February 2, 2013

Sometimes I think we should chisel Teddy off of Mt Rushmore...

This is a great piece I meant to blog long ago. From National Affairs, The Saviors of the Constitution:

...The truth, however, is more kind to the Tea Party. Hardly a symptom of hopeless confusion, the Tea Party's willingness to use the means of democracy to address the problem of democracy and its relationship to the Constitution is an important first step toward recovering that document from the Progressive opprobrium beneath which it has labored for more than a century. For as the Tea Party senses, Progressivism acquired for itself an unfair advantage when it linked the notion of constitutional legitimacy to the cause of unlimited government powers in the name of democracy.

There is another view of the Constitution -- a view closer to that of the founders, that arose in defense of the Constitution against the Progressives, and that finds no contradiction in the notion of a constitutionally limited or constrained democracy. It was articulated with great subtlety and depth a century before the Tea Party, in a debate that prefigured many of the issues that now confront our country.

The year 2012 marks the 100th anniversary of the American presidential election in which this very conflict of constitutional visions played a central role. And by revisiting the issues of the election of 1912 -- in particular the contest for the Republican presidential nomination between William Howard Taft and Theodore Roosevelt -- we may come to appreciate the coherence of a popular effort to restore limits on the popular will....

...Nothing illustrates Roosevelt's radical constitutional program better than his proposal for the recall of judicial decisions. Roosevelt was the foremost national champion of that idea, and he devoted almost a third of the "Charter" speech to it. When a judge decides "what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong," Roosevelt maintained. This form of recall -- applied in his initial formulation to the review of state supreme-court decisions -- would allow the people at large to override the "monstrous misconstruction of the Constitution into an instrument for the perpetuation of social and industrial wrong and for the oppression of the weak and helpless." Since the "power to interpret is the power to establish," Roosevelt argued, "if the people are not to be allowed finally to interpret the fundamental law, ours is not a popular government."

Roosevelt was fully aware that the power to recall judicial decisions in fact amounted to the power of a majority to change the fundamental meaning of the Constitution, circumventing the cumbersome amending procedures of Article V. "Whether [recall of decisions] is called a referendum to the people or whether it is called a shorter and simpler way of amending the Constitution, to my mind matters nothing," Roosevelt explained. "The essential thing is to get the power to the people." The reason, he added, was that the "people themselves must be the ultimate makers of their own Constitution."...

I'm sure I don't have to spell out what the problems are with that idea.

Posted by John Weidner at February 2, 2013 4:12 PM
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