The power of III

Summum ius summa iniuria--More law, less justice

11 July 2011

Time magazine publishes article with Statist distortions (and factual errors) of the meaning of the Constitution

Aaron Worthing of Breitbart's Big Government has been doing a good job trying to take the Left wing American Constitutional Society and Time magazine to task for publishing a Time magazine article containing over a dozen purely factual errors about the Constitution.  The writer of the article, Richard Stengel, is a former director of the ACS, a big government foil to the Federalist Society.

verbatim post from Breitbart:

Background: a few weeks back Time magazine published, as its cover story, an article by Richard Stengel on the Constituion.  Reading it, I was stunned to discover fourteen clear factual errors in his piece, and I have been on a bit of a crusade since then to force Time to either correct or retract the article.  And in the process I have been examining how other media outlets and organizations have treated Stengel.
Now, on the right we have the Federalist Society, a group of generally conservative scholars and other interested citizens devoted to the preservation of the Constitution.  So the left decided it needed an organization like this too, so someone formed the American Constitution Society (ACS), meant to be a liberal alternative to the Federalist Society.  (This shouldn’t be confused with the National Constitution Center, which by all appearances is an unrelated entity.)  They state on their website that:
The American Constitution Society for Law and Policy (ACS) promotes the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. The abiding principles are reflected in the vision of the Constitution’s framers and the wisdom of forward-looking leaders who have shaped our law throughout American history.
So they seem to care about the Constitution itself, or at least that is the implication.  So I found it curious that their website presented Richard Stengel’s piece on the Constitution without any criticism.  Go ahead, read their blog entry announcing Stengel’s piece.  It’s not long.  If they aren’t endorsing it (and it sure sounds like they are), they are definitely promoting it and without the slightest hint of criticism.
But even worse than that, they actually quote from this passage, again without a word of criticism:
If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the ‘necessary and proper’ clause, which delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department of Officer thereof.’ Limited government indeed.
(Emphasis added.)  That is right, they actually quote from Stengel when he claims that there are no explicit limitations on Federal power in the Constitution.  Folks, do I even have to explain why this is wrong, again?  Even leaving aside the entire Bill of Rights, the Constitution is filled with limitations—primarily in Article I, Section 9, which includes (among other things) the following:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
These are each limits on the government.  But for one reason or another, the American Constitution Society quoted where Stengel said that there were no explicit limits on the Federal Government without challenge, sending its readership unsuspecting to the Time magazine article with no indication that they even noticed such a basic error.
And indeed, the sole comment on the post is written by a man claiming to be Jonathan Adler (of Volokh).  It says:
Whatever one may think of Stengel’s overall thesis, it is embarrassing that Time magazine would publish an article so riddled with basic factual errors (e.g. attributing provisions of the 13th and 15th Amendment to the 14th Amendment, claiming the Constitution prohibited female suffrage prior to the 19th Amendment, etc.). Even more embarrassing is for so many basic errors to be made by the former CEO of the National Constitution Center. So I find it odd that the essay would be promoted by an organization like ACS.
I am willing to bet that is Adler since he complained to me specifically about that blog post.  And yet despite the fact that this comment was written the day after the post first appeared, that entry remains, without any update contradicting or criticizing of Stengel’s piece.
Now, on their “Contact Us” page, they say:
If you are a member of the press seeking a statement from a legal or policy expert, please contact Alex Wohl, [email] or  Jeremy Leaming, [email].
So I decided to seek their expertise…
Dear Sir,
My name is Aaron Worthing, Esq.  The ACS site asserts that if I would like a statement from a legal or policy expert, I should write to you both.  So I formally request your expert opinion on the subject of Richard Stengel’s cover story for Time magazine, entitled “One Document, Under Siege.” As an attorney and a student of history, I found fourteen clear factual errors in Mr. Stengel’s piece, which I documented here.
Limiting the list of errors to those that concern the interpretation of the Federal Constitution, they are:
  1. The Constitution does not limit the Federal Government.
  2. The Constitution is not law.
  3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
  4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
  5. The original Constitution declared that black people were to be counted as three-fifths of a person.
  6. The original, unamended Constitution prohibited women from voting.
  7. The Commerce Clause grants Congress the power to tax individuals based on whether they buy a product or service.
  8. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
So I would like it if you would share your expert opinion on the subject. Am I correct in assessing that Mr. Stengel has made each of those errors?  And if not, why not?
And I also ask whether the ACS will join me in calling for Time magazine to either retract or correct that article.  The ACS bills itself as a society devoted to the Constitution and states that it is seeking to “revitalize[e] and transform[] legal and policy debates in classrooms, courtrooms, legislature and the media, and we are building  a diverse and dynamic network of progressives committed to justice.”  I have no doubt that your organization wants people to learn what is actually in the Constitution and not misinformation.
I thank you for your time.
Aaron Worthing, Esq.
We shall see what their reaction might be.

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