The Supremes today cancelled the freedom of the electors to save the republic from the idiocy of the voters by cancelling their authority to actually choose the president.
On the other hand, affirming their authority to make their own choice would invite far more widespread faithlessness motivated and inspired by shocking new levels of skulduggery and corruption.
Most of the time, the rules of the states lead to results that mirror the popular vote nationally.
Admitting the freedom of the electors could lead to results that far more often defy the national popular vote.
So this utterly dishonest decision is more than welcome.
Supreme Court rules 'faithless electors' can't go rogue at Electoral College
They affirm that state constraints on the votes of electors are constitutionally OK and can be enforced, though where they don't exist the electors are free to vote as they choose.
Nor does it seem they pronounced the faithless votes of faithless electors invalid.
They regard the electors as mere agents who must do as they are told. If they are told.
The 538 people who cast the actual votes for president in December as part of the Electoral College are not free agents and must vote as the laws of their states direct, the U.S. Supreme Court ruled Monday.
"Because it would be stupid" is not a reason to disbelieve that the constitution says or does something.
Nor is it a good reason to disbelieve the constitution does not say or do something.
But it's a good, if contestable, reason to say that the constitution says or does something, or that it does not.
Showing posts with label Constitutional Realism. Show all posts
Showing posts with label Constitutional Realism. Show all posts
Monday, July 6, 2020
Saturday, May 16, 2020
Constitutional disobedience.
Whole swaths of the foolish thing are honored largely - some exclusively - in the breach.
Supreme Court appears poised to let states keep 'faithless electors' out of the Electoral College
The electoral college is a blot on democracy. The Supreme Court shouldn't make it worse
Of course, punishing them after the fact does not invalidate their votes, and the punishments are not such as to deter anyone serious.
Some state laws do purport to invalidate the votes of faithless electors, but I don't know how that works out in reality.
Some state laws forbidding faithlessness neither punish it nor invalidate faithless votes.
Wikipedia.
The Supremes dare not just shit-can the EC in favor of direct popular election of the president since that would reveal the nudity of the King who professes to wear robes emblazoned, "I am an honest jurist. I only enforce what the Constitution actually says, making it prevail always in all things. My vote never reflects my judgement of what is desirable or best in defiance of what the Framers gave us. Oh, my, no. Never that."
However thin the robes may seem.
Justice Brett M. Kavanaugh asked during the argument in the Washington case whether the court ought not to be guided by what he called “the avoid-chaos principle of judging.”
I imagine the remark greeted with much hilarity. But likely not. Notoriously humorless, these robed bureaucrats.
Supreme Court appears poised to let states keep 'faithless electors' out of the Electoral College
The electoral college is a blot on democracy. The Supreme Court shouldn't make it worse
Of course, punishing them after the fact does not invalidate their votes, and the punishments are not such as to deter anyone serious.
Some state laws do purport to invalidate the votes of faithless electors, but I don't know how that works out in reality.
Some state laws forbidding faithlessness neither punish it nor invalidate faithless votes.
Wikipedia.
The Supremes dare not just shit-can the EC in favor of direct popular election of the president since that would reveal the nudity of the King who professes to wear robes emblazoned, "I am an honest jurist. I only enforce what the Constitution actually says, making it prevail always in all things. My vote never reflects my judgement of what is desirable or best in defiance of what the Framers gave us. Oh, my, no. Never that."
However thin the robes may seem.
Justice Brett M. Kavanaugh asked during the argument in the Washington case whether the court ought not to be guided by what he called “the avoid-chaos principle of judging.”
I imagine the remark greeted with much hilarity. But likely not. Notoriously humorless, these robed bureaucrats.
And, anyway, Republicans don't want popular election because they do like their EC wins.
"Faithless elector" laws preserve those wins.
Thursday, August 15, 2019
They are shocked, shocked!
Five senate Democrats are shocked and appalled that Republicans' readings of the constitution reflect their politics and sometimes favor the interests of Republican constituencies or donors.
And they warn darkly that, if the Supremes don't rule as they desire on a Second Amendment case now before them, the already wavering trust of the American people in the judicial integrity of the court will be further compromised and the public may demand it be restructured to reduce the influence of politics.
They threaten court-packing, in other words.
The opening salvo, the first of many to come, in a barrage of propaganda aiming to soften up public opinion and prepare it for just such a move, that many Democrats, including me, think the Dems ought to do if they can, as soon as they can?
