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Thursday, December 30, 2010

Ezra Klein: Who Can Understand What the Constitution Really Means? Because It’s Just So Old or Something/Update: Ezra Klein Responds

I was really debating whether or not I should cover this for two reasons. One, I usually stay away from stories involving how liberal the media is, unless it is especially egregious, because it, frankly, gives me tired head, and I’d feel like banging my head against the wall 24/7. Secondly, most people don’t know who Ezra Klein is and even less care. However, it is one of the slowest news weeks of the year. So, what the hell, I have nothing else to talk about.

Apparently , Ezra Klein, a Washington Post blogger and MSNBC contributor, seems to be confounded on how anyone can understand the US Constitution because is just so darn old (via @collegepolitico):

Now, I tore Ezra a new one on Twitter, right after I heard that, but after thinking about it for a few hours and listening to it, again, I am beginning to think along the same lines as Allahpundit on this:

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.) ………

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.

BTW, I made a similar point, too, a while back, when I was discussing Justice Breyer’s comment that the founder would be for gun control. New technology has come that the founders couldn’t have foreseen. While I believe that they would be ok with everyone being able to own a gun, would they be ok with everyone owning a rocket launcher, tank, or a nuke? The constitution isn’t on point with everything that is being debated, today, and many have to wonder and infer what the founders would have wanted. Not surprisingly, there are many differing opinions on what the founders intended, regarding most issues.

I, sincerely, hope that he didn’t mean it how it sounded. He could have made the same point without mentioning how old it is.

If that is what he meant, though, does he, also, think that we should go ahead and stop schools from teaching Aesop or Shakespeare in schools because they are even older than the US Constitution is, and how can we expect kids to understand their works, since is just so darn old? Plus, how can we be able to trust anything that he has to say about politics or government, if he can’t even understand the basic document that said government was founded upon?

The argument of not being able to understand the Constitution because of its age is just ridiculous. After all, most of the bills that are coming out of DC are very complicated and written in such heavy legalese that even the most astute legal scholars can have a hard time comprehending them. The US Constitution is simple in comparison to today’s legislation.

However, if he meant it how I believe that he did, he has a point.

As I type this post, he has responded to his critics, regarding this clip:

This morning, I gave a quick interview to MSNBC where I made, I thought, some fairly banal points on the GOP's plan to honor the Constitution by having it read aloud on the House floor. Asked if it was a gimmick, I replied that it was, because, well, it is. It's our founding document, not a spell that makes the traitors among us glow green. It's also, I noted, a completely nonbinding act: It doesn't impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.

The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn't. That's bunk, of course: It’s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it. And they tend to disagree about it in ways that support their political ideology. I rarely meet a gun-lover who laments the Second Amendment's clear limits on bearing firearms, or someone who believes in universal health care but thinks the proper interpretation of the Commerce Clause doesn't leave room for such a policy.

But my inbox suggests that my comments weren't taken that way: The initial interpretation was that I'd said the Constitution is too complicated to understand because it was written a long time ago, and then, as the day went on, that I'd said the document itself is nonbinding. I went back and watched the clip -- or at least the part someone clipped and sent me, which is above -- and thought I was clear enough. But when a lot of people misunderstand you at once, the fault is usually yours. So if I was unclear: Yes, the Constitution is binding. No, it’s not clear which interpretation of the Constitution the Supreme Court will declare binding at any given moment. And no, reading the document on the floor of the House will not make the country more like you want it to be, unless your problem with the country is that you thought the Constitution should be read aloud on the floor of the House more frequently. In which case, well, you're in luck!

Is he just backtracking or is that how he really meant it? I'm thinking that it is the latter. Reading it allowed and making each bill include a reason on why it is constitutional are a bit gimmicky, but it could get the lawmakers and the American people to think more critically about the constitutionality of the proposed bills, when they draw them up and decide whether or not to pass them.

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