Friday, October 08, 2010

A Friday Question

So why is it that the very same people who claim the staunchest fealty to the Constitution -- and are most inclined as an ideological bloc to claim authority as its interpreters -- are also most inclined to call for amending it, usually to get rid of the inconvenient stuff they don't like?

19 comments:

Whitney said...

Well to be fair, they may simply believe that there is a mechanism for changing the Constitution, and that change should only be made using that mechanism. I don't see it necessarily has hypocrisy.

Paul said...

Read Article 5 of the Constitution, then rethink this post. Amending the Constitution IS constitutional.

dcat said...

Sigh.

Thanks for the pedantry, Paul. Because naturally I needed you to come in and lecture me about reading the Constitution. And about Article V.

But of course at no point have I ever ever ever denied that there is both a mechanism and sometimes a justification for amending the constitution. Never. And so reminding me of that mechanism is a bit beside the point and is certainly irrelevant to my post. Red Herrings and Straw Men are easy to defeat.

The point, which isn't that hard, is that those most inclined to lecture the rest of us about the Constitution, to tell us to read it, to wax eloquent about its perfection, are the very ones who most want to change it to fit their spur of the moment ideological leanings. That is, they are the ones who most want to use what they want the rest of us to think that they believe is a sacred document as a political tool, not as the sort of document they purport to cherish. They want to use their reading of the Constitution as a weapon to club and "teach" the rest of us even while they want to manipulate that document for their own ends.

So, no. I don't think I need to rethink my post. The question stands, and it stands unanswered. because there really is no good answer to it.

dcat

Stephen said...

...because they respect the constitution as written they want any changes they make to be constitutional, rather than coming from a "living constitution" interpretation of the constitution.

dcat said...

Aren't these the same people who don't seem to grasp the fact that "unelected judges" on the Supreme Court are also a part of the Constitutional fabric or that the Supremacy Clause is airtight?

They love the Constitution so much that they think it needs to be changed a lot and that we don't understand it with their depth. It's bullshit. And it's dishonest bullshit. And it's hypocritical bullshit.

From the linked article:

"Virginia and Idaho both claimed the constitutional right to pass “nullification” laws that would prevent the bill from being enacted in their states. And a number of red states have already passed “state sovereignty” resolutions, which, while nonbinding, are essentially notices to the federal government to “cease and desist any and all activities outside the scope of their constitutionally delegated powers.”

Taken to the extreme, this “Tenther” philosophy holds that most social programs—including Medicare and Social Security—are unconstitutional. And, as some critics have noted, the vision of government power being promoted by many Tea Party members, in which states can shoot down any laws they don’t like, isn’t exactly what the Founding Fathers had in mind. “They keep talking about the Constitution, but by weakening the federal government, what they’re actually trying to do is go back to the Articles of Confederation,” says David Gans of the Constitutional Accountability Center. “And that was a failure—it’s what led the Framers to move to the Constitution.”"

No one disagrees that we have the ability to change the Constitution, which is why it's so giggle inducing for Paul to pretend he's brought a revelation to the table. But what is so amazing to me is that the people who most claim to venerate the Constitution find the most wrong with it even while impugning the fact that the rest of us don't love it (or, I guess, parts of it) with their zeal.

dcat

Paul said...

Uh...if I'm not mistaken, the Virginia and Kentucky Resolutions were authored by two of the founding fathers, Jefferson and Madison. In response to federal laws that violated the First Amendment to the Constitution.
This debate could be worthwhile if people would quit being so stubborn and obtuse.

Paul said...

*“They keep talking about the Constitution, but by weakening the federal government, what they’re actually trying to do is go back to the Articles of Confederation,” says David Gans of the Constitutional Accountability Center. “And that was a failure—it’s what led the Framers to move to the Constitution."*

Such a mischaracterization, but what else would I expect? Set up straw man, knock down straw man. Seems to be the theme in this entire post.

dcat said...

Um, you started this discussion by your whole patronizing "read Article V" nonsense.

