Recently, Washington Post blogger Ezra Klein created an Internet kerfuffle by stating on MSNBC that the Constitution is “hard to understand,” suggesting that it is a poor guide for making public policy.
On his blog he reiterated the clear implication of his words: Because the Constitution is old it is of limited utility. Klein makes this argument to belittle congressional Republicans who are demanding that all legislation contain a statement regarding the constitutional justification for the bill.
Klein is working within the liberal-progressive tradition with which he is openly sympathetic. Early progressives defined themselves by their antagonism to the Constitution. Woodrow Wilson, for example, declared that there “never was such a government” of “laws not men.”
Wilson argued, “The times seem to favor a centralization of governmental functions such as could not have suggested itself as a possibility to the framers of the Constitution.” Political scientist Sidney Pearson concludes that for Wilson the Constitution represents “a problem to be overcome for the realization of democracy rather than as a promise to be fulfilled.”
Herbert Croly, another early progressive, chafed at what he called the “unquestioning obedience” to “The Word,” meaning the Constitution. Croly and Wilson disliked the Constitution because it limited the power of government, hampering their desired centralization of power in the federal government.
It is no accident that their intellectual posterity, Franklin Roosevelt, called for “bold and persistent experimentation” in government. Roosevelt himself found the limitations of Constitution tiresome, going to the lengths of attempting to pack the Supreme Court with cronies who would endorse FDR's aspiration for a nearly boundless federal government.
He would get this endorsement in 1942, when a Roosevelt-influenced Court, in Wickard v. Filburn, ruled that farmer Filburn's wheat production constituted interstate commerce and was thus open to federal regulation, even though Filburn used his wheat only to feed his chickens. But because wheat is a national market, the court reasoned, the very fact that Filburn did not sell his wheat affected the price of wheat for everyone. So even though Filburn did not transport his wheat, thus it wasn't interstate and he didn't sell it, thus there was no commerce, he was involved in interstate commerce.
By this definition anything can be commerce and can be regulated by the federal government, giving us, in principle, unlimited government. This is the opposite of what the Framers intended. As James Madison wrote, the powers of the federal government must be “few and defined.”
But this is not the progressive view. In her Senate confirmation hearings, Obama Supreme Court nominee Elena Kagen couldn't bring herself to say that the federal government lacks to power to dictate the diet of citizens. When asked about the constitutional justification for health care reform, outgoing House Speaker Nancy Pelosi contemptuously replied, “Are you serious?”
The Framers believed that an unlimited government is a threat to our liberties, thus the need for government to “control itself,” as Madison put it. Apparently some need to be reminded, as John Adams wrote, that we are a government of laws, not men.
Jon D. Schaff is associate professor of political science at Northern State University in Aberdeen. The views presented here are the author's own and do not represent those of Northern State University.
