Constitutional fundamentalism and constitutional disobedience

Constitutional fundamentalism

Pretty much everyone in America with an interest in politics holds, hypocritically or not, that politicians and the public as a whole should be faithful to the constitution in judging what is and what is not constitutional, and that our rulers should adhere to constitutionality in their official conduct.

But textualists actually mean it, and in that they are akin to fundamentalists.

Bible and Koran pounders who insist on believing and living by the actual contents of these texts generally have never read them and never will, it is true.

But far more dangerous are the ones who have.

Those texts contain nothing so much as a plethora of fantasies, nightmares, hallucinatory episodes, and horrific delusions asserted as genuine truths with a straight face.

And the rules of conduct they enjoin vary from the repulsive and blood-curdling to the merely absurd.

Only idiots and very, very dangerous men urge that we believe and live by the contents of these books, attending to exactly what they actually say.

It is unfortunately much the same with the American constitution.

The thing made a reasonable degree of sense when first ratified – though a lot less than the ruling class that gave birth to it pretended – but we are well past that, now.

The problem is that our politics is pretty deeply committed to living by that document, much as the Roman Catholic Church and the Southern Baptist Convention are pretty heavily invested in the New Testament.

And what a mess that leaves us in.

Libertarians, a sect of constitutional fundamentalists as mendacious as the others, do not always lie (nor do the others).

They say the census as now conducted by the government is unconstitutional.

They are likely right.

But so is the Air Force.

What on earth are we to do?

And what do we want our politicians to do?

Constitutional disobedience

This bit in the New York Times is a very interesting short history of the constitutional disobedience of many of our officials at crucial junctures that still barely scratches the surface.

The author is Louis Michael Seidman, a law professor who actually wrote a book on the topic.

The professor advises, “Don’t worry; be happy.”

Not bad advice, if meant as Epicurus would have meant it.

But what if we are not happy, in the relevant sense?

What if we are not happy with our subjection to the senate or to that entirely lawless Supreme Court?

What if we are not happy with a presidency capable of launching and fighting an entire bloody and very stupid war in Korea at the middle of the last century without even a glance at congress for so much as a nod of permission?

He is right to emphasize that actual issues and actual results matter.

But what if we are not happy, in the relevant sense, with the practical results of living with the institutional arrangements now in place that he is perfectly content with?

And what if we know very well that the results suck because of our shabby institutional arrangements and often because of institutional lawlessness?

He is telling us the fundamental question of politics, who shall exercise power and how, does not matter so long as the going is good.

[Aside:

Seidman is not just saying this constitution should be blown off.

He is saying any constitution should be blown off.

He is rejecting the idea of constitutional and lawful government by compact.

/Aside]

His is the bland assurance of a numbskull.

As if there were no connection at all between the answers to those questions about power and whether or not the going is good.

And as if somehow we could and should all agree whether or not the going is good, or even how to begin to tell.

Here and elsewhere, he merely dodges and does not seriously address the problems of evaluating, tailoring, controlling, and changing institutions.

The man is a useless waste of time.

And an adverse judgment does not commit one to constitutional fundamentalism.

Bainbridge

Note the links to reactions.

It is noteworthy I have not found even one adverse reaction from a liberal.

Also conservatives are not favorably impressed, though their arguments also suck.

National Review

NR, again

NR a third time

John Vecchione’s article, for example, contains some good points.

But his essential claim that the entire problem of constitutional legitimacy has been brought on by nothing but wicked liberal over-taxation and entitlements is itself mere sewage.

The Chronicle article

Basically, this all just looks like more liberal smoke to make the constitutional usurpations of liberal black robes look really OK, and even all to the good.

The real purpose and function of what he says is to lull us into comfortable but academically respectable acceptance of the regime of lawless liberalism.

It is savvy, sophisticated, and partisan political bullshit.

While it is hypocritical to pretend we want officials to abide by and enforce the law, the whole law, and nothing but the law, all the time and without exceptions, the professor, too, is a hypocrite, with his silly lesson that he really is OK with anarchy and we should be, too.

And his argument that it would be fine for all officials to just do what they want because, beneath it all, that’s all anyone ever does, anyway, is stunningly obtuse.

We are right that he cannot be that stupid.

We are right that the liberals who praise and pretend to respect his work are not that stupid.

And we are right to recall that intentional stupidity is often a key feature of the voice of power, liberal power as much as any other.

It is a way of demonstrating power that a party or a man can talk such utter rot and make you lap it up.

Or at least that he can do it and show us all the important people treating his eyewash with the utmost respect, not a single one of them laughing in his face.

War is peace.

And we have always been at war with Eastasia.