The “Empathy Clause” of the U.S. Constitution

The New York Times is having an utter hissy fit over the decision by leaders of the House of Representatives to recite aloud the Constitution to formally convene the 112th Congress. The left-leaning paper has run two editorials, the first condemning the act on the grounds that the Constitution—contrary to what Republicans believe—is a living document subject to reinterpretation and that doing a selective reading at a specific point in time is therefore an exercise in futility. The second editorial, which is of a piece with the first, criticizes the GOP for reading the amended, rather than the “original,” Constitution.

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Far from the empty gesture the Times ascribes to it, the act of reading the Constitution in its entirety may well be a first for many of the legislators whose job is to uphold the law of the land. Certainly, it should prove instructive for Rep. Pete Stark (D-CA), who at a 2010 town hall meeting famously declared that health care is a right and that “the Federal Government can do most anything in this country.”

The Times editorialists could use a refresher course in the Constitution as well. In the first of the two editorials, which appeared on Wednesday, the writers declared that

it is a presumptuous and self-righteous act, suggesting that they [the Republican leadership] alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation. Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.

But as James Taranto points out:

African-Americans were never counted as three-fifths of a person. Slaves were… The three-fifths provision has been a nullity since 1865, when the 13th Amendment was ratified. But the Times either is using “African-Americans” as a euphemism for “slaves” or is simply ignorant about what the Constitution says.

But the failure of the Times editorial staff and many other liberals to understand the Constitution and what it stands for harks back to that “living document” canard. The only aspect of the Constitution that is remotely “alive” is its capacity to be amended, a feature that the founding fathers had the sagacity to build into the original document. This process—which entails two steps, proposal and ratification—was deliberately made difficult, again thanks to the foresight of the founders, who saw the prudence of forestalling frivolous changes to the law. That explains why since 1789, the Constitution has been amended only 27 times, despite the introduction in Congress of over 10,000 proposed amendments.

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Thus the Times’ objection to reading the “amended,” or more correctly put “current,” draft of the Constitution is grounded more in their general antipathy toward the document than in their love of it. They would prefer that if the Speaker of the House is to read the Constitution aloud that he read it with all its unamended language intact to show how poorly it serves the needs of contemporary Americans.

That antipathy toward the Constitution is as far-reaching among liberals as their ignorance of what is in the document. Consider the following comments made by no less than a one-time instructor in Constitutional law:

[J]ustice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

The speaker of those words is the current president of the United States. The view was expressed in the context of filling a vacancy on the U.S. Supreme Court, the highest court in the land. If Obama doesn’t get it, why should anyone expect better from the New York Times?

Cross-posted at the Examiner. Follow me on Twitter or join me at Facebook. You can reach me at [email protected] or by posting a comment below.

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