Maybe.
And I suppose it was inevitable that such Dem propaganda would have to pretend, as Republican propaganda about interpretation of the constitution always does, that there is a single reading, or a narrow range of readings, of the constitution that any honest and objective student of the thing would arrive at, sufficient to decide all or damned near all cases or controversies, and especially cases in which the political, social, cultural, legal, or economic stakes are greatest.
But that is a fantasy suitable for children, like Santa Claus and the Elf on the Shelf.
The truth, entirely contrary to that notion, is that the constitution is so riddled with obscurity, generality, and imprecision of language and so undermined by glaring lacunae that nothing at all can get to readings sufficiently lucid and apposite to decide controversies but the political, moral, religious, or other personal and somehow relevant beliefs, commitments, or even interests of the reader.
Even the question whether and how far judges must feel themselves bound by what they admit to be, as there will be in many but by no means all cases, the evident meaning of some key passage of the thing, can be decided on no other basis than these.
And it is also a fantasy that people do not understand all that very well, and that just that is why the parties' choices of not only judicial philosophies or constitutional interpretations but of judges are entirely and necessarily a function of the political, moral, religious, or other somehow relevant beliefs, commitments, or interests of their members, constituencies, or donors.
But the broad masses include the massively stupid and naive.
And so the multiple and manifold lines of propaganda brought forth for this fight must include threads variously addressed to diverse elements of the constituencies involved.
To Save a Bad Gun Law, Democratic Senators Threaten the Supreme Court
It is a bad gun law, by the way.
Update 081819.
It's also possible this will, and may have been intended to, warn off the Supremes from overturning Roe or anything significantly related to it.
And they warn darkly that, if the Supremes don't rule as they desire on a Second Amendment case now before them, the already wavering trust of the American people in the judicial integrity of the court will be further compromised and the public may demand it be restructured to reduce the influence of politics.
They threaten court-packing, in other words.
The opening salvo, the first of many to come, in a barrage of propaganda aiming to soften up public opinion and prepare it for just such a move, that many Democrats, including me, think the Dems ought to do if they can, as soon as they can?
Maybe.
And I suppose it was inevitable that such Dem propaganda would have to pretend, as Republican propaganda about interpretation of the constitution always does, that there is a single reading, or a narrow range of readings, of the constitution that any honest and objective student of the thing would arrive at, sufficient to decide all or damned near all cases or controversies, and especially cases in which the political, social, cultural, legal, or economic stakes are greatest.
But that is a fantasy suitable for children, like Santa Claus and the Elf on the Shelf.
The truth, entirely contrary to that notion, is that the constitution is so riddled with obscurity, generality, and imprecision of language and so undermined by glaring lacunae that nothing at all can get to readings sufficiently lucid and apposite to decide controversies but the political, moral, religious, or other personal and somehow relevant beliefs, commitments, or even interests of the reader.
Even the question whether and how far judges must feel themselves bound by what they admit to be, as there will be in many but by no means all cases, the evident meaning of some key passage of the thing, can be decided on no other basis than these.
And it is also a fantasy that people do not understand all that very well, and that just that is why the parties' choices of not only judicial philosophies or constitutional interpretations but of judges are entirely and necessarily a function of the political, moral, religious, or other somehow relevant beliefs, commitments, or interests of their members, constituencies, or donors.
But the broad masses include the massively stupid and naive.
And so the multiple and manifold lines of propaganda brought forth for this fight must include threads variously addressed to diverse elements of the constituencies involved.
To Save a Bad Gun Law, Democratic Senators Threaten the Supreme Court
It is a bad gun law, by the way.
Update 081819.
It's also possible this will, and may have been intended to, warn off the Supremes from overturning Roe or anything significantly related to it.
Saturday, February 16, 2019
Agenda driven interpretation of the law as well as the constitution is the norm, people
So candidates seeking senate confirmation should not be allowed to be coy.
Of course, they will lie then, and claim later they just "saw the light".
One fact among many that count against life tenure.
Appeals Court Rules Key Anti-Age Discrimination Protections Don’t Apply To Job Seekers, Only Employees
Of course, they will lie then, and claim later they just "saw the light".
One fact among many that count against life tenure.
