Ezra Klein: Understanding The Constitution Is Hard
The Washington Post’s Ezra Klein spoke this morning on MSNBC about the 112th Congress and the Constitution:
The issue with the Constitution is not that people don’t read the text and think their following it. The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago.
I’ve expressed doubt about what I think is really just pointless Constitution fetishization by some on the right before, but Klein’s comment is basically just nonsense Yea, it’s true that the Constitution is not always easy to understand, but there are some things, like the limits on Congressional authority in Article I, Section 8 that are actually pretty easy to figure out. Unless you’re a guy like Klein who wishes there were no limits on the Federal Government to begin with.
Yeah, understanding the basic fundamentals of the authors is really hard, what with all their pretty much spelling it out for the reader.
Perhaps Ezra just needs a reading comprehension class or two.
Yeah, it’s really too bad that there weren’t any public debates about the Constitution and the Bill of Rights that were recorded at the time, especially by the people who drafted those texts.
Cf.: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” –John Roberts
Sometimes simple, unambiguous text is just simple, unambiguous text.
And sometimes a slick 26-year old pseudo-intellectual is just a slick, 26-year old pseudo-intellectual.
On balance, I’m beginning to disapprove of this reading-the-Constitution business.
Yes, Congress needs to be cognizant of the Constitutional limitations on its power. Yes, a symbolic gesture to that effect is pleasing. It will be of at least de minimis interest to see how many Members actually sit through this little exercise. I wonder, how many members will interrupt the reading to break into applause at particularly favored sections, they way they do the State of the Union speech?
But recitals are, in my opinion, ultimately damaging. Consider the Pledge of Allegiance — people are forced by law or peer pressure into reciting it, so often and so automatically, that they don’t ever bother to think about what it means, and recital of the Pledge is now a public litmus test which has become politicized nearly to the point of verging on partisanship.
I would much rather that people concerned with Constitutional power took the time to comprehend the Constitution rather than just recite it. After all, the Constitution will govern and limit Congress’ power whether or not Congress recites it and the Members are supposed to have read the thing already before assuming their role as Constitutional officers of the United States.
The full sentence ends with: “…and what people believe it says differs from person to person and differs depending on what they want to get done.”
And while it’s true that parts of the Constitution are pretty clear, other parts have been subject to a great deal of differing interpretations over the years. Look at the arguments over the general welfare clause or the varying interpretations of the second amendment, or the ways that the commerce clause has been stretched by both the left and the right (e.g. Gonzales v Raich) for examples.
Transplanted Lawyer – It’s not going to be a daily thing. It’s a symbolic one-time thing that doesn’t harm anyone.
ratufa – Too many “differing interpretations” were essentially dishonest ways of arriving at a predetermined end. Often justices have essentially ignored how the drafters and amenders of the Constitution understood the document; they claim inconvenient parts of the text are unclear to give themselves license to innovate.
The fact of the matter is, whether we like it or not, understanding exactly what the Constituion means is frequently a difficult process. This fact is made clear not solely by looking at contemporary debates, but by looking at the fact that there were debates over the meaning of the text by politicians who were contemporaries of it’s writing (often amongst actual Founders).
Further, whether we like it or not, application of the document hass to be done in the context of two+ centuries of practice and court decisions.
In all honesty, the fight over article I, section 8 is as much ideological on all sides as it is anything else.
“but there are some things, like the limits on Congressional authority in Article I, Section 8 that are actually pretty easy to figure out.”
Yeah, until you get to the Necessary and Proper clause…
“Too many “differing interpretations” were essentially dishonest ways of arriving at a predetermined end”
Yeah, yeah, blah, blah
“Yeah, yeah, blah, blah”
Wow, I never looked at it that way.
“The issue with the Constitution is that the text is confusing …”
Especially if you are a product of government schooling.
How have you looked at it? How, for instance, have you looked at some of the core concepts in the constitution on which the document is, really, silent? Where for instance, is the word ‘liberty’ spelled out in that document? Spelled out, that is, in such a clear way that no further questions about the liberty of citizens vis-a-vis government power need be adjudicated?
It seems pretty clear that the people who are making fun of Ezra, and claiming that only an ignoramus would find the Constitution to be confusing, are exactly the type of people who think that their opinions are simply a manifestation of absolute truth, and differing opinions are simply wrong.
