I’ve been gratified by the encouraging response given my initial American Liberty posts, in which I outline my theory of the five American conceptions of liberty. It looks like I will have a chance to present my ideas to a wider intellectual audience soon, but remember that you read about it first here.
For Constitution Day, however, I want to highlight something I wrote this past year, which I consider as important, politically speaking, even if it is conceptually simpler: Wanted: Democrat Leaders Who Forthrightly Support the Constitution.
Because, admit it folks, when it’s time to celebrate the Constitution, this isn’t going to be the place to go:
If you take offense at that, read the piece I linked. As I argued, most Democrat Leaders these days are merely So-to-Speak Supporters of the Constitution—they may not openly oppose it like Herbert Croly intelligently did a century ago, or like Georgetown law school professor Louis Seidman rather crudely did less than a year ago, but their hearts are not in openly praising it, unless of course, we’re talking about the “good stuff”:
…The Framers discerned fundamental principles… Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices. Each generation has the choice to overrule or add to the fundamental principles enunciated by the Framers…Thus, if I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate “the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century.” …For the Constitution is a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law.
Now as long as Democrats understand that what Brennan meant by “libertarian” was all the personal autonomy stuff they like, and none of the nasty free-market stuff they don’t, that could get their celebration excitement goin’. But Brennan was a very articulate man, and most Democrat Leaders today are not exactly the sort who can make the generalities glitter they way they used to.
Four or so years ago, Obama seemed the sort of leader that could make the old phrases sing again, who could connect “Change” with “We the People”—there was still a flash of this in his second inaugural. But alas, as even most honest Democrats now admit, we eventually learned that that was nearly about all he could do. And that it got tiresome—his was an oratorical music that initially stirred the soul, but never really fed it.
Democrats would do well to also admit that much of what he is doing to the relationship of the Executive Office to the Legislative Branch is at least as constitutionally serious as what many of them accused George W. Bush of doing to the maintenance civil liberties in wartime.
But for most conservatives and libertarians, today won’t primarily be a day for voicing constitutional grievances, but rather one of sincere celebration and gratitude. The love will not simply be for eight-tenths of the Bill of Rights and the scattered clauses here and there that can at least plausibly be interpreted as “majestic generalities,” but for the whole thing. Some of us might even be heard reading a Federalist Paper or two aloud.
By contrast, Constitution Day is kind of a drag for Democrats. If it were “Constitution and Supreme Court Day,” they could enjoy it much more, but since it’s Constitution Day simply, it gets a little awkward if one mainly wants to celebrate post-1930s Court decisions. Not that a few public entities, bound by law to hold events or make announcements celebrating the day, won’t wind up doing just that.
That is, when Supreme Court Justice Thurgood Marshall penned his scandalous semi-refusal to celebrate the Constitution’s bicentennial in 1987, he ended by saying I plan to celebrate…the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights, and you KNOW that he wanted to add, and the key Supreme Court decisions that protected them further!
Such decisions, most of them under-girded by the living-constitution interpretation theory that nearly half of Americans regard as illegitimate, together constitute a major part of the real body of our fundamental law, and entirely dominate that concerning Civil Rights, Civil Liberties, and Criminal Procedure. But the frustrating thing for liberals is that those decisions are all supposedly about the Constitution, and cannot present themselves as what they really are, liberal policy-victory additions to it. You don’t get to say what you know, that they are the Constitution itself, and that logically, the work of Holmes and Brennan deserves to be celebrated as nearly much as that of Madison and Hamilton. You have to pretend it all points back to the wisdom of those forty-or-so privileged white men of 1787.
Oh, it’s all so tiresome… Constitution Day? Are you serious? Okay, okay… I know I can’t act like Marshall did back in 1987… …how does this look?
But honestly, Democrats, it doesn’t have to be this way.