Appeals Court Rules Key Anti-Age Discrimination Protections Don’t Apply To Job Seekers, Only Employees
Sunday, February 10, 2019
The frayed pretense that judges aren't chosen precisely on that basis
Judicial nominees are changing their approach to the 'Brown v Board' question at Senate hearings
They all have wide ranging and extensive opinions on these things.
Law students, legal scholars, lawyers, and sitting judges harbor detailed and numerous opinions as to what was rightly or wrongly decided.
That is how they form themselves into legal genera, Democrats or Republicans, soi-disant partisans of strict or broad construction, of historic understanding or answerability to contemporary social needs, of the black letter document or invisible but inherent whatnots and penumbras.
So why be so coy when everybody knows it is on exactly the basis of what they are pro or con that they are chosen for nomination and supported by one party or the other?
It is perfectly true that Republican jurists are rather likely to think Brown, Roe, and lots of other cases where liberal views were affirmed to have been wrongly decided, and it is because Republicans want those decisions overturned that they want these judges on the bench.
And it is perfectly true that these preferences and views are as far from the American political center as are all the other aspects of the conservative war on what progressives have made of our government, laws, and society over the last hundred plus years.
A point that cannot be made often enough.
None of the conservative agenda is centrist.
And especially not the parts espoused by Schultz.
They all have wide ranging and extensive opinions on these things.
Law students, legal scholars, lawyers, and sitting judges harbor detailed and numerous opinions as to what was rightly or wrongly decided.
That is how they form themselves into legal genera, Democrats or Republicans, soi-disant partisans of strict or broad construction, of historic understanding or answerability to contemporary social needs, of the black letter document or invisible but inherent whatnots and penumbras.
So why be so coy when everybody knows it is on exactly the basis of what they are pro or con that they are chosen for nomination and supported by one party or the other?
It is perfectly true that Republican jurists are rather likely to think Brown, Roe, and lots of other cases where liberal views were affirmed to have been wrongly decided, and it is because Republicans want those decisions overturned that they want these judges on the bench.
And it is perfectly true that these preferences and views are as far from the American political center as are all the other aspects of the conservative war on what progressives have made of our government, laws, and society over the last hundred plus years.
A point that cannot be made often enough.
None of the conservative agenda is centrist.
And especially not the parts espoused by Schultz.
Sunday, September 30, 2018
"Supreme Myths"
I would buy it, but even Amazon wants more than 40 bucks, and that's for the Kindle edition.
Can the Supreme Court be saved?
18 years is way too long.
This is a common thread that ties Segall's two books together.
Anyone in that situation -- a lifetime appointment -- would tend to succumb, but originalism is an especially deceptive “just-so story” that only makes that tendency worse.
It meets a lot of psychological needs, in Segall's view, not just for judges, but for the broader public as well.
“When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions,” Segall writes in “Originalism as Faith.”
“In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.”
But originalism simply doesn’t work.
It can’t work as advertised, because the constitutional text isn’t clear enough, and therefore it doesn’t work in fact. Nor does any other supposedly nonpolitical interpretative approach, however.
In “Supreme Myths,” Segall describes the post-Civil War "legal tender" cases, in which the court first ruled paper money unconstitutional, but reversed itself just 15 months later, after two new justices joined the court.
“The new majority pointed to no new facts or arguments supporting its reversal of the prior decision,” Segall writes.
Originalism may be the most popular mask for political decisions, but it’s not the only one. Still, it’s the most potent, and the most dangerous.
“Virtually every constitutional law case" decided by the Supreme Court, Segall told Salon, "involves text that is imprecise, unclear, vague – equal protection, due process, establishment, unreasonable search and seizure, whatever.
And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don't necessarily assume.”
The result we have now is a bastardized legal philosophy of “new originalism” that claims to respect the original text while doing no such thing.
“The main argument in my new book is that originalism doesn't do anything," Segall said.
"It's never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they're doing what they're doing — for transparency purposes.”
. . . .
Conservatives initially advanced originalism as a means for justifying striking down liberal laws passed in the New Deal and Great Society eras, along with their progeny, and reversing Supreme Court decisions by justices appointed during that period.
It was a way of making an ideological package of generally anti-majoritarian ideas seem not merely legitimate, but unquestionably correct.
That charade can no longer be maintained as the court diverges ever farther from the popular will and the raw power politics become increasingly transparent.
The Kavanaugh hearings epitomize everything that can no longer be hidden.