The Constitution, or any other text (like the Bible for example) is perfectly straightforward – I will read it superficially, I will make a snap judgment about what it means, and you are a moron if you don’t agree. Whats complicated about that?
sam –
I looked at it by studying not just the text of the Constitution itself but the historical background and public debate on the Constitution (and Bill of Rights) around the time of ratification. There are some very good direct sources out there, like Bailyn’s “The Debate on the Constitution.”
It’s pretty thick stuff, but you’ll see quickly that this was a debate between (a.) people who wanted explicit guarantees of liberty and (b.) people who thought those explicit guarantees were unnecessary since the Constitution only granted limited, enumerated powers to the federal government, and in fact believed that enumerated rights would invite power-hungry people to read those rights as the only limits on government power. So, while there’s room for some disagreement, you can get a sense of the boundaries of that disagreement. The powers of the federal government today are way, way outside the realm of that debate.
I can provide some instructional quotes from the key figures in this, particularly Madison (the Father of the Constitution and also of the Bill of Rights). He helpfully explained the reasoning behind the text on many occasions. See especially his contributions to the Federalist (esp. No. 41, when he lambastes the opponents of ratification for trying so desperately to read specific powers into the General Welfare clause), his arguments when introducing the Bill of Rights (particularly the Ninth Amendment) and his statement upon vetoing the Bonus Bill.
@Bryan:
The problem is, however, even if one reads the document in question, there is still a substantial amount of room for debate in way that backs Klein’s assertion. There is also the pesky fact that the debate over what the constitution means did not end with ratification, but has been an ongoing exercise for two and a quarter centuries.
(And I write this with two volumes of the “Debates on the Adoption of the Federal Constitution” behind me and one to my left as well as a copy of the Federalist Papers and Madison’s “Notes on the Debates of the Federal Convention of 1787” amongst other things.)
“people who wanted explicit guarantees of liberty”
But the fundamental question remains: What does the word ‘liberty’ mean? The constitution is silent on that question.
Steven,
As I said, I agree there’s room for debate. My contention is that many people have chosen to ignore inconvenient parts of the legitimate room for debate.
If your debate two centuries later is entirely outside what were considered reasonable interpretations of the text at the time of passage, there’s a problem. Substantially changing the meaning of a constitution through “interpretation” rather than getting the supermajority required to amend the document undermines what makes a constitution useful in the first place.
-=-=-=-=-=-=-
Sam,
Liberty under the English tradition was understood to mean negative liberty. Powers and rights thus were mutually delineating. Note that the entire Bill of Rights is about what the government may not do: Congress shall make no law, the right of the people shall not be infringed, no soldier shall without consent, no warrants shall issue, no person shall be held, etc. The Ninth and Tenth Amendments are a catch-all maximizing those negative rights vis-a-vis the federal government.
“Especially if you are a product of government schooling.”
It must really burn your britches that your property taxes pay for that…
The Constitution has been analyzed and debated for more than two hundred years yet for that entire time most citizens have known little about it. Of course they didn’t need to since most questions regarding the Constitution are resolved in the courts by attorneys and judges.
The basic idea of the Constitution is not hard to understand even for the common rube. It’s the set of rules we follow for self governance. Like the rules of a game here are proper ways to change the rules (amendments) so when someone tries to change them differently we get upset and scream (judicial activism). It is not a fetish to want the rules to be followed.
Sometimes we get sloppy regarding how well we follow rules and the courts bring us back in line. Sometimes we even change those rules in with the correct mechanism. What we should not do is adjust the rules because they are old. Klein seems to want to discount the entire document merely because it’s old.
Of course his words are now being ridiculed near and far. Well done, once again he has opened his mouth and inserted foot. Why does anyone pay any attention to him?
“My contention is that many people have chosen to ignore inconvenient parts of the legitimate room for debate. ”
Which has nothing to do with the issue at hand. You are just making the standard government-minimalist argument. The question before us though, is whether understanding how the Constitution is to be applied is easy or hard. Given that the finest legal minds in the country have argued these points for over 200 years, and will continue to do so as long as Ol’ Glory waves, is all the answer that you need.
SP: “The basic idea of the Constitution is not hard to understand even for the common rube.”
Obviously. But also, obviously, that is not what we are talking about. We all can figure out that there are three branches of government, and that militia members have a right to bear arms. But what does, exactly, constitute cruel and unusual punishment? What does “necessary and proper” mean in any particular context? General welfare – is it easy to know what that does, or does not properly entail?
