in the 7th Amendment was also a mistake. (And a surprising one, given that they were keenly aware of inflation and its hazards.)

Is there any reason the process should be frozen at this particular point in time, celebrating the amendments to date and categorically ruling out any others? I don't see any good reason for such a position.

The amendment most needed, in my view, is an amendment to the amendment process. States collectively should be able to bypass Congress and propose their own amendment without the nuclear threat of calling a convention. Amendments should be submitted to the people for direct vote for ratification.

There is no inconsistency between saying one supports the whole constitution, including the amendments to date, and believing that further improvement through further amendments is desirable.

Is there some irony here? We see an easy acceptance -- indeed, a hearty welcome -- for changes in the Constitution wrought by the judicial branch without any democratic input (see, e.g., Miranda, Roper, Kennedy v. Louisiana, Graham v. Florida), but when someone suggests pursuing the very process the Constitution designates to make a change in it, this is regarded as the onset of the Fascist Conspiracy.

This is not to say I support any of the changes being proposed. I really haven't looked at them, and my inclination is not favorable. But the idea that pursuing the established amendment process is bad, while judicial gamesmanship with the Constitution is good, is really quite odd.

I assume they don't think the Tenth Amendment sweeps as broadly as you do, which is a disagreement over interpretation rather than over fealty to the Constitution. Interpretations of the reach of the Tenth Amendment have waxed and waned, but disagreeing with a broad interpretation of the Tenth Amendment does not mean that someone doesn't embrace the "whole constitution." See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)(Fair Labor Standards Act may be applied to state governments without violating the Tenth Amendment); United States v. Darby, 312 U.S. 100, 124 (1941) ("The amendment states but a truism that all is retained which has not been surrendered")

From the progressive perspective, between FOX News and talk radio and the Republicans in Congress and on the campaign trail, there has been plenty of talk about how modern-day conservatives love the Constitution. In contrast its not been hard to find loud public voices, in the media and politics, saying that socialists like our President, who probably wasn't even born in this country, don't respect the constitution like conservatives do.

When leading Republican candidates for President declare that Social Security and Medicare are unconstitutional, it makes me shake my head a bit. When a majority of the House of Representatives vote along party lines to change Medicare into a voucher system, it makes me shake my head even more.

Those individuals calling for such radical changes, which are sometimes contrary to the views reflected in polling of vast majorities of the American public, often aren't on my side of the aisle these days. I feel the same way when I see State Sovereignty resolutions passed by state legislatures, which remind me of nothing so much as the State Sovereigny Commissions created by Southern States as part of Massive Resistance in the 1950s, or see proposals like the one you've listed above.

It makes me wonder who really is interested in conserving our current society and political system. Who are the real conservatives these days? And who are the radicals?

"The amendment states but a truism that all is retained which has not been surrendered." That statement is fully consistent with my position that "the Tenth Amendment ... confirms explicitly what was implicit in the original design."

From there you wander off topic, so I'll just let it stand at this point.

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