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Archive for December 31st, 2012

…actually, A LOT of people’s teaching credentials need to be reconsidered, but I’d be happy to start with this guy’s.  Louis Michael Seidman is a …Lord help us…a Constitutional Law professor at Georgetown University.

He wrote this incredibly insipid fap piece for the New York Times in which he predictably laments the archaic nature of the Constitution, and those damn restrictions on the Federal Government.  It is a perfect example of how we screwed up the blueprint, based on the advice of such fine academic minds as Professor Seidman, only to then hear he, and others like him ,then declare what their shortsighted meddling broke to be “Broken”.

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

No, you idiot.  The culprit is the combination of ivory towers and empty skulls that promoted ideas like the 16th and 17th Amendments that enabled the Federal Government to bloat like a tick engorged on the blood of its host, while removing any state representation in the Federal Government, allowing it to take over all manner of things that it was never granted any authority to address, because it had the financial means to do so, and had effectively subjugated the co-sovereigns in the Federal system.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Consider, for example, the utter lack of comprehension of the fact by an “expert” that the power of the purse should rest exclusively in the hands of those who have the shortest terms of office, thus to increase their accountability for what they do with it to thems what brung ’em.

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

NO, you argue about what James Madison might have wanted done 225 years ago.  I argue about why Madison wanted those things done that way.  It has a lot to do with the fact that the people who argued for and against the document having a much better grasp of human nature, than silly Georgetown Constitutional Law professors.  But then, you’d know that if you actually bothered to read The Federalist Papers and the Anti-Federalist Papers.  They understood that it has always been a tendency of government to gather more and more power onto itself, usually at the expense of the governed.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

As someone who has been studying it for more than 20 years, I am ashamed that a professor of the subject frames his sophistry in such simplistic terms.  First for perpetuating the idea that an elected official in modern times reaches judgment on any course of action that is “best for the country”.  Any practiced observer of the Federal government knows that such an idea would be roundly rejected, and that its proponent would be demonized and vilified at every turn in the feverswamp on the Potomac.  One need only look no farther than “the fiscal cliff” nonsense to see the truth of this, because only in a place largely unfettered from the bounds of reality, like Congress, or the White House, could one seriously subscribe to the notion that you correct a debt created by an obscene spending habit by spending more.  But to then characterize the Constitution and the government  it created as “illegal under existing law” completely disregards the nub of our contention with England, which was the fact that our rights under English law were being subverted by a system of government that did not even pay us the courtesy of token representation and the ostensible ability to dissent, and suggest a different course of action.  It was this recognition that the rights of man were superior than the laws that robbed man of them that made the endeavor a worthy one, because the first duty of government is to punish evil, not to commit it.  It was by no means perfect in its execution, and the men who birthed this new nation and the bylaws that would govern it understood the inconsistency between seeking freedom, while denying it others.  Many of them lamented this compromise, and took it as a great moral failing, even as some of them perpetuated the institution themselves.  But that doesn’t change the fact that it was still a superior system to all that had come before, and carried with it the potential to correct this problem, although I doubt any of them would have properly countenanced the amount of blood that would be shed to do it.  Your silly characterization also does nothing to acknowledge that the government we rebelled against also retained this institution, although not as long as we did, and managed to end it without the horrific bloodshed that accompanied it here.

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

And yet, while the approval of the product of that convention (which was always planned by Madison and Hamilton to replace, rather than patch) was not unanimous, it made the weaknesses and flaws of the Articles of Confederation impossible to ignore, which was the point.  The difference here is that while the blueprint has been significantly altered by people who refused to consider the reasons for the parts they have changed, resulting in a many-headed hydra that hurts more than it helps, largely because it exceeds its authority, and these changes have been manifested largely by an amendment process, which should imply even to the dullest of dullards that this same process can be used to rescind these errors.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

And, by use of the processes made available by it, the excesses of the Alien and Sedition Acts were brought to heel…as they should have been.  By contrast, neither Congress, nor the taxpayer brought a legal challenge to his purchase of Louisiana, suggesting that there exists a flexibility to the document that is often complained to be non-existent.  It also illustrates that the Constitution doesn’t enforce itself, and that enforcement is necessary, because if left to its own devices, the men who fill elected offices will overreach and usurp that which has not been granted to them.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

Your history isn’t quite right.  Lincoln doubted he had authority to free the slaves, and had campaigned with this admission, but the southern states did not believe him, and it wasn’t until the war had already been underway that he issued the Emancipation Proclamation.  Lincoln was guilty of other ultra vires activities during the war with relation to the Constitution, including suspending habeas corpus as it applied to certain members of the press, who successfully argued their cases to the Supreme Court, only to reveal that sometimes being correct doesn’t matter.

