The News Journal committed actual acts of journalism this weekend and published a long article on the various interpretations of the Constitution. In the article, one professor describes the effect of what the Teapublicans want when they say they want to return to the “original” Constitution.
While a strict reading of the Constitution might accomplish the goal of eliminating health care reform and cap and trade, it would also have other consequences.
“First, we would have to abolish the United States Air Force,” Powe said. “We would be down to an Army and a Navy.”
After that, he said, a free press would be limited to newspapers. Free speech would cover treason and perjury, and illegal search and seizure would apply only to buildings.
The literal Constitution also doesn’t take into account technology, Garfield said, so the federal government would have to eliminate NASA and the Federal Aviation Administration. He added it would also mean the elimination of the Department of Education, the Environmental Protection Agency and a host of other agencies.
“It would be very disruptive to ignore those practices,” Tushnet said. “I don’t mean to say that disruption is a bad thing, but it would unsettle things a lot to go back.”
Teapublicans like Christine O’Donnell believe they are the only people qualified to tell us what the Constitution means. In the Widener debate, O’Donnell got herself in trouble by trying to go for a kill over literal words in the Constitution – it doesn’t actually say “separation of church and state.” Separation of church and state is how the courts (all the way back to very early days) have interpreted the meaning of the establishment clause. There are many words that aren’t literally in the Constitution like “freedom of religion.” There’s actually nothing in the Constitution about keeping a handgun in your home – that comes from court interpretation of the meaning of the 2nd Amendment.
The most vocal Constitutional “originalist” is Antonin Scalia (and his silent pal, Clarence Thomas). Allan Loudell actually asked a great question of Christine O’Donnell in the Widener debate. The question was about Scalia’s words that the 14th Amendment was not intended to apply to women (the intention in his view was that it only applied to African Americans) so women therefore aren’t protected Constitutionally from discrimination. Loudell asked O’Donnell how she reconciled her admiration for people like Scalia with her own lawsuit for sex discrimination against a former employer. O’Donnell pleaded ignorance.
The heart of the matter is that most people don’t want to return to the originalist Constitution if it means that it will roll back a lot of the protections that we have gained in the last 250 years. There’s not only the Air Force but also things like Social Security and Medicare that are some people’s only source of income. I dread the thought of 70 new Antonin Scalias joining the next Congress. It will be a huge fight to keep the benefits we’ve already gained through many years of fights.