Numerous scholars over the years have attempted to argue that the Constitution is not suited for modern times (Sanford Levinson of the University of Texas is the latest) or have proposed ways to get around the Constitution through clever interpretation (Cass Sunstein).
But while I usually disagree with both their conclusions and their prescriptions, one must admit that they at least understand what the Constitution does and does not say. That seems to be a rare thing these days.
Consider just two instances of misstatements by people who are presumed to know something about the Constitution, having taken an oath to defend it.
Writing in the May 24 edition of Roll Call, Rep. Carolyn Maloney (D-N.Y.) responded to opponents of funding the American Community Survey by claiming that their opposition to the funding was not just wrong but “unconstitutional.”
In fact, she called the survey a “core constitutional mandate,” which makes one wonder what copy of the Constitution she has been reading.
What the Constitution requires is a census (in the document’s actual words, an “enumeration”) to determine how many people live in each of the states for the purpose of determining how many Carolyn Maloneys each state is entitled to in the House of Representatives.
There may be sound reasons for inquiring of those citizens such additional information as the community survey seeks, but the Constitution neither requires the collection of such data nor provides for the survey to be undertaken.
Many who help shape public laws would agree with Maloney that the information gathered is important to the designing of good national policy. But whether to amass the information is merely a matter of policy itself, over which disagreement is possible.
Failure to do that which the Constitution does not require is not, however, unconstitutional.
And yet the Congresswoman seems practically a constitutional scholar when her misstep is compared to a statement by Sen. (and former presidential candidate) John Kerry (D-Mass.) in opening a hearing on the Law of the Sea Treaty.
For reasons unclear to me (he was off on a bit of a tangent), the Senator noted that even though the Constitution does not provide for a presidential veto, we nonetheless accept it — which is very magnanimous of us.
Although our open-mindedness in allowing the president to get away with such things might not seem so big-hearted if the Constitution actually does give the executive this rather important grant of authority.
And, voila, there it is. Article 1, Section 7. The president, it seems, is granted the right to send legislation back to the Hill without his approval, and if quite substantial majorities do not reprise the initial decision to approve, said legislation does not become law.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.