Patterico's Pontifications


Day Thirteen of Stengel-gate: The American Constitution Society Embarrasses Itself For Richard Stengel

Filed under: General — Aaron Worthing @ 5:26 am

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update: Posted at Big Government, too.

Just as a quick backgrounder, a few weeks back Time magazine published, as its cover story, an article by Richard Stengel on the Constitution.  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 entry.  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.

[Posted and authored by Aaron Worthing.]

22 Responses to “Day Thirteen of Stengel-gate: The American Constitution Society Embarrasses Itself For Richard Stengel”

  1. Well you’re not going to get honesty from them, Aaron: from

    “On 8-10 April 2005, Yale Law School hosted a conference called, The Constitution in 2020, promoted as an effort to produce a progressive vision of what the Constitution ought to be. Its website listed Soros Open Society Institute as a sponsor. In fact, of the five organizations hosting the event, three were recipients of Soros’ funding.

    Five Sponsors
    The American Constitution Society
    The Yale Law School
    The Arthur Liman Public Interest Program at Yale
    The Open Society Institute
    The Center for American Progress

    The American Constitution Society and the Center for American Progress are both Shadow Party fronts. One of the founders of the latter was Morton Halperin, director of U.S. advocacy for Soros’ Open Society Institute and executive director of the Open Society Center. Soros helped launch both groups and both have received funding from the Open Society Institute.

    ian cormac (d380ce)

  2. ian

    i know, but i can embarrass them. :-)

    Aaron Worthing (b1db52)

  3. Guess who chaired ACS, for a while, our ‘favorite’ would be jurist, Goodwin Liu, who else was a staffer
    there, Lisa Brown, Obama’s staff secretary.

    ian cormac (d380ce)

  4. The new Republican Congress organized a reading of all 7,200 words of an amended version of the Constitution

    THis sentence says it all – its about an author who refuses the message of the constitution and imparts his own missive into what he “thinks” oy should say

    EricPWJohnson (a60276)

  5. usa action

    ian cormac (d380ce)

  6. eric

    i personally agree that the whole thing should have been read, worts and all, inoperative clauses and all, but i didn’t think it was a big deal to leave out stuff like the 3/5 clause and of course the politics made the desire to leave it out irresistible.

    Aaron Worthing (b1db52)

  7. Remember when Debbie Wasserman-Shulz said that the GOP wanted to take us back to Jim Crowe? And then Bill Clinton said it next. Now that’s the talking point.

    This is how these people operate. Throw shit to the wall, see what sticks. Stengel lies, you bust him (though, since you’re a conservative, you are ignored) and the left will just keep pointing to that article. “but… But it was in TIME! It has to be true!”

    Keep telling the lie until its the only thing people hear. They can’t refute this. The rightwing knows its a lie. Now, if only we could show the puffho’s and kossacks, their damn heads would explode. And that would be worth the price of a TIME subscription.

    a different Mark (f2222e)

  8. The American Constitutional Society (ACS) was formed by liberal lawyers following the US Supreme Court decision in favor of George W Bush’s election victory over Al Gore. Since then it has become extraordinarily influential, especially in Barack Obama’s DOJ.

    Peter J Rubin, Georgetown Law Center, counseler to Al Gore during the 2000 election, organized the ACS as a counterweight to the Federalist Society. When Laurence Tribe and Abner Mikva contributed their support the Society grew rapidly (over 13,000 members, 165 chapters at law schools, and 30 professional chapters), which include Eric Holder, Dawn Johnson, Lisa Brown, Pamela Karlan, Goodwin Liu, and Teresa Rosenborough among many other left leaning lawyers and law professors who oppose the Federalist Society’s influence and their view of the Constitution.

    With the candidacy and eventual election of Barack Obama the ACS published a series of policy briefs (November 2008) “designed to be a legal road map for the (Obama) administration. Among its suggestions are that the Department of Justice re-energize civil rights enforcement, try terrorism suspects in civilian courts, appoint federal judges who have a broader range of life experiences.” (WaPo, December 7, 2008, by Michael Fletcher)

    Richard Stengle’s views represent the fundamental differences between the ACS’s approach to the Constitution and that of the Federalist Society as generally expressed by Arron Worthing. The ACS regards the Constitution as an historical document subject to a series of evolving interpretations as the perceived needs of society change over time, while the Federalist Society sees the Constitution as our nation’s fixed and knowable foundation subject to changing times only by the process of amendment.

    ropelight (a1fbb3)

  9. Certainly the ACS realizes that the words “equality” and “democracy” do not appear anywhere within the Constitution.

    They do know this. Right?

    Icy Texan (f33932)

  10. rope

    well, i have known people in that organization and they would object as strongly as i do to this.

    so they and like-minded members will be annoyed by this hack job article in time and the acs’s refusal to hold them accountable.

