The Constitution versus values - United Republicans

The Constitution versus values – American Thinker

September 16, 2023

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Jamelle Bouie’s “Republicans Don’t Mind the Constitution. It’s Democracy They Don’t Like” should win the New York Times’ op-ed columnist an “Excellence in Demagoguery through Equivocal Language” award. How does he manage that? Let me explain.

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Bouie distinguishes between the “Constitution” and “values.” This dichotomy is sometimes cast as the difference between the “original Constitution” and the “living Constitution.” The latter is understood as whatever liberals want at a given moment in time and decide to read into the Constitution. That tactic, as Harvard professor Mary Ann Glendon pointed out, generated the bogus approach of “rights talk” (of which Roe v. Wade was the consummate example): the elimination of democratic debate because policy issues were constitutionalized, turned into ersatz “rights” that were removed from policy fora.

Dobbs began to roll back the excesses of “rights talk,” a trend this Supreme Court is likely to foster. So resort to the “living Constitution” approach to ensconce liberal policy as constitutional obligation is rarer.

Our author doesn’t resort even to that tactic, because there’s something even more invidious going on here: the delegitimization of the Constitution itself. Whereas, once upon a time, we could try to summon the hidden “living Constitution” from the dry parchment of the written document, the left’s latest tactic is to see the Constitution itself not so much part of the solution as the problem. Opposition to the Electoral College has morphed into opposition to the Senate (how dare those 500,000 Wyoming deplorables outvote 40 million Californians?) and the “illegitimacy” of the Supreme Court (now that it can’t be counted on to impose the “living Constitution”).

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But, in the end, all those aberrations are grounded in the Constitution itself. The Bouies of the world have just pointed out that problem before the rest of the left has.

The Constitution is another privileged document, the product of dead white North American males who entertained preposterous ideas such as a constitution or law is what is written down on paper, neither less nor more. (Tell that to members of Congress who think their contract with ratifying states that the Equal Rights Amendment either become law or die in seven years is infinitely malleable by a simple majority, or that what “sex” meant in the text of that amendment in 1972 is binding on today’s infinitely expanding gender polyhedron.)

No, for the Bouies of the world, there is the Constitution and “values.” “Part of the long fight to expand the scope of American democracy has been an ideological struggle to align the Constitution with values that the constitutional system doesn’t necessarily need to function.”

Most people would call that “policy-making” and the process by which it is adopted “politics.” Once upon a time, people would also know that the policy-making process is constrained by the Constitution’s explicit text.

Not today.

For Bouie, those “values” are paramount: “We the People” did not “ordain and establish this Constitution.” We (not sure who besides Jamelle Bouie and the New York Times editorial page) adopted these undefined values.

Once, we tried to smuggle those undefined values, emerging from the gaseous penumbrae of liberal nebulae, into the Constitution through “substantive due process.” Since that project now appears dead, we need to give those values a standing of their own. And to measure the Constitution against them.

At different points in time, political systems of various levels of participation and popular legitimacy (or lack thereof) have existed comfortably under [the Constitution’s] roof. … [W]e’re beginning to see … that our constitutional system doesn’t necessarily need democracy, as we understand it, to actually work [emphasis added].

Not sure who Bouie’s “we” is. I assume he thinks it’s “we, the people,” though, in reality, it’s “we, the people who agree with Jamelle Bouie and his constitutional interpretations.” And if the Constitution doesn’t happen to guarantee the outcome we deem “democratic,” well…then perhaps we need to question the Constitution.

This from self-proclaimed “defenders of democracy” and self-anointed advocates of the “rule of law.”

Perhaps we might finally be as honest as the child who pointed out that these emperors are buck naked in their naked power-grabs. They’re arguably the “insurrectionists” whose undermining of constitutional order is deeply corrosive if less apparent.

Because they aren’t getting their way. How “undemocratic”!

John Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views herein are exclusively his.