Wednesday, June 30, 2010

Independence Day 2010

In July 1776, when John Hancock and the other fifty-five signatories to the Declaration of Independence mutually pledged their "Lives, Fortunes and sacred Honor," the pledge was not to be taken lightly. By their act, their lives and fortunes were, indeed, put at risk.

Later that year, with the battlefield situation confronting Washington's army looking dire, Thomas Paine stirred his fellow revolutionaries with these words from his broadside, The Crisis:

"These are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph."

The triumph was indeed glorious. And the Declaration of Independence was a gift, not only to us, but to freedom-loving peoples across the globe.

There is nothing confronting we Americans today comparable to the crisis of 1776. It is folly to suggest otherwise. Nevertheless, as before, we do confront serious challenges at home and abroad. In facing those challenges, it is certainly not unhelpful to invoke the spirit of '76.

In the run-up to this Independence Day, I keep thinking about an encounter I had with an airline seatmate last fall. After changing planes in Charlotte for a trip back to D.C., I found myself seated next to a middle-aged woman traveling from Florida to attend a Tea Party demonstration on Washington's Mall. Yes, a Tea Partier. She told me that, despite the expense of the plane ticket and accommodations, this was the second time within a few months that she had flown to Washington to participate in a Tea Party rally. She was motivated mainly, but not exclusively, by what she saw as the overreaching of the ObamaCare proposal.

I don't want to debate the merits of ObamaCare, or of any particular policy issue. What struck me most about our conversation, and the reason I recall it today, is that, in addition to explaining what she saw as ObamaCare's policy ills, she spoke as passionately about what she saw as its constitutional infirmities. She spoke of her understanding of the Commerce Clause's limits, the Tenth Amendment's reservation of power to the States and to the people, and the purpose of the Fifth Amendment's Takings Clause. All the while, she held in her hand a pocket-sized copy of the Constitution.

My seatmate, ever courteous and soft-spoken, was not a lawyer. Her constitutional understanding doesn't square with that of the majority of this country's law professors. It might not comport with the existing body of constitutional jurisprudence. So, she may well be "wrong" in that sense.

But for my purposes this Independence Day, she was "right" in an important sense: She was right to be thinking about how the large issues of the day square with our constitutional charter.

I think most of the mainstream press, perhaps not surprisingly, did a real disservice early on in its attempts, at best, to ignore, or at worst, to denigrate, the rise of the Tea Party. In my view, the Tea Party movement is a quintessentially American phenomenon fueled primarily by legitimate concerns over the size and scope of government. But regardless of how one feels generally about the movement, the heightened interest it has spurred among its followers, and others, concerning our Constitution's meaning ought to be seen by everyone as positive. A cause for celebration, not fear.

Of course, the meaning of many of the Constitution's most important provisions, including those provisions cited by my seatmate, is subject to differences in interpretation. In other words, the meaning of particular clauses, regardless of the interpretive theory employed, is contestable. Particular cases and controversies will be decided by the Supreme Court -- now an often closely-divided Court -- based on the Justices' own understanding of their meaning.

While the Supreme Court decides particular controversies, it does so, at least over time, in the context of the American public's broader understanding of constitutional law. And elections inevitably influence the direction of the Court, both with respect to the choice of President who nominates the Justices, and the choice of Senators who advise and consent. This is as it should be in our democratic republic.

Like my chance discussion with the Tea Partier, the confirmation hearings of Elena Kagan, as scripted as they are, nevertheless provide yet another opportunity for education concerning the Constitution's meaning, the Court's interpretive role, and conflicting modes of interpretation.

At bottom, this educational process, amidst what appears to be a period of elevated interest in the Constitution, is an essential prerequisite to a widespread appreciation by the American public of the crucial distinction between "law" and "politics." Unless there is at least a shared understanding of the importance of the law/politics distinction to proper constitutional interpretation, the individual rights which the Founders intended to be protected by our Constitution will be that much less secure.

I leave you with two quotes on this July 4th holiday.

Thomas Jefferson, the Declaration's principal author, said: "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."

And Tom Paine, towards the end of The Crisis, after depicting in especially stark terms the difficult days ahead, wrote: "I thank God, that I fear not. I see no real cause for fear. I know our situation well, and can see the way out of it."

As long as we hold true to our constitutional principles, I too see no cause to fear.

Best wishes from those of us at the Free State Foundation for a happy Independence Day.