About that US Constitution, again

Some comments at No More Mr. Nice Blog, provoked by something Ted Cruz said.

Blogger Philo Vaihinger said...
Loving was wrongly decided and the incorporation doctrine is bogus, anyway.

Which tells you we have a largely obsolete constitution, not much like what we really want today.

And Cruz, a natural born citizen of Canada ineligible for the presidency of the US, is right about 5 unelected people in black robes lying about the constitution to force change on society being in general not a good idea, even if historically the lies told by the Supremes of the late 20th Century and more recently have generally been done to very desirable political effect.

Though his support for values pluralism among the states is doubtless fake.

Once upon a time in the 19th Century America refused to admit Utah into the Union unless it abandoned polygamy.

Ask Cruz about that, while you're at it.

9:32 AM Delete
Blogger Philo Vaihinger said...
About incorporation, libertarians and some conservatives currently agree with some liberals in holding that the privileges or immunities clause in fact makes the 14th Amendment do what people used to say the due process clause made it do, make constitutional rights previously only good against the general government equally good against the states.

But the thing is a near-mindless repetition of the privileges and immunities clause of the Articles of Confederation and Article IV of the US Constitution.

To accomplish so revolutionary a change as the Incorporation Doctrine contemplates, language clearly intending just that would have been used and the thing would have been sharply and clearly controverted and discussed during drafting and ratification.

What did happen was considerable muddle and confusion between (a) the rights of persons and the rights of citizens, (b) preventing states from denying rights to the freedmen previously afforded by them to free whites, (c) preventing states from denying rights to freedmen or others that already existed according to the pre-Civil War constitution and (d) extending constitutional guarantees against certain sorts of behavior by the federal government by prohibiting those same sorts of behavior to the states (incorporation).

And in any case the ID is not an unambiguous win for liberalism, given for example the prevailing reading of the Second Amendment.

The equal protection and due process clauses were intended as responses to the behavior of states that in a very literal way denied both to the freedmen, leaving them exposed to terrorism at the hands of both white civilians and white government officials.

Liberal readings of both are useful lies - as is the liberal reading of the Second Amendment and pretty much any liberal reading of any part of the constitution.

The constitution is obsolete, as I said.

Blogger Jeff Ryan said...
@Philo Valinger: To dispense with the obvious first, "conservatives" have purposely misconstrued the Second Amendment for years in order to derive a meaning they like, instead of what is clearly the Amendment's purpose. Which you clearly don't get. (Hint: When Congress means something, they usually allude to it.) Factually, and purposefully, the Second Amendment applies only to the federal government. That is why Madison created it, and why it was enacted. But as a result, your constitutional arguments on other provisions suffer from misunderstanding as well.

There is zero evidence - and zero means "none" - that the "privileges and immunities" clause is to be interpreted in the manner you suggest. For one thing, "libertarians" would have been viewed by the Framers as idiots. And that's just for one. But a pretty big one.

There are certainly very good arguments against the Fourteenth Amendment incorporation principle, though Madison would have applauded it. But to claim that the "privileges and immunities" clause accomplishes what the Fourteenth Amendment incorporation principle accomplishes would have, if true, saved Madison a lot of time. It didn't, because what you and "libertarians" argue is far from the what the "privileges and immunities" clause was ever intended to do. 

History matters. And the Framers weren't fools. 

Ryan is an ignorant noodle, way off on things too numerous to address in even an over-long string of over-long comments.

So I replied only with this.

9:25 PM
Blogger Philo Vaihinger said...
You misunderstand me, I am on the side of the liberals, on most things. 

Even, mostly, when they have to do great and important good things by lying about the constitution, itself an illegal product of an illegal convention that was illegally adopted to replace the Articles of Confederation, themselves the improvised product of bloody revolution.

It would be too much to describe the constitution at any time as wholly satanic, and it would have been better to bring liberal values into it through the amendment process, but surely, for example, somebody had to somehow turn the right to an attorney into a positive right good not only against the general government but also against the states, eh?

Somebody had to somehow rip the power of the law out of the hands of Christianists (as Andrew Sullivan calls them).

Somebody had to somehow rip the power of the law out of the hands of racists who used it to carry out their agenda of hatred and malice.

And nobody else was doing these things, at all.

So liberal judges did them.

Be glad somebody did.