January 18, 2006, 8:25 a.m.
No Controlling Legal Authority
Democrats diss the Constitution.

By George Neumayr

The greatest threats to the Constitution come from the Democrats who
rise to defend it the loudest. Both Judge Alito's Supreme Court
nomination hearings in the Senate and Al Gore’s faux-momentous
ramblings Monday at Constitution Hall in Washington, D.C. display the
Democrats’ perverse insistence that they represent the wall protecting
the integrity of the Constitution. This is an absurdly grand claim for
them to make since ignoring the Constitution as written is the de
facto policy of the Democratic party. Hence the Democrats' endless
babble about a “living Constitution,” which is just a euphemism for
saying that they don’t particularly like the actual one and have no
intention of honoring the Constitution the moment it frustrates their
ideology and will.

The sheer willfulness of the Democrats makes them the least plausible
defenders of the Constitution and the rule of law. Almost every
browbeating question the Democrats asked of Sam Alito was designed to
make him cry uncle and accept their “living Constitution.” They were
testing him not for fidelity to the Constitution but infidelity to it.
In effect they were asking him: Do you promise to disregard the
Constitution as written and follow our will instead? The nonsensical
monologues and hectoring questions about “stare decisis” were simply
an attempt to extract from Alito a pledge to cement in place their
activists’ rawly unconstitutional jurisprudence.

If the Founding Fathers wanted government by stare decisis, they
wouldn’t have bothered to write a Constitution. The essential
fraudulence of the Democrats’ stare-decisis claim is evident in their
repudiation of the Constitution as itself a precedent worthy of
respect.

For Al Gore to say, as he did on Monday, that George Bush demonstrates
“disrespect for America’s Constitution which has now brought our
republic to the brink of a dangerous breach in the fabric of the
Constitution” is rich coming from a Democrat who sees the Constitution
as a blank piece of paper on which judicial activists can write
whatever they want. Why can’t George Bush say, as the Democrats do,
that the Constitution is whatever he wants it to mean?

Of course, Bush doesn’t make the claim that the Constitution is
“living,” elastic, a document in need of updating according to
whatever this era sees as expedient. But the Democrats do. Their idea
of the law amounts to a willfulness writ large. The Democrats
constantly imply through their rhetoric that the Constitution is
outmoded, that it is nothing more than a relic of reactionaries who
didn’t have the opportunity to benefit from a subscription to the New
York Times. So what is wrong with reinterpreting it creatively? they
imply

How come Al Gore doesn't consider this Democratic claim of superior
enlightenment to the Founding Fathers a form of “disrespect”?
Moreover, isn’t it disrespectful and lawless to change their
Constitution without following the lawful amendment process they set
up to do so?

If the Democrats in Washington had the honesty and courage of their
convictions, if they really believed that they could craft a more
enlightened form of government than the one devised by the Founding
Fathers, one that would incorporate all their advanced understandings
of moral and political philosophy, they would concretize their “living
Constitution” through a new constitutional convention. They would add
to the Bill of Rights, say, a specific right to kill unborn children
and the aged and infirm while extending a prohibition on cruel and
unusual punishment to captured terrorists.

But the Democrats, cravenly aware that their claims to superior
statecraft would never survive an amendment process, choose the easier
and unlawful route of circumventing the Constitution through
capricious activism from the bench. When Al Gore says that under
George Bush America has become a “government of men and not laws,” he
multiplies hypocrisies. It is not just that he belonged to a wantonly
lawless administration which would rifle through the raw files of its
enemies and just make stuff up whenever convenient (there is “no
controlling legal authority,” Gore said, for example, after he was
nabbed in an obvious violation involving campaign finance laws).

The hypocrisy, more than all of that, is philosophical in that the
Democrats are committed conceptually to the “rule of men” through
their insistence upon an unwritten constitution that goes by the
description “living.” Rule by stare decisis (which is now a handy
method of fortifying this invented constitution) is rule by men —
judges who can decide whenever they feel like it to abandon the real
constitution in favor of one that exists nowhere but in their minds
and wills.

What Al Gore describes as George Bush's "belief that he need not live
under the rule of law" has been on display in the Democrats' agenda
and philosophy for decades. They don't call this belief tyranny; they
call it progress.

— George Neumayr is a writer living in the Washington, D.C. area.