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

And yet, your answer to usurpation and the overreach of government is to simply abolish what limitations currently exist.  Truely, the mind boggles.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

Agreed.  Those decisions would be those rooted in the sophistry of “a Living Constitution”, which is really just bullshitese for “We’re going to pretend that it allows us to do this because we wanna do it.”

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

No, and much of the hinderance on growth and prosperity can be linked directly to government’s flagrant disregard for the limitations that the Constitution places upon it.  Growth and prosperity have occurred not because of government disregarding the Constitution, but in spite of it.  Ask any small business owner who has lost countless hours to the compilation and production of reams of information that government has no business requiring of them.  Ask any farmer who can’t irrigate crops because it would be deemed a threat to a species of fish that no one has ever heard of, or loggers idled because of spotted owls, or businesses that never came into existence and individual consumers who spend too much of their income on basic energy needs because a governmental agency has determined that a naturally occurring gas which is also a byproduct of coal power is a pollutant.  You may suffer brownouts because the EPA wants to regulate coal power out of business due to the production of co2, but has no interest in regulating an iota of co2 produced in Congress.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution.

So you’re against the HHS mandate as it applies to businesses owned by the deeply religious, or the Catholic Church, and are against abortion, too?

 We should continue to follow those requirements out of respect, not obligation.

Apparently, I spoke too soon, if you seem to think that we do so now.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor.

Fascinating.  I wonder what criteria you use to determine what “decided matters” really are decided without the benefit of a written Constitution setting forth what is decided.

Nor, finally, should we have an all-powerful president free to do whatever he wants.

Who is going to break the news to the current occupant of the Oval Office?  You know, the one that thinks that Executive Orders are an acceptable alternative to an uncooperative Congress?

 Even without constitutional fealty, the president would still be checked by Congress and by the states.

Your naivite’ is astonishing.  This President continually demonstrates that the only time he considers Congress or the states worthy of consideration is when they are in accord with him.  SB 1070 and his declaring Congress to be in recess when it was not so he could appoint who he pleased to federal positions without their intereference consent is all the proof you need.

There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

Yes.  What is to be said is that to have 9 unelected lifetime appointees imposing anything is tyranny, and contradicts the very nature of a republic.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy.

Certainly.  Because unfettered democracies never devolve into mobocracies, tyrannies, or monarchies.  Those idiots Jay, Hamilton, and Madison (all of whom were obviously better educated than you) had no idea what they were talking about.

The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.

Or we could have a Congress that exercises its lawful authority and call his bluff by cutting of all funding for such operations. But then, that requires greater intestinal fortitude than the current crop in Congress has proven itself capable of.

Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine.

If such grounds are deemed abtruse, I submit that it is only because “educators” such as yourself have such poor command of the subject material that you are incapable of rendering such things easily understandable.

The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

I’m all for that, but we could get there by actually demanding intellectual honesty from the Nine, including a professional accountability with professional lawyers. By that I mean lawyers who actually practice law, instead of the pretend ones who teach it when they can avoid getting their personal agendas in the way first.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

Except that they don’t. Britain continues to trample on its longstanding traditions. Its banning of firearms is a perfect example, as it is directly contrary to what was a longstanding tradition that was essentially codified and described in his Commentaries. I could continue, but the truth is, I’m certain I would just be met with the blank stare that you are undoubtedly giving me now.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences.

Wrong. Our political stability is a direct result of the predictability that results from everyone knowing what the rules are, rather than continually making it up as we go along.

No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

Actually, I have a pretty good idea of what it would look like, especially since we have such a large percentage of the population accustomed to the idea that it is the role of the government to steal from others on their behalf. As for “softening our Constitutional-law addiction”, that is already happening. We already have “experts” who, instead of Barbie saying “Math is hard”, declare ” The Constitution is outdated. The language is archaic and hard to read, and it was written by old white one percenters who didn’t want to pay their taxes and owned slaves n’ stuff.”

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey.

Except that this just isn’t true, and you’d know this if you read The Federalist Papers and the Anti-Federalist Papers. It is only ambiguous or broad if you never bothered to learn what these gentlemen were so kind enough to put into print for posterity. Let me guess…it’s hard n’ stuff, and American Idol was on, right?

It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments.

Nonsense. While slavery was a difficult compromise, the only other thing I can point to as an error was the inclusion of “general welfare”, the nature of which they were specifically warned of by “Brutus”, but frankly given the nature of that exchange, the error was in Madison and Hamilton giving this generation and the last too much credit for an intellectual prowess that too many of us have been too lazy to hone.

Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

The problem with this line of thinking is that Justice Rehnquist has already explained the errors that are rife in it.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

40 years of studying the Constitution, and you haven’t yet grasped that the Constitution doesn’t constrain us, it limits government, which is a good thing.

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