I'm curious where I am being stubborn and obtuse (and how about not being a pussy about it? Some people? This form the guy, by the way, who bitches about use of ad hominem argumentation and who creates his own straw man to start this whole thing off -- who ever said amending the Constitution was not Constitutional?)

I think I tend to have pretty reasonable views about the Constitution. Liberals need to recognize that the second Amendment exists, it's real, and even if poorly written its meaning is not all that vague. Conservatives need to stop trying to legislate by the Constitution. And every asshole who tries to claim their understanding as the true understanding really needs to stop being that asshole.

And I don't think I'm being unreasonable here in not wanting to be lectured to about the sanctity of the Constitution from the same people who think the Constitution is riddled with problems. I am happy to have a discussion on the merits of any of these issues, but not from people who claim to know more about the Constitution than I do, because I'm usually going to place the bet that they actually don't.

As for the assertions about Madison and Jefferson -- at what point have I ever said that either the Founders were sacred and thus ebyond criticism or that there were not significant debates about the Constitution among the Founders? Talk about creating false targets for arguments. I'm happy to have a reasonable discussion about these things. But when your FIRST broadside here is to pull the shit that you pulled, well, don't expect to be treated like someone whose views I need to respect. You'll notice that Whitney made much the same point that you did, but better, and without being a dipshit about it.

dcat

Paul said...

Yes, you're being stubborn and obtuse. You refuse to recognize the legitimate concerns of the other side of the aisle. We aren't advocating having states nullify "laws we don't like." We are advocating having states nullify laws that are unconstitutional. You have totally mischaracterized that position. And I can't speak for everyone, but most Tea Partiers aren't advocating amending the constitution in response to the shifting winds.

Sorry about my first comment; I wanted to keep it short and I came off like a jerk. My point was a reaction to a point you made that "people who claim loyalty to the constitution want to amend it to get rid of the inconvenient stuff they don't like" Why, yes, that's possible. It's possible to support the overall document, but realize that it has flaws and work to amend it to fix those flaws. I think that's a better position than the alternative which is to simply disregard parts of the constitution you don't like. ("living Constitution")

I brought up the VA and KY resolutions, because you tried to make the point that nullification was not what the founding fathers had in mind. (*And, as some critics have noted, the vision of government power being promoted by many Tea Party members, in which states can shoot down any laws they don’t like, isn’t exactly what the Founding Fathers had in mind.*) Again, that's a mischaracterization.
Yes, some of the founders did advocate the states acting as a check against federal encroachments that violated the Constitution.

dcat said...

Paul --
Let me try to address your concerns point by point (in two partys since apparently on my own blog I cannot write comments as long as I want them), you in quotation marks, me prefaced by *:

"Yes, you're being stubborn and obtuse. You refuse to recognize the legitimate concerns of the other side of the aisle."

* Am I? I don't think there has been enough of a discussion to make these sort of categorical assertions. But ok.

"We aren't advocating having states nullify "laws we don't like." We are advocating having states nullify laws that are unconstitutional."

* I'm curious which of these laws are categorically unconstitutional (none so far and I believe none, period), but I have not been talking about any legislation, I have been talking about trying to overturn Constitutional amendments that by definition are not unconstitutional.
"You have totally mischaracterized that position."

* I don’t think I have.

"And I can't speak for everyone
but most Tea Partiers aren't advocating amending the constitution in response to the shifting winds."

*I never said that "most" are. But many prominent spokespeople are. Your issue might be with them. Believe it or not, my post was aimed at the many folks the linked article refers to and the many more who believe that same way. I don't think we have any real sense of what "most" Tea Partiers stand for except for broad statements of principle that have yet to be tested in office.

dcat

dcat said...

