Jonah Goldberg Knows A Lot About Cliches, But Not How Progressives Think About The Constitution

Blog ››› ››› DAVID LYLE

Jonah Goldberg's recent Washington Post op-ed on five "cliches" that he imagines progressives employ misses badly on many scores, but none so wildly as when Goldberg turns his attention to the Constitution. As is his wont, Goldberg picks a fight with a straw man -- that progressives embrace a "living constitution" completely divorced from the document's text and history -- and suffers a technical knockout at the hands of even this feeble opponent.

Goldberg attempts to tar progressives with hypocrisy for basing their opposition to conservatives' post-9/11 overreaching on civil liberties on the text, history and principles of the Constitution. Even if conservatives were, as he breezily puts it, "stretching things," supposedly unprincipled progressives had no grounds for complaining. With this crude caricature, Goldberg gives away the game.

There is in fact a real debate about what the Constitution means and how to interpret it. On the one hand is what a leading scholar has called the "fundamentalist" view, held by many of Goldberg's fellow conservatives, that the Constitution should be "strictly construed" in a narrow manner that if applied in the past would have rejected much of the progress the nation has made toward justice. Under this view, the Constitution has nothing to say about segregated schools, bans on interracial marriage and blatant gender discrimination.

The opposing view, first and perhaps best expressed by Chief Justice John Marshall, himself a signer of the Constitution, is that the document's open-ended provisions (such as "due process" or "freedom of speech") should be read to give meaning to the principles they embody. In one of his most important opinions, he wrote that "we must never forget that it is a Constitution we are expounding."(emphasis in orginal) By this he meant that the Framers did not intend the Constitution to be so detailed as to spell out definitive answers in every possible situation, but rather to establish principles to be applied to address specific questions.

In this view, the Constitution's words, its history and the principles it embodies are all important in determining its meaning in particular cases. As Pamela Karlan, a leading progressive constitutional scholar has written:

[T]he Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.

There is a real debate to be had about these competing constitutional visions. Unfortunately, Goldberg's game of "I know you are; now what am I?" contributes nothing of value to it.

Posted In
Justice & Civil Liberties
The Washington Post
Jonah Goldberg
Courts Matter
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