Following in the tradition of Dahlia Lithwick and others, Garret Epps seems to be a liberal who likes lively and rugged Constitutional interpretation that gives him what he wants, but suddenly sees how misguided it all is when judges come down with decisions he doesn't like. While he's a bit more subtle than Lithwick, I'm not sure, in the long run, if he's any less hypocritical.
There are certain traditions--many of which didn't exist when the Constitution was ratified, or even when the 14th Amendment became law--that support what Epps wants, but others that don't. The latter he rejects as illegitimate. (Same goes for novel interpretive concepts.)
He lays it on the line in his short piece (for which he promises follow-ups) "America's 10 Biggest Constitutional Myths." That every single one of these myths seems to be what conservatives believe doesn't speak well for him (even if he's an admitted partisan). Here's his complaint:
...the current far-right campaign is aimed at an even broader target: it seeks to convince us that the Constitution somehow forbids the United States from becoming a modern nation-state, with an integrated economy, a rational health-care system, a unified national citizenship, an open electoral process, and a system of bedrock civil and political rights.
"Far right," or mainstream campaign? I suppose it could be both, in the same way "moderate" judges on the courts tend to be radical leftists on an issue like, say, affirmative action--compared to the public--while "far-right" judges tend to be only slightly to the left of the public.
Can the Constitution (without further amendment) stop us "from becoming a modern nation-state." I don't know, since I don't know what that is, though I have a sneaking suspicion it's 1) a lot like European nations and 2) something Epps deeply wants and darned if he's going to let a piece of paper get in the way. Presumably the Constitution limits us in some ways, so who knows, maybe it will stop some things Epps desires. That's how it goes sometimes.
What is this Constitution anyway? What Epps and his pals believe? What the public believes? Or what nine people in robes believe? (I won't insult Epps by claiming there's a clear, objective meaning to the document which anyone can divine with enough study.) Epps and his pals have had run of the courts and the academy for quite a while, but new (and old) ideas keep bubbling up, and Epps (just like previous reactionaries) will have none of it.
But let's get to the fun part, his top ten myths, with my comments.
1. Conservatives believe only in "original intent" and others believe in a "living Constitution," meaning whatever they want.
I agree (since this is a pretty extreme way of putting it). Still, there are a number of scholars who make serious arguments on behalf of original intent, and plenty of evidence that many others seem capable of finding whatever they want in the Constitution. But really, you say potato, I say potahto. All sides in this issue try to figure out what the Constitution means, but Epps seems to feel he can decide which side is legitimate.
2. The Founders wrote the Constitution to restrain Congress and limit its powers.
Correct, but so what? The Constitution's main purpose is to set up a form of government (a stronger, more centralized one than they had at the time), and it naturally lists the powers of that goverment. But it also implicitly and explicitly puts significant limits on what that government can do.
3. The "Unitary Executive" means all unclaimed federal power flows away from Congress and to the President.
Not sure if I get this one. Are conservative really making this argument? So much it's one of the top ten myths? I need specific examples to make this mean something.
Everyone--even Dick Cheney--agrees that all three branches have particular powers, and Congress has an awful lot of those powers. The question is still who gets to do what. As to what the President can do, it's not so much general theory as actual practice that the party that runs the White House tends to prefer that the President get as much power as possible.
4. The Constitution does not provide for separation of church and state.
I think he's right, but you've got to argue for it, not just dismiss the other side as a myth. It still requires interpretation of the First Amendment, since it's not explicitly stated. In fact, today's concept of separation is fairly modern--certainly it wasn't put into use until after WWII--and required the sort of novel judicial opinions which Epps now stands foursquare against.
(As usual, this "myth" is stated in an all-or-nothing way, making Epps' opponents seem extremist while Epps gets to be "nuanced." I suppose the opposite claim would be "The Constitution bans all consideration and expression of religion in public.")
5. Corporations have precisely the same First Amendment rights as natural persons.
Corporations aren't people, so they can't speak. It's the people who create corporations who have full First Amendment rights. The only other choice is to say Government has the power to regulate and ban political speech (including from media companies).
6. The Second Amendment was "intended" to make government "fear the people."
I'd guess the Second Amendment was designed in a time when no one thought we'd have standing armies, and no one thought we could have armies everywhere anyway. So they figured militias would be significant to the general defense. But even if this interpretation is correct, Epps still has to show why this in any way limits the right to bear arms.
7. The Tenth Amendment and state "sovereignty" allow states to "nullify" federal law.
As with most of these statements, I agree with Epps. Federal law is supreme over state law. But that hardly means that once the Feds pass a law, that's all there is to it. (Or that there's nothing states can do about it.)
8. The Fourteenth Amendment was written solely to address the situation of freed slaves, and has no relevance today.
As with many of these myths, I have to ask, just how widespread is Epps claiming this to be? If he's only responding to the most radical views, then he's picking easy fights, while ignoring the serious arguments of the right (and "far right").
What's the opposite myth? I guess it'd be something like "The Fourteenth Amendment is the most super-amazing thing ever written, since we can take even a small part of it, like the term 'due process,' and, ignoring history and context, use it to turn the whole Constitution inside-out."
9. Election of Senators is unfair and harmful to the states.
It has its ups and downs, but once again, even the small minority that doesn't like election of Senators isn't seriously trying to overturn the practice. In any case, since we're talking "unfair" and "harmful," we're not in the realm of myth, but rather opinion. (It is true even without the 17th Amendment, the trend would have been to vote for Senators. Just like we got to vote for the President even without an Amendment.)
10. International law is a threat to the Constitution and must be kept out of American courts.
I'm not even sure what this means. International law (whatever that is) floating out there in the ether is no threat. The threat is judges who don't find what they want in American law (you know, the actual law they're supposed to be interpreting) turning to other sources until they find what they want. That's a threat worth dealing with.
So yeah, lets keep it out of American courts when it's dragged in by a judge who likes it better than what the relevant law says.