Part II:

"Sorry about my first comment; I wanted to keep it short and I came off like a jerk. My point was a reaction to a point you made that "people who claim loyalty to the constitution want to amend it to get rid of the inconvenient stuff they don't like" Why, yes, that's possible. It's possible to support the overall document, but realize that it has flaws and work to amend it to fix those flaws. I think that's a better position than the alternative which is to simply disregard parts of the constitution you don't like. ("living Constitution")"
* Fair enough. But of course it is not only liberals who believe in the concept of the "living Constitution." Again, see the article to which I referred -- Lindsay Graham, not some Godless liberal, is the one who says that today's world might make the 14th amendment irrelevant. Inasmuch as the Constitution is also the result of Supreme Court cases establishing doctrine I've never been clear as to why a "living Constitution" is so objectionable. But that may be another discussion.
"I brought up the VA and KY resolutions, because you tried to make the point that nullification was not what the founding fathers had in mind. (*And, as some critics have noted, the vision of government power being promoted by many Tea Party members, in which states can shoot down any laws they don’t like, isn’t exactly what the Founding Fathers had in mind.*) Again, that's a mischaracterization.
Yes, some of the founders did advocate the states acting as a check against federal encroachments that violated the Constitution."
* Nullification is, however, pretty much null and void as Constitutional doctrine. This is my problem with evoking the Founders whenever we want to deny that we live in a different world: They were not always right. (See, oh I dunno: the 3/5 clause.) Nullification flies in the face of the Supremacy Clause, and frankly whenever I see "nullification" invoked I get a bit itchy inasmuch as it reminds me of two historical moments: 1) the pre-Civil war era and 2) Massive resistance to the civil rights movement. That might not be fair for this moment, but sometimes oppositional tactics are burdened with a legacy they don't want to claim.
I have no real issue with trying to amend the Constitution. I do oppose legislating by Constitution, and I do resent being lectured to about the perfect nature of the Constitution by people who only see its perfection selectively. Hey, hitch your wagon to overturning the 17th Amendment. Let me know how that turns out.

dcat

dcat said...
This comment has been removed by the author.
dcat said...

The last comment that I removed was a double post. Apologies. You did not miss anything juicy.

dcat

Paul said...

I don't have access to the article; having access might further my understanding of your conclusions.
I'm assuming most of this contention is over the states resisting components of Obamacare? No?

Lindsey Graham is not a conservative. In fact, the Tea Party can't wait to get rid of him next cycle.

It's unfortunate that states have lost the clout necessary to challenge federal law because of things that happened in the past. The states are a necessary component in the federal system in that regard. The 10th amendment and the Supremacy Clause conflicting is a worthwhile debate (The Supremacy Clause states that "all laws which shall made in pursuance thereof" are supreme which leads one to think that if a law is no made in pursuance thereof, then is should be challenged in some way)

I would love to overturn the 17th amendment (and the 16th, as well).

Paul said...

Repeal, not overturn. Didn't know if that needed to be cleared up.

dcat said...

Paul --
Lindsay Graham sure is a conservative. He may not be your kind of conservative, but he's a conservative.
The article is not about healthcare at all. It really is about repealing Constitutional Amendments.
I'll also take the privileges and immunities clauses as defending full-on federal authority.
I'm afraid I just cannot take seriously calls to repeal the 16th amendment until I see concrete proposals as to how to curb spending that leaves defense on the table. No one has yet implemented any reasonable list of cuts that are also viable politically under a GOP administration, never mind under Democrats. I'm always amused by the patterns by which conservatives find thriftiness to be a virtue.
I'd happily engage in the campaign against repealing the 17th. "Conservatives want to take your vote for Senate away from you." The scare tactics (just because they're scary doesn't mean they aren't true!) just roll off the keyboard. I don't understand how people can complain about political elites on the one hand and then want a group of political elites to supplant our ability to vote for the Senate. I know that the case can be made that you would have that vote in your vote for representatives, but that seems pretty feeble. I'm also not sure how that makes anything better. It seems like an underwear gnomes sort of solution. Now, the Senate is just about the least democratic institution in the world, so I'd love to see it reformed. Yes, we are a republic, but we are a republic with a whole lot of democratic processes. Until some candidate wants to get up and run against democracy, I'll happily use "democracy" as a useful descriptor for what America is supposed to represent.
In any case, repealing the 17th is simply not going to happen. It's sound and fury.
As always when it comes to States Rights discussions, my question is always: The States Rights to do what? The record of the states is, I'm afraid, pretty wretched in places where States Rights have been invoked. It doesn't mean the 10th amendment shouldn't matter. But the question should always be what rights are they claiming. After all, when the Supreme Court shot down Washington's handgun law I cannot help but think that conservatives didn't see it as an encroachment of local rights nor did they see it as something they would have swallowed had it been Maryland, not Washington, DC.
And of course when it comes to courts overruling legislatures, the activist judge thing and respecting the states and all that, well, the two justices on the Supreme Court that have voted to do that most often are Scalia and Thomas, but Ginsburg is third on the current court, so I don't think anyone on this court (or the last -- those numbers come from pre-Sotomayor) has much ideological purity, and that might be a good thing.

