Constitution: An Invitation to Struggle

Like it or not, the U.S. Constitution has always been a political document, evolving depending on the players on the stage.

Ezra Klein’s declaration that the Republican plan to require citation of Constitutional authority in new legislation is “a gimmick” because it was written in a different age and has no binding power caused much head shaking, including here at OTB, and some outright ridicule.  But, while we disagree at the margins, he’s substantially right.

In a posting seeking to clarify, correctly conceding that “when a lot of people misunderstand you at once, the fault is usually yours,” he explains:

Asked if it was a gimmick, I replied that it was, because, well, it is. It’s our founding document, not a spell that makes the traitors among us glow green. It’s also, I noted, a completely nonbinding act: It doesn’t impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.

The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn’t. That’s bunk, of course: It’s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it. And they tend to disagree about it in ways that support their political ideology. I rarely meet a gun-lover who laments the Second Amendment’s clear limits on bearing firearms, or someone who believes in universal health care but thinks the proper interpretation of the Commerce Clause doesn’t leave room for such a policy.


So if I was unclear: Yes, the Constitution is binding. No, it’s not clear which interpretation of the Constitution the Supreme Court will declare binding at any given moment. And no, reading the document on the floor of the House will not make the country more like you want it to be, unless your problem with the country is that you thought the Constitution should be read aloud on the floor of the House more frequently.

And, no, he’s not walking back his assertions in face of criticism.  See his post “What the tea party wants from the Constitution” from several hours earlier:

Most legislation doesn’t currently include a statement of constitutional authority. But there’s one recent measure that did: Section 1501 of the Patient Protection and Affordable Care Act. That is to say, the individual mandate.

“The individual responsibility requirement provided for in this section (in this subsection referred to as the requirement) is commercial and economic in nature, and substantially affects interstate commerce,” reads the opening paragraph. Shortly thereafter, the legislation makes itself more explicit: “In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.”

Has that statement convinced the GOP that the individual mandate is constitutional? Of course not. Currently, two judges have ruled in favor of the provision and one judge has ruled against. The split has been clean across partisan lines.


But as the seemingly endless series of 5-4 splits on the Supreme Court shows, even the country’s most experienced and decorated constitutional authorities routinely disagree, and sharply, over what the text means when applied to today’s problems. To presume that people writing what they think the Constitution means — or, in some cases, want to think it means — at the bottom of every bill will change how they legislate doesn’t demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe.

In the comments of yesterday’s OTB thread, Steven Taylor says much the same:

The fact of the matter is, whether we like it or not, understanding exactly what the Constitution 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 its 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.

When I was studying Constitutional Law a quarter century ago, we used a book by Craig Ducat and Harold Chase called Constitutional Interpretation.   Despite being a thick tome, already in its 3rd edition, a mid-year supplement was necessary to account for new landmark Supreme Court cases.  [The book, now by Ducat alone, is currently in its 9th edition.  It’s now a two-volume set!]  And the authors were clear:  There really is no such thing as “Constitutional law.”  The Constitution is, as a practical matter, an evolving document depending on the composition of the sitting Supreme Court and the interpretation over the years by their predecessors.  Or, as the late Justice William J. Brennan famously put it, the Supreme Court operates on “the rule of 5” — that “It takes five votes to do anything around here.”  More cynically put:  The Constitution means whatever five justices say it does.

My current favorite resource for these matters, familiar to regular OTB readers, is FindLaw’s Annotated Constitution.  It includes every word of the original Constitution and its 27 amendments.   Which, for those who haven’t looked at it in a while, is incredibly short.  Each passage is then connected via hyperlinks to long, discursive footnotes describing the evolution of Supreme Court decisions interpreting said passages.   Mere clauses of sentences expand into multi-page discussions, themselves hyperlinked to various cases.  And, I would add, the FindLaw crew is quite concise and frugal, hitting only the truly key cases.  For all practical purposes,  this “annotated” Constitution, not the short version that people can carry around in their pockets, is the supreme law of the land.

The political scientist Edward Corwin famously said of American foreign policy that the Framers had provided “an invitation to struggle” among the three branches of government.   Even if we just take the war-making power, we see that the president is the commander-in-chief of the armed forces and appoints senior officials; the Congress declares war, raises the army and navy, and provides funding; the Senate confirms relevant cabinet officials, general and flag officers, and ratifies treaties; and the Supreme Court has original jurisdiction on several relevant matters.   It is by no means clear where these powers leave off and the others begin.  Over time, presidents have assumed primacy in this struggle, essentially abrogating to themselves the power to send the nation to war.  Some argue that this is “unconstitutional” and “contrary to the wishes of the Framers.”  But recall that George Washington, Thomas Jefferson, and James Madison all pushed the envelope on presidential power in this realm during their presidencies.

In reality, while my reading of the Constitution is considerably more narrow than Ezra’s, the fact of the matter is that the entire document — not just its portions related to international relations — amounts to an invitation to struggle.   Politicians pass laws that they can get through our system and hope that the Supreme Court will let them get away with it.   And it’s been like that since the very beginning.

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. I think the general glee over Klein’s statements weren’t over his “misunderstanding” of the Constitution’s role. Once the clip was posted by College Politico for all to see, I could see a veiled frustration, one that is common among Progressives, that the Constitution is hard to circumvent. In this is he no different than other Progressives who’ve come before him.