“Of course his words are now being ridiculed near and far”
No, just amongst the wingnut ankle-biters who are jealous of his smarts and his success and see a clear, cheap shot, with their usual clueless commentary.
Tano,
My point directly addresses what Ezra said:
“The issue with the Constitution is not that people don’t read the text and think they’re following it. The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”
Whether I’m making a “standard” argument is immaterial. If someone wants to lay down smoke, pleading invincible uncertainty without even researching the matter, an argument informed by study is an improvement.
For example, you ask, “General welfare – is it easy to know what that does, or does not properly entail?” Well, you’d know what the General Welfare clause refers to if you read Federalist 41 like I recommended, because Madison laid it down and slammed the critics for grasping at a more liberal interpretation.
If justices and activists were, in good faith, trying to apply the Constitution, and studied the debate on the Constitution, they couldn’t very well start interpreting the document to mean something that its drafters and signers agreed it did not mean.
And if we can’t provide enough evidence from the time of the Constitution’s (and its amendments’) passage to be reasonably assured that the document speaks to a novel issue, it seems to me that’s for Congress and the states to fix through amendment.
Actually Bryan, in Fed 41, Madison is arguing against those who fear that the General Welfare clause is a grant of unlimited power, and he argues that it clearly is not, since it uses the same formulation that was found in the Articles of Confederation, and it is followed in the text of the Constitution by the explicit grants of power that give meaning to the phrase.
That hardly gives us any clear guidance. No one that I know of argues for giving the federal government unlimited power., so Madison’s claim that the General Welfare clause is not unlimited is totally uncontroversial.
Tano,
I have had several long debates with people who thought the General Welfare clause gave Congress the power to pass any legislation that arguably provides for the General Welfare. It’s a very common misunderstanding — if anyone doubts me, just search “general welfare” on popular Lefty blogs like ThinkProgress and Daily Kos, perhaps in combination with “healthcare.”
A typical argument:
Dare me to find more examples.
And I’d say limiting the powers of Congress to a short enumerated list gives us plenty of guidance. Heck, it’s clear enough to highlight that many of the things the federal government does today are not contained within those powers.
@Bryan
It is of interest that the great expansions of individual liberty in this and the last century, for the most part, involved the curtailment of a state’s>/i> power over individuals, not the curtailment of federal power. And this curtailment was effected through the interpretation and application of federal constitutional principles to state law, e.g. Brown v. Board of Education, Gideon v. Wainwright, Loving v. Virginia, Lawrence v. Texas, Griswold v. Connecticut, Roe v. Wade, District of Columbia v. Heller….
Now, one can argue that some (or all) of those were incorrectly decided. What one cannot deny is that, for better or for worse, the liberty interests of individuals was advanced against the claim of state power in those decisions. “Congress [and the states via incorporation] shall make no law, well except for….” The history of civil rights litigation in modern times is the whittling away of the extension of the “except for”, is the expansion of the sphere of individual autonomy against the desire of the state to restrict it.
That’s why when I read things like this: “Too many ‘differing interpretations’ were essentially dishonest ways of arriving at a predetermined end”, I hear echoes of all the arguments against those and kindred decisions enhancing individual liberty. And perhaps it’s a failure to understand on my part, but I cannot help coming to the conclusion that someone making that claim is, in the end, being upset with the results of those decisions, coming down hard on the side of the state against the claim of individual liberty, all protestations to the contrary notwithstanding.
ah, sorry for the bad tagging.
Sam,
So you jump to the conclusion that I come down on the side of the state against individual liberty despite having no evidence that I place the powers of the states over the rights of the individual.
How fair would it be if I concluded that in your choice of cases I heard echoes of those who only care about the interests of Lefty victim groups and not about individual liberty as such, all protestations to the contrary notwithstanding? I mean, I couldn’t help but come to that conclusion, right?
Anyway, about those particular cases:
Brown v Board of Education applied the Equal Protection clause of the Fourteenth Amendment. Quite aside from the fact that I explicitly approved of the amendment process in this comment thread, have you seen me argue against the Fourteenth Amendment, or seen any evidence that I don’t favor equal protection under state laws? Indeed, I’m more insistent on keeping with the understanding of the people who drafted and passed the Fourteenth Amendment than most of the people who try to cite it in arguments with me.
You bring up Roe v Wade. I wouldn’t have mentioned that for a variety of reasons, starting with this: you’ll note that the <em<Roe v Wade decision made a point of saying that if the personhood of the unborn was established, the Fourteenth Amendment would specifically guarantee the fetus’s right to life. It’s only by rejecting the personhood argument that the Court was able to move on to its rather more controversial legal reasoning. You’ll find the Fourteenth Amendment is of at least equal use to the pro-life crowd.
