Dahlia Lithwick expresses her frustration with Barack Obama for not discussing the Constitution in the State of the Union:
Maybe the president avoids talking about the Constitution for the same reasons he usually avoids talking about gun control, or abortion, or the death penalty: Because it's polarizing. And on Tuesday he clearly wanted to be conciliatory. But the Constitution is not—or shouldn't be—just another political issue. The Constitution doesn't belong to any one party or ideology. It is the country's founding document, the closest thing Americans have to the Ten Commandments, and by holding himself out as a firm constitutional atheist, Obama just opened the door to Bachmann's suggestion—repeated Tuesday—that the holy relic is safe only in her hands.
The other day, Paul Waldman was dismissive about the news about John Adams' support for socialized medicine for sailors:
It's tempting to play the Tea Partiers' game on this if you find the ammunition -- few things are more fun then hoisting your opponents on their own petard -- but it doesn't do much good in the long run. The "originalist" position, whether in law or policy, is just indefensible. No sane person can believe that if we just read the Constitution or find a nugget from something the Founders did, all of our policy choices will have only one answer. And joining in the right's Founding Father fetishism is a mug's game.
Most of our political conversation about the Constitution is at the level of culture war. The overwhelming majority of Americans simply aren't constitutional scholars. "Founding Father fetishism" isn't so much about textual interpretation as it is excommunicating liberals from American history. But that doesn't mean we should just ignore what the Constitution says because it doesn't offer simple answers to policy or legal questions.
I've been critical of originalism because I think it's mostly just a clever rhetorical cover for results-oriented judging, and I think the "history" cited in justification of originalist decisions is often pretty selective. but I don't think that it's "Founding Father fetishism" to locate strains of liberal thought among the nation's founders in order to rebut the notion that there's something un-American about ensuring everyone has access to health care. It's possible to acknowledge the founders' glaring flaws and still revere the wisdom of the nation's founding document, whose ideals have since become rallying cries for freedom movements looking to rectify injustices the founders left intact.
That isn't originalism, or Martin Luther King Jr. was an originalist. He famously wrote in his Letter from Birmingham Jail of "carrying our whole nation back to those great wells of democracy which were dug deep by the founding fathers in the formulation of the Constitution and the Declaration of Independence." King understood as well as anyone the flaws at this nation's founding. But by contextualizing the fight for black rights within religious and legal traditions, he provided a potent symbolic narrative that would be accessible to Americans of all backgrounds. If the fight for black rights was wrong, as King put it, then "the Constitution was wrong."
Simply ceding the Constitution to the right, particularly when facts and history support the opposite conclusion to the one conservatives are espousing, strikes me as unwise, and I think it comes across to most people as being dismissive of the Constitution, rather than being dismissive of a selective interpretation of history or the notion that American society should aspire to emulate how it operated in the 18th century.
