The Constitutional Vision of The New York Times, Again

What is it about the editorialists at The New York Times? Again today they’re ridiculing the decision by the new House to begin its business yesterday by reading the Constitution aloud. On Tuesday, with great pomposity themselves, the editors called the anticipated reading “a theatrical production of unusual pomposity.” Then in a nasty little editorial today entitled “The United States Consti …tion” — that’s not a typo; that’s their headline — they criticize House leaders for deciding not to read the “obsolete or offensive” parts of the document that are no longer law due to subsequent amendment. The Constitution was read, that is, as it exists today, which hardly seems surprising.

But it’s far more than surprising to the Times, apparently, because this “rewriting of history” deprives us of yet another opportunity to wallow in the unpleasant episodes of our past, as the Times and its followers so love to do – American unexceptionalism and all. Indeed, those offensive provisions “were written by a group of men that many in the Tea Party and elsewhere seem to consider infallible and nearly divine.”

It’s hard to make this stuff up; you have to simply quote it. Which brings us to the point of the editorial: What really troubles the Times, you see, is that Republican leaders “missed a chance to demonstrate that this document is not nailed to the door of the past. It remains vital precisely because it can be reimagined.” Well, yes, we have “reimagined” the Constitution from time to time — by amendment. But that’s not quite what the Times has in mind. No, the editors grant that the Constitution “was a work of political genius” (despite those offensive parts?), but “largely because its authors handed its interpretation to the open minds of posterity.” Through amendment? Well, not entirely, or even mainly, in today’s context. In their Tuesday piece, they revealed their hand — hardly a surprise — when they spoke of constitutional text “that the founders wisely left open to generations of reinterpretation.”

So it’s not just by amendment that we change our fundamental law: that’s how the Civil War generation removed offensive parts, legitimately; and that’s how women got the vote. But there’s another way to amend the Constitution, too — by “reinterpreting” its text. That’s how the New Dealers did it, as I discussed in this space yesterday and have more fully elsewhere. After Roosevelt’s infamous Court-packing threat, a cowed Supreme Court turned the Constitution on its head: by reading shields against power as swords of power; by turning a Constitution for limited government into one of virtually unlimited government. That’s fine with the Times. It’s not with the people the Tea Party sent to Washington, and that’s why the Times has them in its sights. What the Times champions is not constitutionalism. It’s politics. They won’t say it. We will.