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The Coming Constitutional Debate: A Citizen’s Guide

I received an email from Hillsdale College today stating the following:

Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship is publishing a series of white papers on topics related to the revival of limited constitutional government.

The first in that series, titled “The Coming Constitutional Debate: A Citizen’s Guide,” is written by Justice Stephen J. Markman of the Michigan Supreme Court. Since 1993, Justice Markman has taught America’s founding principles—the principles of liberty—in a popular constitutional law course at Hillsdale College. The primary text for this course is the Constitution itself, not the latest legal theories.

Taking on what Justice Markman calls “the twenty-first century constitutionalists,” this white paper examines the threat posed by progressive constitutional ideology that, if successful, would erase the distinctions between public and private institutions and subordinate the Constitution to foreign law.

The paper is extremely well-written and accessible.  It is also thoroughly documented with an extensive bibliography and footnotes.

What it has to say is eye-opening.

21st Century Constitutionalism proposes to reinterpret the Constitution in ways never intended by the Founders.  This white paper documents several of the tactics being used by progressive activists to utilize the judicial system as a means of implementing policy.  Under the guise of this new Constitutionalism, “the forms of the Founders’ Constitution would remain – a bicameral legislature, periodic elections, state governments – but important decisions, those determining the nature and direction of the American experiment, would increasingly be undertaken by federal courts.  Rather than merely defining the broad ‘rules of the game’ for the three branches of government, the twenty-first century constitution would compel specific policy outcomes.”

Markman examines a 2009 book called The Constitution in 2020.  It is a compilation of essays written by “progressive-minded legal academics.”  Ten sample essays are available on-line at The movement is real, and they’ve set out their objectives fairly succinctly.

Markman documents 8 of the focal areas for debate:

  1. Privileges or Immunities
  2. Positive Rights
  3. State Action
  4. Political Questions
  5. The Ninth Amendment
  6. Full Faith and Credit
  7. Transnationalism
  8. Judicial Restraint

The twisted logic of the 21st Century Constitutionalists’ arguments is as infuriating as it is disgusting.  For example, the fourteenth amendment is seen as a prime target for exploitation.  In particular the clause known as Privileges or Immunities:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …

This has been interpreted since shortly after the Civil War as meaning that citizens are extended protection for a limited array of rights they have as a function of federal citizenship.  The Supreme Court overwhelmingly rejected the argument that this clause also protects rights that come from state citizenship.  Why?  Because they felt that lead to federal courts serving as a “perpetual censor” of state and local governments.  Nor did they want to give Congress authority over the “entire domain belonging exclusively to the states.”

The progressives have mounted an attack on this precedent seeking instead to capitalize on the lack of apparent constraints on what “rights” can be discerned from its terms.  According to Markman, this could be used to justify an endless slew of newly defined judicially determined “rights”.

Federal judges would be authorized to undertake a far more aggressive review of state and local decision making, “standardizing” a broader uniformity of law across the states.  Instead of the narrow interpretation, limiting protection to the first eight amendments of the Bill of Rights, the Due Process clause of the fourteenth amendment would be expanded to include new “rights”.

Markman cites Goodwin Liu, President Obama’s choice for the 9th U.S. Circuit Court of Appeals in San Francisco, who thinks “at a minimum” the clause means that all citizens should be granted substantive rights essential for “equal standing in the national political community” and therefore both judges and congress “may determine what civil and political rights, and what social and economic entitlements are necessary to make national citizenship meaningful and effective.”  In other words, government should engage in social engineering, if necessary, to achieve the desired positive right.

The progressive movement has long expressed dissatisfaction with the Constitution as a document of negative liberties.  This is what differentiates the American Constitution from that of other countries.  The Bill of Rights is a list of things that the government is prohibited from doing to its citizenry.  The tenth amendment is the capstone, expressly spelling out that fact.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The progressives seek to redefine what they view as the archaic nature of this document of negative liberties, into a set of guaranteed positive rights, such as housing, food, eduction, employment, or health care.  If these things are guaranteed, they have to be paid for.  If these rights must be delivered, then the state would be bound to provide the resources to do so, and these resources would have to come from other citizens.

The Warren Court “never ventured into the issues of redistribution of wealth and of more basic issues of political and economic justice in society… the Warren Court wasn’t that radical.  It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution … that generally the Constitution is a charter of negative liberties.  Says what the states can’t do to you, but doesn’t say what the state government or federal government must do on your behalf.” Barak Obama

It’s quite clear that there is an agenda, this isn’t unintentional.  The progressives know what they want, and transforming the Constitution is yet another avenue being used to accomplish their ends.  This white paper should be read by everyone who cares about the Constitution.

1 comment

1 Seth Richardson { 06.14.10 at 8:55 pm }

Well put, Martin. What we are facing is an ideological war for the future of the Republic, and we need to recognize this and gird ourselves for battle, because the Progressive agenda is diametrically opposed to everything the Founders created for us.


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