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Does TIME Still Matter?

Richard Stengel’s take on the U.S. Constitution tries to dispel the Tea Party Movement’s claims that certain recent policies under the Obama administration are unconstitutional. The main argument is set out when Stengel, the managing editor of TIME, states, “Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.”


With this premise, Stengel tries to show that some of President Obama’s controversial initiatives are actually in line with the “spirit of liberty,” and since the Constitution should mainly be a “promissory note, one in which ‘We the People’ in each generation try to create that more perfect union,” then these initiatives align perfectly well with the Constitution. Do they, or is this just his spin?

Stengel first spins for President Obama’s “military action” against Libya. Claiming that “No President wants to have his powers as Commander in Chief curtailed,” Stengel dismisses then-Senator Obama’s argument that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Stengel also conflates general Congressional authorization for war-making with the technical declaration of war. Stengel is correct that Congress has not declared war since 1941 even as the United States has engaged in many military conflicts. However, as Charles Krauthammer notes [2], there is clearly intent in the Constitution for Congress to be consulted and the disappearance of the declaration of war from international law should not excuse the President from consulting Congress before making a war of choice.

Stengel asks, “Do Americans really want to let Congress have the sole power to commit U.S. forces to action?” This is the wrong question, and the Framers knew it. Congress is not the Commander-in-chief, but rather must be consulted to ensure that wars are nationally supported and in the national interest.

Worse than Stengel’s claims about the Libyan conflict are his claims about the healthcare law. Stengel claims that since “the government does require us to pay taxes, serve on juries, register for the draft… [and] compels us to buy car insurance (if we want to legally drive our car), which is a product from a private company,” that “there’s nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax — even if we don’t like it.”

Whether one supports the Obama healthcare law or not, one must surely admit that this is simply terrible reasoning. The power to tax is enumerated as the first power given to Congress in Article I Section 8; the power to mandate the purchase of health insurance is not enumerated. The right of the state to compel jury service (interesting stuff here [3]) has not been in doubt in English (and American) common law since long before the Founding; an individual mandate to purchase health insurance is a new and highly disputed power [4]. Stengel claims that “the government also compels us to buy car insurance (if we want to legally drive our car), which is a product from a private company.” Stengel fails to note that this is a policy applied at the state level and that New Hampshire has no [5] such mandate.

Stengel’s reasoning on the health care issue is so broad that it would give the Federal Government plenary powers if ever adopted. Stengel reasons thus: “No one really disputes Congress’s power to regulate interstate commerce, and it’s silly to argue that health care — which accounts for 17% of the U.S. economy — doesn’t involve interstate commerce. Your doctor’s stethoscope was made in one state and was shipped to and sold in another.” Given this reasoning the Federal Government is perfectly within its right to mandate the purchase of General Motors vehicles or indeed any other product, as almost all products have constituent parts coming from many states or many countries. Stengel also asserts that “it’s hard to argue that not buying health insurance has no interstate economic consequences.” Again, if this reasoning is allowed to stand the Federal Government will receive plenary authority to command all human activity, as everything from one’s food preferences to one’s bathroom habits has at least one interstate economic consequence.

Stengel claims he “devoutly believes in Justice Louis Brandeis’ famous dissent in the 1928 wiretapping case of Olmstead v. United States, in which he wrote that the Constitution conferred on all of us ‘the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.’” If only he did.

Stengel concludes by stating that the framers would say, “The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution.” This is true only if one defines the Constitution as a broad set of principles which only act as a “guardrail for our society.” If this is the case, then surely the Federal government can try to change anything it deems as an obstacle to forward mobility. Likewise, there would be nothing set in stone, nothing that could not be changed in accordance to our “spirit of liberty.” The only problem is with the notion itself. The Constitution does protect our spirit of liberty and our spirit of liberty protects the Constitution. The two are not mutually exclusive.