Cheap Shot
Mises Review 3, No. 3 (Fall 1997)
“UNSOUND CONSTITUTION”
George P. Fletcher
The New Republic (June 23, 1997): 14–18
George P. Fletcher, Cardozo Professor of Jurisprudence at Columbia Law School, thinks that the Timothy McVeigh trial teaches us an important lesson about the Constitution. Many Americans, particularly those on the “radical right” labor under a delusion.
These extremists think that “the People ... are superior to constituted government authority. They are in a position to judge whether the government has exceeded its authority” (p.16). Imagine that! Some Neanderthals are so ignorant as to believe that the government is the servant of the people, not their master. But is not this view the linchpin of the Declaration of Independence? After a “long chain of abuses and usurpations” the signers of the Declaration asserted just the right that Fletcher denies that people validly exercise. And does not the Constitution establish a strictly limited government with key powers “vested in ‘the People,’ who proceeded and superseded [sic] the Constitution they established” (pp. 14, 16)? Our author has not grasped what “supersede” means, but one cannot ask for literacy from a Certified Pundit.
It appears, then, that the “extremists” have history on their side. Who cares?, our author responds. We must abandon the futile quest to apply the Constitution in its original intent; there lies the path to McVeigh.
I pause for a moment to digress. I know nothing about Mr. McVeigh’s constitutional opinions; whether he is a strict constitutionalist of the sort that Fletcher detests must remain for most of us a matter of conjecture until he decides to open his mouth. Why then does Fletcher saddle originists with him? Were it not unthinkable that so eminent a theorist could stoop so low, one might suspect the Cardozo Professor of taking a cheap shot.
But let us return to the “argument.” The original republic “was grounded in a contradiction” (p. 16). You guessed it; the Constitution condoned slavery. (By the way, what is contradictory about a system that grants freedom to some but not others? Slavery is, of course wrong, but why contradictory?) As such, it is not entitled to our respect. “The People have no power either to secede as states or to abolish the national government” (p. 16). Abraham Lincoln, the founder of the “new Constitution” made this clear.
The Cardozo Professor has anticipated the obvious objection to his “new Constitution.” Is this not a blueprint for tyranny? “Organic nationhood” (p. 17) indeed! What is this but a cant phrase for totalitarianism?
Not at all, Fletcher replies. Thanks to Lincoln and his successors, we now realize the importance of Equality (capital courtesy of Fletcher). So long as we all vote we have nothing to fear from the state. “The most significant ... aspect of the new Constitution is that it necessitates an activist federal government ... government must interfere in the states and in private affairs to protect the disadvantaged” (p. 18).
Professor Fletcher appears to have confused the U.S. Constitution with the Soviet Constitution of 1936. He understands nothing of the American tradition hence, he is an eminent expert. Q.E.D.
