The pseudonym "Philo Vaihinger" has been abandoned. All posts have been and are written by me, Joseph Auclair.

Monday, April 8, 2013

A straw in the wind?

Will Calhounism doom DOMA? And is that a bad thing?

It scares Armando, as indeed it should.

Resurgence of just a smidgen – a conservative smidgen – of constitutional rectitude can put not only the Big Government achievements of progressivism in danger but also the constitutional fakery that played such a role in the sexual and civil rights revolutions of the 20th Century.

The same could be said for much of the civil liberties revolution affecting the rights of defendants, prisoners, and people in the hands of the police over the same period.

Armando is right to see that DOMA and Proposition 9 raise different issues, the first concerning Article I and the 10th Amendment and the second concerning the 14th Amendment.

And a victory for the “states’ rights” side on the former is compatible with a loss for the textualist side on the latter.

But don’t count on things staying that way for long.

For those keeping score, the Big Government achievements of liberalism mostly, though not entirely, exceed the powers of congress and the authority of the federal government as specified in and created by the constitution, and most relevantly in Article I and the 10th Amendment.

The constitutional quackery that played such a role in the civil rights, civil liberties, and sexual revolutions is all based on egregious nonsense about the 14th Amendment.

Conservative attacks in the former area are far more dangerous, potentially.

Blue state governments might try to pick up some of the Big Government slack for their own citizens, but it is not clear how far they could do so with red states refusing to do the same.

Nor could they do this at all if the conservatives decided to revive the kind of nonsense readings of the due process clauses of the 5th and 14th Amendments, and other capitalist-friendly bits of the constitution, that were typical in the late 19th Century and lingered as late as the Great Depression.

Instead, every state could be faced with a "new," conservative US constitution banning unions, wages and hours legislation, workplace safety legislation, workers compensation, unemployment compensation, or any other kind of progressive legislation a revival of the jurisprudence of the Lochner era could kill.

And you can probably forget any hopes for state level environmental controls, too; national controls would be long gone.

The libertarians and fiscal conservatives would be all in favor of all of the above and the only tribe of conservatives who even might be opposed would be the Christian right.

And the others could buy them off, as they always have, by allowing them the freedom currently denied them by a  relatively liberal and libertarian reading of the First Amendment and by its dishonest incorporation into the 14th.

They might even buy off the Catholic clergy, despite their official social teaching, by allowing state authorities to control all our sex lives, again, and to prohibit abortions.

And as to that, and on the other hand, blue states could go quite a bit further to the left with regard to civil rights, civil liberties, and the sexual revolution while red states lurched happily to the right.

People living in Alabama might end up getting divorces in New York that Alabama will have to honor, as once upon a time blue-nosed Massachusetts had to honor divorces people got in Nevada.

And people living in Alabama might fly up to New York for a gay wedding weekend, knowing Alabama would have to honor that, as well.

It would all get pretty strange, at best.

More likely it would be utterly awful and make for a union far from satisfactory and far from stable.

Frankly, I would hope that it would never come to this.

But if the conservatives start to insist on constitutional purity just where and because it would undermine progressive achievements then anybody who isn't bright red needs to start thinking of a way out.

And a new constitutional convention convened at the behest of and by the blue states to draft a constitution for a new union acceptable to them that the red states can join if they want or stay out of if they want might be the only way progressives can beat the ravenous plutocracy now chomping at the bit for the power over the whole economy such a conservative revolution in the law would cause.

Because, as anyone knows, the conservatives mean to take power over the national economy out of the hands of the federal government not to hand it over to the states but to had it over to the Big Money, the plutocracy, and the corporations.

As for the legitimacy of such a progressive response, blues have the ample precedents of the Revolution and then the convention at Philadelphia.

When conservatives inevitably denounce the blue states for secession and cite blue adulation of Lincoln and his Civil War as proof of their hypocrisy the blues can remind them secession to preserve slavery is one thing and secession to preserve a modern and democratically acceptable government would be quite another.

And, besides, the strategy here recommended for blues no more involves secession than did the strategy of the American nationalists who met at Philadelphia and promptly decided to draft a whole new constitution to go into effect for any nine or more of the thirteen states ratifying it even if all the others chose to refuse and thus exit the union, themselves.

Update 041013.

Easier to just let go, isn't it?

As the good professor Seidman says, "Don't worry. Be happy."

Just forget it and lapse into chronic and permanent constitutional disobedience.

Maybe.

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