In an author’s note at the beginning of “Originalism as Faith,” Segall discusses the Supreme Court's decision in Janus v. AFSCME, handed down just before his publication date:
The Janus decision is no anomaly.
With Kavanaugh on the court, or any other justice hand-picked for Donald Trump by the Federalist Society, a similar fate awaits Roe v. Wade.
American women understand this, just as they understand how hard Republicans worked to silence Christine Blasey Ford and rush Kavanaugh onto the bench.
Roe may be overturned all at once, or (more likely) die a death of a thousand cuts, even though it enjoys public support by more than a two-to-one margin.
Can the Supreme Court be saved?
18 years is way too long.
This is a common thread that ties Segall's two books together.
Anyone in that situation -- a lifetime appointment -- would tend to succumb, but originalism is an especially deceptive “just-so story” that only makes that tendency worse.
It meets a lot of psychological needs, in Segall's view, not just for judges, but for the broader public as well.
“When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions,” Segall writes in “Originalism as Faith.”
“In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.”
But originalism simply doesn’t work.
It can’t work as advertised, because the constitutional text isn’t clear enough, and therefore it doesn’t work in fact. Nor does any other supposedly nonpolitical interpretative approach, however.
In “Supreme Myths,” Segall describes the post-Civil War "legal tender" cases, in which the court first ruled paper money unconstitutional, but reversed itself just 15 months later, after two new justices joined the court.
“The new majority pointed to no new facts or arguments supporting its reversal of the prior decision,” Segall writes.
Originalism may be the most popular mask for political decisions, but it’s not the only one. Still, it’s the most potent, and the most dangerous.
“Virtually every constitutional law case" decided by the Supreme Court, Segall told Salon, "involves text that is imprecise, unclear, vague – equal protection, due process, establishment, unreasonable search and seizure, whatever.
And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don't necessarily assume.”
The result we have now is a bastardized legal philosophy of “new originalism” that claims to respect the original text while doing no such thing.
“The main argument in my new book is that originalism doesn't do anything," Segall said.
"It's never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they're doing what they're doing — for transparency purposes.”
. . . .
Conservatives initially advanced originalism as a means for justifying striking down liberal laws passed in the New Deal and Great Society eras, along with their progeny, and reversing Supreme Court decisions by justices appointed during that period.
It was a way of making an ideological package of generally anti-majoritarian ideas seem not merely legitimate, but unquestionably correct.
That charade can no longer be maintained as the court diverges ever farther from the popular will and the raw power politics become increasingly transparent.
The Kavanaugh hearings epitomize everything that can no longer be hidden.
In an author’s note at the beginning of “Originalism as Faith,” Segall discusses the Supreme Court's decision in Janus v. AFSCME, handed down just before his publication date:
In this decision, five conservative Justices invalidated (on free speech grounds) the laws of twenty-three states requiring public employees to pay partial union dues whether or not they joined the union.
The Justices engaged in this aggressive act of judicial review by overturning a unanimous 1977 Supreme Court decision that held exactly the opposite and without any support in the original meaning of the First Amendment.
Justices Thomas and Gorsuch, the two self-avowed Originalists on the Court, joined the opinion in full without comment.
This brand new case perfectly reflects this book’s thesis:
Originalism is a method of constitutional interpretation that is nothing more than a misleading label for conservative results for some (the Justices) and an article of faith for others including many legal scholars and the public at large.
The Janus decision is no anomaly.
With Kavanaugh on the court, or any other justice hand-picked for Donald Trump by the Federalist Society, a similar fate awaits Roe v. Wade.
American women understand this, just as they understand how hard Republicans worked to silence Christine Blasey Ford and rush Kavanaugh onto the bench.
Roe may be overturned all at once, or (more likely) die a death of a thousand cuts, even though it enjoys public support by more than a two-to-one margin.
Wednesday, July 4, 2018
Religion matters
Conditioning legal eligibility for public office on the aspirants' religious views or affiliations is unconstitutional and that's a good thing.
But that is not to say there is anything amiss in decision makers' taking into account their religious opinions, as and so far as they may affect the aspirants' performance of official functions.
Democrats as well as Republicans are well aware that Joe Biden is a practising Catholic and Hillary a practising Methodist, so it matters to them all that both are publicly and credibly committed to a woman's right to an abortion and the defense of Roe, though the Catholic Church and most Evangelical Churches oppose that right and support the overturn of Roe.