I also wouldn’t have dragged Griswold into this. I think there’s a strong case to be made that privacy should not be conflated with liberty (I recommend The Transparent Society by David Brin) despite the fact that privacy measures have restricted the state in several ways I value.
In the Griswold decision, note how the legal reasoning here is exactly what Madison said he was trying to guard against when he introduced the Ninth Amendment:
See how the Court assumed that a right had to be enumerated in the text for them to protect it? That’s where my objections begin.
Respectfully, Bryan, I think you misread Griswold. The very next paragraph after the one you quote reads:
381 U.S. 479, 482-483. Justice Douglas praises and affirms the Pierce and Meyer Courts for protecting unenumerated rights.
In advocating for the Bill of Rights generally and the Ninth Amendment particularly, Madison argued:
Thus, by advocating adoption of the Ninth Amendment, Madison approved of a subsequent regime where courts would be actively engaged in searching for specific exercises of individual rights not previously articulated, and limiting the government’s ability to regulate, control, or punish activities within those liberties.
Of course, the next question is, “So what?” Madison was certainly a principal founder and I wouldn’t argue with the proposition that what was going on in his mind is of great interest in interpreting those portions of the Constitution he helped author. But I would argue that it is difficult to the point of impossibility to really understand the “original intent” of the hundreds of Framers — not just Madison, not just his fellow-Congressmen, but also the hundreds of members of the various state legislatures that ratified these amendments — and moreover it would be of only moderate importance to interpreting the Constitution today were we able to do so with confidence in our objectivity. By way of articulating an amendment process and by way of using broad, vague language pointing a generalized principles rather than specific articulations of how individual liberties were to be balanced against the effective exercise of governmental power, the Framers made clear to subsequent generations that we are supposed to figure out these kinds of issues for ourselves.
They intended that those dialogues include and, as the Ninth Amendment demonstrates, would often principally take place in, the courts. Courts have no choice but to address these issues when the government claims power to do a thing and an individual subject to that power claims a liberty interest to prevent the government from doing that thing. That is a live dispute that must be resolved and the Constitution explicitly gives the judicial power — the power to resolve disputes — to the courts. This not not necessarily mean that the courts’ pronouncements on that issue are the last word; not only may the Constitution be amended but new statutes may be passed and new methods of enforcement may be devised by the President to reach particular policy results. The balance of governmental power and individual liberty in a lawful and free but also ordered society is a dialogue between the several branches of government, between the several levels of government, and amongst the people generally.
I’ve decide to utilize my marginal bully pulpit in defense of what Ezra Klein was implying. He obviously was not clear enough, perhaps an analogy would do the trick :
Ezra Klein In The Cross-Hairs Of Right Wing Outrage
Transplanted Lawyer,
Only those implied by the enumerated rights. Read it carefully.
Excellent, you’ve quoted from exactly the materials I recommend. Note Madison’s caution in the preceding paragraph at the enumeration of particular rights:
Hence my argument that the Ninth Amendment (along with the Tenth) is a catch-all designed to maximize negative liberty!
It’s not hopelessly difficult to understand how the people of that time understood the words of the Constitution and the Bill of Rights. We’re fortunate that they kept a great number of documents, that they debated these issues, and that we know so much of the historical context.
If there had been utter confusion at the time about what the Constitution meant at the time of its ratification — no consensus whatsoever — that would be one thing, but it’s just not the case. There was a debate at the time, with some arguing that the Constitution gave too much power to the federal government and others assuring them that it did not do so, with extensive and eloquent explanations of their thinking. A fair reading may not give you a conclusive single interpretation of each word, but you can detect the bounds of the debate.
The fact that the Constitution is a bill of limited, enumerated powers is critical to interpreting how it should apply today. That is, if a constitution is of any use. Which leads me to the next thing you said:
Seems to me you’re leaving too much to be “figured out” in each situation. Big principles give you guidance so you don’t have to perform a fresh balancing act each time a seemingly new issue comes up. The Constitution prescribes particular ends toward which government power should be exercised, offers an amendment process if there’s a broad consensus to add to those powers, and leaves the rest to liberty. I see far more vagueness in the enumeration of certain rights (the Bill of Rights before the Ninth Amendment) than in the enumeration of powers.