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Should the Constitution be conserved or amended?

By W. James Antle III
web posted April 15, 2002

I often receive letters and phone calls from conservative organizations looking for money. Not long ago, I got a call from a conservative Christian group that wanted me to donate money to promote something called the "religious bill of rights."

The caller read through a litany of liberal indignities apparently inflicted on public school children and others seeking to practice their faiths in the public square. Then I was informed of the innocuous activities the religious bill of rights would protect and the policies it would support, all of which struck me as perfectly reasonable. I just wondered what was wrong with the original Bill of Rights.

A few years back organizations like the Christian Coalition were promoting a religious freedom amendment. Rep. Ernest Istook (R-OK) was its primary congressional supporter. There was nothing wrong with this proposed amendment's content. But the fact of the matter was that it was only "necessary" because of judicial rulings that reinterpreted the Constitution in ways that would have made it unrecognizable to the Framers. Aside from its specific prohibition of churches being set up by individual states, rendered moot by the Fourteenth Amendment, it basically was just a restatement of how the First Amendment had been interpreted until 1962.

One of the things conservatives are supposed to want to conserve in the United States is the Constitution. Yet conservatives are constantly proposing constitutional amendments, John Ashcroft being a perfect example during his Senate tenure. Some of these amendments would probably be good, like the balanced-budget or tax-limitation amendments; others would feel good, but probably have a less desirable effect, such as the flag-burning amendment.

Conservatives continually try to battle judicial usurpations of power and liberal rewriting of the Constitution with new constitutional amendments. Did Roe v. Wade find the abortion laws of all 50 states, from the strictest to the most liberal, unconstitutional with barely a scintilla of serious constitutional reasoning? It must be time for a human life amendment. Did the Supreme Court kick prayer and the Bible out of schools? Time for social conservatives to promote a school prayer amendment. Did liberal judges mandate harebrained forced busing schemes that ruined schools for children of all races? Time for an anti-busing amendment. And so on.

This highlights the problem of conservative constitutional amendments. They seek to undo each liberal offense against the Constitution piecemeal while ignoring the root cause of the problem. The real problem is that the federal government operates under an imaginary version of the Constitution. Rather than heeding such anachronisms as original intent and the plain language of constitutional text, policies are justified by court decisions that are, as Yale Law Professor John Hart Ely once said of Roe v. Wade, "not constitutional law and give(s) almost no sense of an obligation to try to be."

But isn't it simplistic to adhere to a Constitution written by dead white males over 200 years ago? Doesn't the Constitution "evolve" or "grow?" Certainly, the Constitution isn't the conservative or libertarian manifesto that some today make it out to be - just ask Murray Rothbard in the 20th century, Lysander Spooner in the 19th and the anti-Federalists at the time the Constitution was being ratified - and there was even disagreement over intent and interpretation among the Founding Fathers. Yet arguing that the words of the Constitution have no fixed meaning is tantamount to arguing that we have no Constitution; a Constitution serves no purpose if the branches of government it is supposed to limit can define their own powers.

Have you ever noticed that the "growth" of the Constitution is almost always in the liberal direction? The Fourteenth Amendment can be interpreted as mandating, say, welfare benefits to illegal immigrants, but the Thirteenth Amendment prohibition against involuntary servitude never is used to abolish the income tax - or, for that matter, the practice of American taxpayers being forced to subsidize welfare payments to illegal immigrants. The First Amendment "grows" to protect topless dancing while the Second Amendment, Ninth Amendment and Tenth Amendment all contract.

The common thread of all this is that there are many judges and constitutional law "experts" who believe, or at least pretend to believe, that the Constitution mandates the liberal agenda. Columnist Joseph Sobran has commented on this at some length over the years, writing on the occasion of honest liberal constitutional scholar Raoul Berger's death, "He respected the Constitution too much to pretend, as most liberals do, that it was a 'living document' whose meanings could be manipulated for convenience. All law requires scrupulous rigor of interpretation - especially constitutional law. Otherwise it isn't law, but whim."

Only by combating this viewpoint can conservatives begin to erode what decades of liberal court rulings have wrought. A good start would be using the Congress' constitutional authority to reign in federal courts' jurisdiction and making good on President Bush's campaign promise to appoint "strict constructionists" to the judiciary. Another might be for conservatives to become more rigorous about heeding constitutional strictures in their own exercise of legislative and executive power.

This strikes many conservatives as too difficult, as wishful thinking and bad politics. But the reality is that their approach of trying to amend the Constitution to make it harder to reinterpret or enact their own policy preferences is futile. It does not make sense to add new amendments to the Constitution in order to get it back to how it had always been interpreted before. Nor do any of these amendments ever go anywhere. Even popular conservative amendments fail, like the balanced budget and flag-burning amendments. Liberals don't fare much better trying to amend the Constitution most of the time - witness the Equal Rights Amendment. The Founders' set a very high bar for amending the Constitution. If liberals get around it by amending it indirectly via the courts, the only plausible conservative solution is to fight harder to prevent them from getting away with it.

Conservatives who support adding all these amendments to the Constitution are normally well intentioned. They just don't have a whole lot to show for their efforts. Maybe it is time to rethink their strategy.

W. James Antle III is a senior writer for Enter Stage Right.

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