Just as members of both parties are aware that Rick Santorum is a very different sort of Catholic from Joe Biden, and openly opposes Roe and the right to choose.
As just as both are well aware what sort of Catholic is Amy Coney Barrett, thought to be one of five judges under consideration by Trump to be nominated for the Supreme Court seat soon to be vacated by Anthony Kennedy.
Republicans cheer and Democrats boo at what is known of how her religion bears on issues.
One of the candidates the president spoke to was Amy Coney Barrett, a former professor of law at Notre Dame Law School, who become a hero of many religious conservatives when she was appointed to the 7th US Circuit Court of Appeals last year.
During confirmation hearings before the Senate Judiciary Committee, Democratic senator Dianne Feinstein challenged her over her religious beliefs, saying it seemed to many observers “the dogma lives loudly within you and that’s of concern when you come to big issues that people have fought for for years in this country”.
. . . .
During the election campaign, Mr Trump said he believed that landmark ruling would “naturally” become overturned as a result of the justices he appointed to the court.
“I am pro-life,” he said, during one of three presidential debates with Hillary Clinton.
“Judge Amy Coney Barrett would make an outstanding Supreme Court Justice,” tweeted former House Speaker Newt Gingrich, who is known to be close to Mr Trump.
“Her clarity and intellectual strength in the Senate hearings for her current judgeship showed an intellect and a depth of thought that would be powerful on the Supreme Court.
By contrast, Senate minority Chuck Schumer has attacked Ms Barrett’s qualifications.
Actually, he attacked her for her known positions.
“Amy Coney Barrett is a judge on the Court of Appeals for the 7th Circuit & on @realDonaldTrump’s pre-approved list for SCOTUS. She passed his ‘litmus test’ on overturning Roe v Wade & striking down the ACA. Here’s where she stands on Americans' big issues,” he said in a series of tweets.
“Barrett attacked the Supreme Court’s decision upholding the Affordable Care Act, which has helped millions of people secure health insurance coverage. Barrett also fought efforts to ensure that all women have access to contraceptives.”
He added: “She disagrees with ‘stare decisis’ — the idea that cases like Roe v Wade are settled law in the courts — and instead has said she wants ‘space’ for ‘reargument’.
Commentators pointed out Ms Barrett previously appeared to defend Roe v Wade.
In 2013, the wrote that she thought the law would not be overturned, though others have said she was reflecting on the fact that it was settled law, not that she supported it.
Here is a dose of constitutional realism.
The idea that there is any such thing as a unique correct and reasonable interpretation of crucial facets of the Constitution is nonsense.
And the idea that judicial preference for one view or another must not in the least be driven by the personal religious or moral views, or the political commitments, of the interpreter is jejune nonsense, given there is damn all else to drive it.
And so all that inevitably applies as well to the preferences of senators who get to choose who will join the Supreme Board of constitutional interpreters, whose collective decisions are generally unchallengeable except by their later selves or their successors, and generally stand for many decades.
But that is not to say there is anything amiss in decision makers' taking into account their religious opinions, as and so far as they may affect the aspirants' performance of official functions.
Democrats as well as Republicans are well aware that Joe Biden is a practising Catholic and Hillary a practising Methodist, so it matters to them all that both are publicly and credibly committed to a woman's right to an abortion and the defense of Roe, though the Catholic Church and most Evangelical Churches oppose that right and support the overturn of Roe.
Just as members of both parties are aware that Rick Santorum is a very different sort of Catholic from Joe Biden, and openly opposes Roe and the right to choose.
As just as both are well aware what sort of Catholic is Amy Coney Barrett, thought to be one of five judges under consideration by Trump to be nominated for the Supreme Court seat soon to be vacated by Anthony Kennedy.
Republicans cheer and Democrats boo at what is known of how her religion bears on issues.
One of the candidates the president spoke to was Amy Coney Barrett, a former professor of law at Notre Dame Law School, who become a hero of many religious conservatives when she was appointed to the 7th US Circuit Court of Appeals last year.
During confirmation hearings before the Senate Judiciary Committee, Democratic senator Dianne Feinstein challenged her over her religious beliefs, saying it seemed to many observers “the dogma lives loudly within you and that’s of concern when you come to big issues that people have fought for for years in this country”.
. . . .
During the election campaign, Mr Trump said he believed that landmark ruling would “naturally” become overturned as a result of the justices he appointed to the court.
“I am pro-life,” he said, during one of three presidential debates with Hillary Clinton.
