There’s an axiom for trial lawyers – if the facts are working against you, pound the table and scream the law; if the law’s working against you, pound the table and scream the facts; if both are working against you, just pound the table and scream. That’s what I got out of Richard Stengal’s Time Magazine article One Document, Under Siege. In it, he posits the liberal argument for the Constitution being more of a guideline than a rule.
Mr Stengal begins with the familiar stanza: “Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.” This is the main thrust of liberal attacks on the credibility of the Constitution – it’s old! It was written by a bunch of rich white guys who never heard of Lady Gaga! What’d they know?!
I have no idea what any of Mr Stengal’s examples has to do with the Constitution.
He offers a general soliloquy about some of our modern situations by asking what the Framers would think about them, narrowing the discussion to focus on four such issues: our participation in Libya’s civil war; the debt ceiling; the Affordable Care Act; and immigration. Before espousing on those subjects, however, he mentions in passing the “crazy” idea of each state having equal representation (despite vast population differences) in the Senate. I wish Mr Stengal had made this one of his more detailed arguments, as it, in absentia of explanation, leaves only a rather astonishing ignorance of our bicameral system of federalism, and why the Framers established it.
Using Libya as exemplar of the unconstitutionality of the War Powers Resolution, I tend to agree with him (and all US presidents from Nixon to GW Bush) that the Resolution does usurp Congress’s power to commit the nation to war and to sue for peace. There are presidential tools to deploy weapons-hot forces in an actual emergency (e.g., impending or immanent attack), but the run-up to situations like the ones Mr Stengal mentions (Libya in 1986, Panama in 1989, Somalia in 1992, Bosnia in 1995 and Kosovo in 1999) included ample time for the president to acquire a congressional declaration ante bellum. Made more complicated by being a UN undertaking, our current involvement in Libya is no different – in fact there was an inordinate amount of time before our entry into combat operations to stretch credulity qualifying it as an “emergency.”
The furor swirling around the debt ceiling is hopelessly clouded by disingenuousness. The (multiple) “drop-dead-lines” are arbitrarily set by the Treasury Department; inflowing revenues comprise over 70% of everything the Democrats want to spend, debt service being ~6% of that; and Mr Stengal is correct in saying that actually defaulting on debt held by the United States is forbidden by the Constitution (14th Amendment, Section 4). What would have to happen, should the debt ceiling be frozen, is that the Executive would have to pick and choose what programs to fund at what levels in order to maintain interest payments and Treasury Bond redemptions. The rest is all politics.
The constitutional question regarding the Affordable Care Act is the mandate justified by the Commerce Clause, and that is being adjudicated as I write. The Sixth District in Cincinnati, by a three-judge panel, just upheld the mandate 2-1, saying “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in healthcare delivery and health insurance.” Well yeah, but “essential” doesn’t necessarily mean “constitutional.” Mr Stengal goes on to say that “[the mandate is] not universal; people who are on Medicare and Medicaid, for example, don’t need that coverage.” Huh? Medicaid is the program all those “who like their coverage” are being pushed into by the Affordable Care Act – Medicare and Medicaid are, themselves, insurance coverages, so no, they won’t be compelled to buy private policies. Specious argument.
On immigration, Mr Stengal proffers an excellent explanation of the 14th Amendment’s anchor-baby provision and its post-slavery rationale. While I agree that it has outlived its usefulness to assure slaves that they and their progeny are unequivocally citizens, I don’t agree with him that jus soli should be waived as a qualification for a candidate for the presidency.
So after an opening hostile to the Constitution as written, Mr Stengal’s detailed discussion seems to uphold the Constitution’s provisions he chose to highlight, the anchor-baby provision excepted. The article concludes by continuing the opening’s hostility toward assuming the Authors meant what they wrote. He failed to make an actual argument that discredits the Constitution’s ability to deal with any of the contemporary issues claiming to require interpretive agility. Mr Stengal obviously has a problem with people questioning the legal pedigree of the Affordable Care Act’s mandate, but that is being adjudicated. He notes that, “a constitution in and of itself guarantees nothing. Bolshevik Russia had a constitution, as did Nazi Germany. Cuba and Libya have constitutions,” all of which is true, but he fails to mention that all of those are strong executives of the sort he argues we need. Those societies are of the type from which our Constitution, as written, differentiates us. The balance of the branches – each having oversight of the others – all but renders such disregard of a constitution impossible. We’re living an example of that process as some 26 cases work their way through the courts, serving as a check on the legislature (an executive check – signing or vetoing – already having taken place). Liberals may well find the Constitution inconvenient, but I see nothing here that transgresses beyond that.
 Richard Stengal, One Document, Under Siege, in Time Magazine, June 23 2011.
 But they were conversant with Aristotle, Plato, Thomas Aquinas, Thomas Hobbes, John Locke and Adam Smith, among others.