This is at least better than us shouting at one another. Dumbass.

dcat

Ken said...

If I may, some important context regarding the VA and KY resolutions. Firstly, nullification was by no means the only response to constitutional action at the time. In fact, far more headway was made through legitimate constitutional channels - in particular widespread petition campaigns from Pennsylvania. See Douglas Bradburn in the William and Mary Quarterly on this and (self-publicity alert) parts of my hopefully forthcoming thesis.

The point being, that while Jefferson and Madison were behind the VA and KY resolutions, they were never accepted as having constitutional force - and really, there was no attempt to use any sort of enforcement mechanism on the part of Jefferson or Madison either. The hope was much more that they could use it as some sort of show of popular agitation that they could use for further legislative action.

Dcat - you're right, the hypocrisy of the right on constitutional matters never ceases to amaze me. You can't venerate the timeless values and original intent of the Framers in one breath and then use amendment as a get-out clause in the next.

dcat said...

Ken --
I think the important takeaway from what you write is that invoking "The Founders" almost inevitably turns into an empty exercise, because they believes many, many different things and the Constitution is largely the result of compromises among those things. And when we start looking outside of the Constitution it becomes problematic not as a historical exercise -- that's great (and yes, it is self interested for a historian to say as much) -- but rather as a policy exercise it is problematic. For example, many of the ideals expressed in the Declaration of Independence are embedded explicitly in the Constitution. Some are not. So are those things that are not still fair to invoke in order to get at policy questions related to Constitutional questions that may not be that clear? Certainly as much as the Virginia and Kentucky resolutions, and I'd argue much moreso.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This seems to me to be a pretty good guideline to the Framers, but invoke them and many conservatives will point out indignantly that this is not in the Constitution.

I think everyone can be hypocritical about the Constitution, but I also think that the more ideological purity someone subscribes to, the more hypocrisy is just around the corner. And that's not just true with the Constitution, as even a rudimentary glance the history of the US budget deficit will reveal.

dcat

Mojoranger said...

Paul makes a comment that shows how close the Tea Partyers are to pulling the Republican Party apart when he states that Lindsey Graham is not really a conservative. The situation has devolved into a litmus test for conservative purity or you better keep your mouth shut. These mostly latecomers hark back to the greatness of Ronald Reagan, but Reagan was not afraid of compromise when necessary, and he made the Republican Party the "big tent party" while understanding that there are not enough die hard conservatives to govern without the help of those whose conservatism contains shades of gray.
This same phenomena struck the Democrats after LBJ's presidency when the intellectual leftists splintered the coalitions that kept the New Deal Democrats in power all those years.
Too many of these Tea Party activists, suddenly stirred by their political interest for quite possibly the first time in their lives, like those intellectual snobs of the left, can't imagine why any thinking person would possibly disagree with them, so their power grab will last forever. All these like minded rightists will solve all the world's problems, everyone will be convinced of the error of their ways, and we'll all live happily ever after.
Fortunately, for those of us who embraced conservatism years ago, they, like most populist movements that spring up in every economic crisis, will fade away once the economy recovers and prove their self-righteousness was really only disguised self-interest.