“Judge Amy Coney Barrett would make an outstanding Supreme Court Justice,” tweeted former House Speaker Newt Gingrich, who is known to be close to Mr Trump.
“Her clarity and intellectual strength in the Senate hearings for her current judgeship showed an intellect and a depth of thought that would be powerful on the Supreme Court.
By contrast, Senate minority Chuck Schumer has attacked Ms Barrett’s qualifications.
Actually, he attacked her for her known positions.
“Amy Coney Barrett is a judge on the Court of Appeals for the 7th Circuit & on @realDonaldTrump’s pre-approved list for SCOTUS. She passed his ‘litmus test’ on overturning Roe v Wade & striking down the ACA. Here’s where she stands on Americans' big issues,” he said in a series of tweets.
“Barrett attacked the Supreme Court’s decision upholding the Affordable Care Act, which has helped millions of people secure health insurance coverage. Barrett also fought efforts to ensure that all women have access to contraceptives.”
He added: “She disagrees with ‘stare decisis’ — the idea that cases like Roe v Wade are settled law in the courts — and instead has said she wants ‘space’ for ‘reargument’.
Commentators pointed out Ms Barrett previously appeared to defend Roe v Wade.
In 2013, the wrote that she thought the law would not be overturned, though others have said she was reflecting on the fact that it was settled law, not that she supported it.
Here is a dose of constitutional realism.
The idea that there is any such thing as a unique correct and reasonable interpretation of crucial facets of the Constitution is nonsense.
And the idea that judicial preference for one view or another must not in the least be driven by the personal religious or moral views, or the political commitments, of the interpreter is jejune nonsense, given there is damn all else to drive it.
And so all that inevitably applies as well to the preferences of senators who get to choose who will join the Supreme Board of constitutional interpreters, whose collective decisions are generally unchallengeable except by their later selves or their successors, and generally stand for many decades.
Tuesday, July 3, 2018
How is the constitution to be read?
A clear majority wants the Supreme Court to uphold abortion rights, polls say
More than 60 percent of Americans want the Supreme Court to uphold Roe v. Wade, the landmark ruling that legalized abortion nationwide, according to recent polls.
. . . .
Such a decision would not align with the views of most Americans, according to the polls.
Sixty-one percent of Americans want a new justice who will vote to uphold Roe, while only 31 percent prefer a judge who will overturn it, an NBC News/SurveyMonkey poll released Tuesday found.
And yet when asked they want the provisions of the constitution interpreted and applied much as the Federalist Society would insist.
I don't want the constitution interpreted and applied in that manner, partly because contrary readings are often equally plausible, partly because some crucial provisions are hopelessly vague, partly because we are so far from the world of the 18th Century that it is mad to have an 18th Century government, partly because the Federalist Papers, while informative and helpful, are not part of the constitution and were neither reviewed nor voted on at the Convention, partly because the document is so often crucially silent, and partly because when it is not silent it is so often absurd.
Is paper money constitutional?
The Federal Reserve System?
The Air Force?
What about Medicare, Social Security, Medicaid, Food Stamps, and Obamacare?
If Article I Section Eight clauses 1 and 18 are grants of substantive powers they are all constitutional.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
If not then none of them are.
Liberals commonly say they are, making all of them legit.
Conservatives are the hypocrites who say they are not in order to undermine these and other progressive creations while recoiling from the evident implication the Federal Reserve System and the US Air Force, too, must go.
Which reading is reasonable? The matter was contested from the start.
Can the federal government impose a minimum wage, impose and control a program of unemployment insurance, extensively regulate workplace safety, and intensively, police the market in food and drugs?
Can labor law provide that, on a majority vote, all workers for a company can be represented by a union they must all join and to which they must all pay dues?
Looking at the commerce clause as well as the above clauses, liberals say yes.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Conservatives read the same texts and say no, while reading Article I Section 10 Clause 1 (impairment of contracts) as denying ability to do these things to the states.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Does the government need a warrant to tap your phone, intercept your emails, or use electronic equipment to eavesdrop on what is going on in your house?
To take your fingerprints?
To take your DNA?
Moderns read the Fourth Amendment and insist the government does need a warrant.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Does the constitution by implication ( via emanations and penumbras, perhaps) create a federal right to privacy that the 14th Amendment imposes also on states, that disallows prohibition of use of birth control, that disallows criminalization of homosexuality, and that disallows criminalization of abortion if the unborn are not legal persons and so lack rights?
