by Matt Barr

You're looking particularly constitutional today

A delicious example of what's wrong with constitutional jurisprudence today will be kicking off Friday when the Supreme Court has scheduled Igartua v. U.S. for its conference to decide whether to hear an appeal from a decision of the First Circuit in August. The series of lawsuits brought by U.S. citizen and Puerto Rico resident Gregorio Igartua culminated most recently when his claim of a constitutional right to vote in presidential elections was denied by the Circuit court. The court en banc said:

The constitutional claim is readily answered. Voting for President and Vice President of the United States is governed neither by rhetoric nor intuitive values but by a provision of the Constitution. This provision does not confer the franchise on "U.S. citizens" but on "Electors" who are to be "appoint[ed]" by each "State," in "such Manner" as the state legislature may direct, equal to the number of Senators and Representatives to whom the state is entitled....

Puerto Rico -- like the District of Columbia, the Virgin Islands, and Guam -- is not a "state" within the meaning of the Constitution. Puerto Rico was not one of the original 13 states who ratified the Constitution; nor has it been made a state, like the other 37 states added thereafter, pursuant to the process laid down in the Constitution. Nor has it been given electors of its own, as was the District of Columbia in the Twenty-Third Amendment.

Internal cites omitted. Don't assume what the Constitution says is "readily answered!" This case was brought to mind this morning by a post on one of my favorite blogs, Scott Adams' Dilbert Blog. Today Adams suggests that anything that 66.7 percent of the country would agree on should automatically be considered "constitutional," on the theory that "two-thirds of the adult citizen population would be enough to amend the constitution, assuming they all voted and lived in the right places."

I keep hearing the argument that some things are constitutional while other things are not. The idea is that we should be in favor of all the things that were decided over 200 years ago by a bunch of slave-owning cross-dressers who pooped in holes. (Those so-called constitutional things we consider “right.”) And we should be against anything else regardless of our common sense and current knowledge. (Those so-called non-constitutional things we should consider “wrong.”) This bothers me because the hole-poopers didn’t intend the document to be used as a substitute for thinking.

I know this isn't a serious scholarly proposal -- some of the verbiage gives that away, like "non-constitutional" -- but it reflects some seriously pervasive misapprehensions about the role of the Constitution, some shared by Gregorio Igartua.

The Constitution doesn't enshrine all the policy preferences of the Founding Persons, other than things like the elements of the crime of treason, which was kind of important to get out of the way at the outset so political opponents of the people in power weren't rounded up and jailed. Instead, it built a framework which allocated responsibility for implementing future policy preferences.

There is almost nothing "our common sense and current knowledge" can't get away with under the Constitution if we just go to the right place. The Constitution might say that place isn't the federal government, but (except to the extent the powers not prohibited by the constitution to the states are prohibited by the constitution to the states) in that case it's probably the state government. If your state laws or constitution get in your way, well, then you've got a problem, but not with the Founding Persons.

This isn't some semantic game of hide the constitutional ball. If the Constitution doesn't authorize Congress to do something, like, say, mandate we all drive 55, but you want a 55 MPH speed limit, it doesn't mean a 55 MPH speed limit is "unconstitutional" and you're out of luck, it means your state has to pass it. (Which they will, if Congress strong arms them into doing it by threatening to withhold federal highway funds.) Most, certainly not all, and certainly not the most high-profile, "unconstitutional" things are things the Constitution doesn't authorize one or the other or any branch of the federal government to do. (There's a daunting body of cases centering around whether the states are prohibited from doing things, like, say, regulating abortion, too. But again, you would probably be pleasantly surprised how few sensible, productive things the Constitution simply outlaws anywhere in the United States.)

Now, your common sense might dictate that we try George W. Bush for war crimes and pick a new President immediately, and you're right, that's not allowed. There are exceptions to the rule that you can do whatever you want, but I think you'll find they are surprisingly few. Among them is that you don't have the right to vote for the president simply by virtue of being a U.S. citizen.

Which brings us to the other misconception, that we've bastardized the Constitution till it's now a "substitute for thinking," which it wasn't supposed to be. No, it wasn't supposed to be a substitute for thinking, insofar as it wasn't supposed to be this immutable thing that became increasingly irrelevant and antiquated as time passed and progress marched on. The Founding Persons cleverly provided a way to amend the Constitution if most people thought it needed to be changed. Adams gets that, even if Igartua doesn't, but we live in a time when amending the Constitution has normally been unnecessary, thanks to the Great Court of Make-Believe.

Sensible people, skeptical of rule by four out of five experts, have allowed themselves to be painted into a corner where there are two choices, one, the Constitution is a living, breathing document that can change with the times, and two, it has to stay exactly the way it was in 1787. Well I, as a neutral observer, know which side I'm on, then! But here's the catch: The living and breathing the document does is when wise, just, compassionate, liberal people on the Supreme Court decide what it should say and enforce it as though it already does.

The Constitution is a living document, in the sense that we can change it if we want to. It's hard -- pity party for you! Awwwwwww -- but it should be, so that we're not ratifying new amendments every time an opinion poll comes out, or every time you get some new fool idea. It's when we don't change it but act like we did that we run into tyrannical, undemocratic, idiotic trouble.

When last we visited Puerto Rico here I said:

In 1961, the 23rd Amendment was ratified, granting District of Columbia residents the right to vote in presidential elections. If it hadn't been, sometime in the last 35 years or so someone would have gone to federal court to argue that the constitution already guarantees D.C. residents the right to vote in presidential elections, without the necessity of actually amending the constitution. (The same if true of the 25th Amendment's guarantee of the right to vote in federal elections to citizens 18 years old and older.) But in the dark ages of the late 1950s and early 1960s, before Roe v. Wade etc., everyone signed on to the proposition that if the constitution didn't permit something, the constitution had to be amended. How quaint!

We see this change in inane lawsuits like Igartua's and blog posts like Adams'. It's our fault. When Congress makes noise about amending the Constitution it's to make a rule it tried to make but the Supreme Court said was unconstitutional. It's on the right track, but the amendment process isn't an appellate process, and this "I'll show you!" mentality doesn't paint it in the prettiest light. It looks like sour grapes.

So why is it our fault? Because we should be having discussions over how and whether to change the Constitution all the time. Thomas at Liberty Corner does, which is very cool, whether you're on board with all his sections and clauses or not. We don't need Congress -- if enough states want to debate an amendment to the Constitution, Congress "shall call a convention for proposing amendments" -- not "may" or "is urged to" or anything, "shall," and then can take a seat till we call and tell them what we came up with. (This is a way you could actually amend the Constitution to the detriment of Congresspersons, which otherwise might be a hard slog.)

Instead we get lawsuits insisting the Constitution doesn't need to be changed, it already says things it doesn't. Thanks a lot.

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