    Aaron Worthing (b1db52)

  11. The ACS regards the Constitution as an historical document subject to a series of evolving interpretations as the perceived needs of society change over time,

    This is meaningless. What is a “historical document” that is subject to “evolving intepretations”. Sure, that may sound reasonable until you realize that what this means is that the actual constitution, as written, has aboslutely no meaning instead only meaningt what “we” say it means at any given moment.

    that is a ridiculous viewpoint. It is convenient to those who don’t want the gov’t to abide by the constitution, but it means simply that they can ignore what the constitution says and do what they want.

    No reasonable, sane, and honest individual can say that is a correct reading of the U.S. Constitution.

    If you were employed pursuant to a contract, would you want your employer to be able to subject it to “evolving interpretations” as it saw fit – or would you want the contract interpreted as written – as you negotiated and ratified it?

    The ethical and intellectual dishonesty that is necessary to take the position that the constitution only means what we say it means is astounding.

    Monkeytoe (5234ab)

  12. The other major problem with the “historical document” that is subject to “evolving intepretations” is that it is anti-democratic. Anyone suscribing to this view is against democracy, as the only people who can do this “evolving” interpretation are unelected and unaccountable judges. And they can use this idiocy to rule by fiat. this view means there is no limit to the abuses that some majority of supreme court judges can accomplish.

    You are basically saying a) you don’t like the constitution and b) you don’t like democracy.

    Monkeytoe (5234ab)

  13. Iceman, if you’re holding your mouth right and you stare at the noonday sun for a few seconds then close your eyes and turn away quickly, you’ll just be able to make out the image of a silvery penumbra with the magic words dancing like naked virgins in the shimmering glow of your personal Northern Lights.

    ropelight (a1fbb3)

  14. Monkeytoe, the evolving interpretation crowd is saying they prefer Progressive social and educational elites to say what the law is according to what they can get the majority to accept or will acquiesce or be tricked into.

    They resist the limitations of our Constitution because it’s resistant to the rapid pace of change they consider a collective social imperative.

    If they agreed with the current provisions of the Constitution we’d be hearing all about it’s sacred and immutable nature.

    ropelight (a1fbb3)

  15. “American Constitutional Society”

    I liked the “Join ACS” section of their website. Looks like you can buy a membership to the ACS for $25 if you’re part of the public sector (i.e. a government employee), but you have to pay $50 to join if you’re part of the private sector (i.e. a lowly ordinary citizen type).

    That’s an interesting approach for a pack of guys who are always droing on about equality.

    Dave Surls (79bcd4)

  16. That should be “droning” not “droing”

    Dave Surls (79bcd4)

  17. “i personally agree that the whole thing should have been read, worts and all, inoperative clauses and all…”

    Respectfully disagree, Aaron. The point is that those inoperative clauses are NO LONGER a part of the Constitution.

    Demosthenes (746bac)

  18. 13.Monkeytoe, the evolving interpretation crowd is saying they prefer Progressive social and educational elites to say what the law is according to what they can get the majority to accept or will acquiesce or be tricked into.

    Oh, I understand that. It just drives me nuts. You can’t even argue with that kind of thinking b/c how is it ever “wrong”. If you refuse to acknowledge the documents has a fixed meaning, then what is the point of the document? Liberals have tied themselves into knots with their rationalizing this, but they are getting to the point – we are seeing it more and more often – of just saying “screw teh constitution”.

    That is what this essay was all about, trying to start building concensus for the position that we can simply ignore the constitution.

    Monkeytoe (5234ab)

  19. Bingo Monkeytoe! It’s part of a coordinated effort: ACS, DOJ, NCC, Time Magazine, Lefty echo chambers, etc.

    ropelight (a1fbb3)

  20. Re: ropelight #12

    :) :) :) :) :)

    Icy Texan (89a6d9)

  21. 19.Bingo Monkeytoe! It’s part of a coordinated effort: ACS, DOJ, NCC, Time Magazine, Lefty echo chambers, etc.

    Comment by ropelight — 7/11/2011 @ 2:42 pm

    I’ve had this argument with pretty smart lefty friends regarding Obamacare. I ask – if the gov’t can order you to purchase a product pursuant to the commerce clause – what can the gov’t not do?

    And they get all tied up, but basically their answers always boil down to – “the gov’t has the authority to do anything we think is really, really important and good and doesn’t have the power to do anything we don’t like.”

    It is the same when discussing the constitution. I ask “if the Supreme Court can interpret teh constitution to ‘fit today’s world’ in ways that nobody ever understood the contitution to mean, what limit is there on the Supreme Court’s power?”. Again, the answer appears to boil down “the constitution can be interpreted in ways that I like and not in ways that I don’t.”

    I always wonder if these otherwise intelligent people really believe such nonsense, or if they are just being totally dihonest. I’m never quite sure.

    They fail to understand that if they make the constitution meaningless, it opens the door for all kinds of things they won’t like. But, when you believe that the “march of history” is on your side, I suppose it never occurs to you that things may not turn out the way you like.

    Monkeytoe (5234ab)

  22. I don’t see why people can’t define and redefine the Constitution to mean anything they want. It just a bunch of words. Look at how the meaning of other words has changed in the last 50 years. ( You know which ones. )

    tehag (eecbad)

Powered by WordPress.

Page loaded in: 0.3796 secs.