  2. sam says:

    ” could see a veiled frustration, one that is common among Progressives, that the Constitution is hard to circumvent. In this is he no different than other Progressives who’ve come before him”


  3. Rock says:

    Isn’t it interesting that the Constitution was written on what, four pieces of parchment and people still debate its meaning or understanding it, and that congress can now pass new laws that are thousands of pages long that nobody read before passing and don’t know what’s in it?

    I guess that understanding of the Constitution depends on what color of rose-colored glasses one wears.

  4. sam says:

    “Isn’t it interesting that the Constitution was written on what, four pieces of parchment and people still debate its meaning or understanding it”

    No, it is not interesting.

  5. James Joyner says:

    @Rock and @Sam

    Not shocking that a broad outline for how government should operate is shorter than a very complicated piece of legislation.

  6. PD Shaw says:

    Frankfurter said the “most important, single sentence in American Constitutional Law” was Justice Marshall’s “It is a Constitution we are expounding,” that is, it;s “not an insurance clause in small type, but a scheme of government formulated in 1787, got under way in 1789, but intended for the undefined and unlimited future.”

    That said, it’s unfortunately narrow-mind of Klein to think it has little relevance today.

  7. sam says:

    I meant not interesting since that broad outline was originally fashioned for a nation of 13 states with a population of less than 4 million and now has to guide a nation of 50 states with a population of over 300 million. It’s be shocking if there were no debates about the meaning, etc.

  8. sam says:

    I didn’t read Ezra that way, PD.

  9. steve says:

    Ezra made the mistake of trying to engage in intelligent, nuanced discussion. No one has a monopoly on the correct interpretation of the Constitution, though many would like to think they do. The Constitution is written so that the final say on what it means is determined by the SCOTUS, the 5 justices referred to above. Since ideology dictates interpretation, the meaning of the Constitution will always change.


  10. 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

  11. anjin-san says:

    > No one has a monopoly on the correct interpretation of the Constitution, though many would like to think they do.

    That is simply not true. Only people who watch Fox News can interpret the Constitution correctly. Just as only people that watch Fox love America and their families. Just ask Jayvie.

  12. Zelsdorf Ragshaft III says:

    Agents of Marx such as Klein and Anjin must question what the document says to weaken it. The Supreme court was not to decide what the Constitution says but rather if legislation fits within the confines. This is what happens when you let interpreters decide what something written in plain English says. People like Francis Fox Piven are allowed to write seditious views as well as teach them in our colleges all paid for by our tax dollars just shows the founders never intended for the Federal government to have the power it currently has as they expected the citizens to use that which the second amendment gave them which was the power to throw off the yoke of the central government when that yoke becomes a burden. When a Supreme Court says it is OK to stop, at check points, all cars to see if the drivers who are legally authorized to operate those vehicles to check to see of the drivers might have been drinking, which ignores 4th amendment guarantees we are in trouble. Ezra Klein is a shill and should be treated as such. I think we need a house committee on un american activities.

  13. Zelsdorf Ragshaft III says:

    Anjin, if you watched Fox news rather than just demeaning it, you would have grounds to stand on. Who fills the position Alan Combs fills a Fox is there on CNN. Oh, thats right. They are all like Alan Combs on CNN. At MSNBC, CBS, ABC and NBC they are all left of Alan Combs. Your problem Anjin, is you do not what to hear truth if it disagrees with what you want to believe. That is true of what Ezra Klein had to write and speak about concerning the Constitution. It is only confusing when you do not like what it has to say. Only to those who what government to contol every aspect of our lives, save for abortion, is this document confusing. Klein somehow thinks the people in the second amendment are somehow different from those in the first or that you must be in a militia to have the right of self defense. Sounds to me like you just want to take away my power to resist you.

  14. wr says:

    Zels — Eric Erickson is on CNN, along with a flotilla of other conservatives. Pat Buchanon and former Republican congressman Joe Scarborough are on MSNBC. Alan Combs is no longer on with Hannity.

    Just when I think your level of ignorance can no longer astonish me, you come up with another doozy.

    By the way, you should read the first half of the second amendment one of these days. You’ll be surprised what it says.

  15. I see anjin-san is competing with Michael Reynolds for butthead of the month.

    Ezra Klein is a fine example of the prgressive mindset where young (and not so young) people are so sure of themselves they they feel they have the right to tell other people what they must do and how they must live their lives.

    I have news for them though, the US Constitution was written to assue that we common folk do not have to live our lives by their leave. I know that they don’t like that, but the coffehouse commisars should be accustomed to a little disappointment..

  16. anjin-san says:

    > I see anjin-san is competing with Michael Reynolds for butthead of the month.

    Ezra Klein is a fine example

    Charles, could you show where I even mentioned Klein? I am sorry, but your are simply ranting.

    As for Fox, I actually spend more time on than do on what zels would refer to as “lamestream media”.

  17. anjin-san says:

    > people are so sure of themselves they they feel they have the right to tell other people what they must do and how they must live their lives.

    Should we take that to mean that you are pro choice and pro gay marriage?

  18. Ben Wolf says:


    The Constitution wasn’t written fo the “common people”. It was written for wealthy, white, well educated men: in other words for people just like the founders. Over the last two hundred years the progressive movement has fought to extend those privileges (with conservatives on the wrong side every step of the way) to everyone else.

    Is that not what really bothers you?