Balkinization: George Will's Partial Constitution

George Will's Partial Constitution

David Gans

Efforts to reduce the Constitution to one principle usually end up oversimplifying our nation’s fundamental charter, mangling it in the process. So is the case with George Will’s recent column for the Washington Post, which argues that “progressives are wrong about the essence of the Constitution.” Will claims that progressives go astray by reducing the Constitution to “democracy,” a word that Will emphasizes appears neither in the Constitution nor in the Declaration of Independence. In Will’s view, the Constitution is fundamentally about the protection of “natural liberty,” and the need to place limits on the right of democratic majorities to infringe the personal liberty of all Americans. No one doubts that this is a core aspect of the Constitution and, contrary to Will’s simplistic attack, I don’t know of a single progressive who would disagree. But Will fails to grapple with the whole Constitution.

There is much to like in Will’s discussion of personal liberty. Will properly recognizes that the story begins in the Founding era, with the Declaration of the Independence and the Constitution, but does not end there. After all, it was the Framers of the Fourteenth Amendment who made birthright citizenship a constitutional guarantee, provided constitutional protection for all the fundamental rights of Americans (called in the text “privileges and immunities”), and wrote equality into the Constitution for the first time. It was not until ratification of the Fourteenth Amendment that the Declaration’s twin ideals – protection of inalienable rights and equality – were reflected in the Constitution’s text. For good reason, its Framers called the Fourteenth Amendment the “gem of the Constitution” because “it is the Declaration of Independence placed immutably and forever in our Constitution.”

No matter what Will says, the real disagreement between progressive and conservative constitutionalists isn’t over whether personal liberty is central – it is – but over the specific rights that are actually protected against the will of the majority. Right now, for example, laws in many states discriminate against gay men and lesbians in loving relationships who seek to exercise their constitutional right to marry. Does Will recognize that the blessings of liberty and the promise of equality secured by the Constitution apply to all persons, or would he permit state-sanctioned discrimination against some groups of persons in violation of the Fourteenth Amendment’s command of equal protection for all? Will’s column evades specifics entirely, unfairly tarnishing progressives as enemies of liberty.

Will rejects democracy as a basic constitutional value, viewing it simply as the right of majorities to have their way. This is a dizzying reversal of his own prior writings, which called democracy “the point of the Constitution.” In any event, Will is wrong. The Framers understood – as Lincoln did – that only a democratic system of government of, by, and for the people could hope to honor the principles of the Declaration. As the Declaration puts it, “to secure these rights, Governments are instituted . . . , deriving their just powers from the consent of the governed.”

The Constitution, born in one of the most democratic moments in human history, put these ideals into practice. In an exercise of democracy unparalleled elsewhere, the Framers insisted on ratification of the Constitution by “We the People.” As James Madison explained, our Constitution’s system of representative democracy was designed to be “not [for] the rich, more than the poor.” In the 225 years since, we have repeatedly amended the Constitution to protect the right to vote and to make our system of government more democratic. More Amendments are devoted to protecting the right to vote than any other right. Will’s claim that democracy is not a basic constitutional value does not survive a reading of the whole Constitution.

Getting this right matters. The Roberts Court has been steadily rewriting the rules of our democracy, making it easier to spend money to buy elections, but harder to vote in them. Ten months ago, in Shelby County v. Holder, Chief Justice Roberts wrote the majority opinion striking down a critical section of the Voting Rights Act, one that had been instrumental in protecting the right to vote for countless Americans. Ignoring that the Fifteenth Amendment explicitly gives to Congress the power to prevent racial discrimination in voting, the Court gutted the most important and successful voting rights law ever enacted in American history. As a result, in places such as Texas and North Carolina, states are passing laws to make it more difficult for African Americans and other citizens to exercise their constitutional right to vote. Earlier this month, in McCutcheon v. FEC, the Roberts Court dealt another blow to our campaign finance system, giving the richest Americans – the 1% of the 1% – the right to contribute unlimited sums of money to candidates, parties, and PACs. Will’s disrespect of democracy as a core constitutional value runs through these opinions.

George Will tries to offer a civics lesson about how progressives miss the essence of the Constitution. But Will’s basic problem is his own partial reading of the document, cherry-picking the parts he likes and ignoring the rest. George Will should go back and read the whole thing. He’ll find that the Constitution does not force us to choose between liberty and democracy. It guarantees both.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.

Posted 2:55 PM by David Gans [link]