Apparently unlike
Dahlia Lithwick and Jeff Shesol, I don't think there's a big "aha!" moment in the idea that some conservatives who supposedly revere the Constitution also want to amend it. After all, the Constitution itself does provide for being amended. There are some constitutional fetishists, I suppose, who think the document was divinely inspired and thus must never be touched. Most conservatives I know think, roughly, that the class of men who created the Constitution have never been equaled -- and that the document should be touched
rarely. Unfortunately, the rhetoric of our debates obscures even this small level of nuance.
That said, I agree with Lithwick and Shesol that this bit of information probably runs counter to the Founders' intentions:
It started quietly enough: In April 2009, constitutional scholar Randy Barnett published an op-ed in the Wall Street Journal offering proposals by which the Tea Party might amend the Constitution to "resist the growth of federal power." The most radical among them was an amendment permitting two-thirds of the states to band together and overturn any federal law they collectively dislike.
This week, completing the proposal's rapid march from the margins to the mainstream, Rep. Rob Bishop of Utah introduced the amendment in the U.S. House of Representatives, pledging to put "an arrow in the quiver of states." The soon-to-be House Majority Leader, Eric Cantor, said this week that "the Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around." Fawning editorials in the Wall Street Journal and chest-heaving Fox News interviews quickly followed.
What these conservatives want, it seems to me, is to return American governance to something much closer to pre-Constitution days, around the era of the Articles of Confederation. Under those articles, the United States was something less than a fully functioning nation and more like the United Nations security council, a collection of sovereign governments who could put the kibosh on anything one of them didn't like.
It didn't work. And the adoption of the Constitution may have represented a point when the multiple states decided they truly were a nation, that they had to cede some sovereignty to each other, rather than each being a kingdom unto itself. (Certainly, in reading The Federalist Papers, it's clear that the creators of the Constitution saw that as the choice.) It was the Antifederalists who wanted to continue the old ways of state primacy; and the emergence of this proposed amendment confirms my opinion that today's Tea Party set has more in common with the people who tried to stop the Constitution from becoming law than they do with the men who actually founded the country as we know it.
(It also confirms my continuing believe in the Tea Party as an expression of sore loserdom. We didn't see much talk about amending the Constitution to give states more authority when the GOP controlled the White House and Congress, did we? There may be some principled beliefs at work here, but it seems to me that the amendment is also the result of efforts by the Republican Party to claim power however it can.)
If giving states a stronger voice at the federal level is the main goal, I think it might be better if another suggestion were adopted:
To return to the practice of having U.S. senators appointed by their state legislators instead of being popularly elected by the citizenry of the states where they serve. I'm not certain how much that would change the dynamics of Capitol Hill -- except, maybe, to make U.S. senators more appointed to the political elites of their states instead of the citizenry at large. Certainly, there are plenty of examples of bad-idea programs continuing because a powerful senator comes from a coal state or a farm state or whatever, so it's not like these guys aren't thinking of their states when they're in Washington. I don't think it's a
great idea, in other words. But it seems to me returning to the way it was originally done does less violence to the overall construction and intent of the Constitution than outright giving the states veto power. And hey, do we really need to popularly elected houses of legislative government? What's the point of
that?
Giving the states veto power runs contrary to the Founders' vision; from that standpoint the proposal really does belie the idea of conservatives as somehow more faithful to that vision. And I suspect that clearing the way for smaller federal government, what it will do is add an entirely new layer of bureaucracy and politics to our public life. Instead of voting for congressmen to represent our interests in Washington and governors to take care of stuff at home, we'll start having to include national politics in our calculations of whom to vote for for state senator. Giving the states more federal power, in other words, might blur the lines between the two forms of government and make a
real hash of things. So it's not just an anti-Constitutional proposal; it's probably also a bad one.