Liberals nowadays say yes to all of that, while conservatives deny it all.
And there is just so much utter silence in the constitution, providing occasion for endless dispute and inviting judges and politicians to fill lacunae with a constitution of invisible ink.
What is due process?
What is equal protection of the laws?
Whence comes incorporation?
Can a cabinet member be fired, and by whom?
Cabinet members must report to the president, but nothing says they serve at his pleasure or even that they must obey him, no matter the outrage such a truth must provoke in the hearts of partisans of ever greater presidential power.
Can a president pardon people in advance of their crimes?
Can he pardon himself?
More than 60 percent of Americans want the Supreme Court to uphold Roe v. Wade, the landmark ruling that legalized abortion nationwide, according to recent polls.
. . . .
Such a decision would not align with the views of most Americans, according to the polls.
Sixty-one percent of Americans want a new justice who will vote to uphold Roe, while only 31 percent prefer a judge who will overturn it, an NBC News/SurveyMonkey poll released Tuesday found.
And yet when asked they want the provisions of the constitution interpreted and applied much as the Federalist Society would insist.
I don't want the constitution interpreted and applied in that manner, partly because contrary readings are often equally plausible, partly because some crucial provisions are hopelessly vague, partly because we are so far from the world of the 18th Century that it is mad to have an 18th Century government, partly because the Federalist Papers, while informative and helpful, are not part of the constitution and were neither reviewed nor voted on at the Convention, partly because the document is so often crucially silent, and partly because when it is not silent it is so often absurd.
Is paper money constitutional?
The Federal Reserve System?
The Air Force?
What about Medicare, Social Security, Medicaid, Food Stamps, and Obamacare?
If Article I Section Eight clauses 1 and 18 are grants of substantive powers they are all constitutional.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
If not then none of them are.
Liberals commonly say they are, making all of them legit.
Conservatives are the hypocrites who say they are not in order to undermine these and other progressive creations while recoiling from the evident implication the Federal Reserve System and the US Air Force, too, must go.
Which reading is reasonable? The matter was contested from the start.
Can the federal government impose a minimum wage, impose and control a program of unemployment insurance, extensively regulate workplace safety, and intensively, police the market in food and drugs?
Can labor law provide that, on a majority vote, all workers for a company can be represented by a union they must all join and to which they must all pay dues?
Looking at the commerce clause as well as the above clauses, liberals say yes.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Conservatives read the same texts and say no, while reading Article I Section 10 Clause 1 (impairment of contracts) as denying ability to do these things to the states.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Does the government need a warrant to tap your phone, intercept your emails, or use electronic equipment to eavesdrop on what is going on in your house?
To take your fingerprints?
To take your DNA?
Moderns read the Fourth Amendment and insist the government does need a warrant.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Does the constitution by implication ( via emanations and penumbras, perhaps) create a federal right to privacy that the 14th Amendment imposes also on states, that disallows prohibition of use of birth control, that disallows criminalization of homosexuality, and that disallows criminalization of abortion if the unborn are not legal persons and so lack rights?
Liberals nowadays say yes to all of that, while conservatives deny it all.
And there is just so much utter silence in the constitution, providing occasion for endless dispute and inviting judges and politicians to fill lacunae with a constitution of invisible ink.
What is due process?
What is equal protection of the laws?
Whence comes incorporation?
Can a cabinet member be fired, and by whom?
Cabinet members must report to the president, but nothing says they serve at his pleasure or even that they must obey him, no matter the outrage such a truth must provoke in the hearts of partisans of ever greater presidential power.
Can a president pardon people in advance of their crimes?
Can he pardon himself?
Thursday, February 9, 2017
The most unchallenged lie in American politics
Duff quotes, of all people, the American Thinker.
He should, of course, read up on it in my posts on the topic.
The offending quotation:
The Leftist constitution includes the rights to abortion, anal intercourse, and gay marriage.
The Right, reading the “supreme law of the land” as it was actually written, sees no such rights anywhere in the U.S. Constitution.
The Thinker is right about the left, but lying about the right.
The right is still in love with Lochner, Scalia embraced the lie of incorporation via due process to foist the 2nd Amendment on the states, and the libertarians go there with their First Amendment absolutism via privileges or immunities.
All of these fake strict constructionists embrace the Air Force, paper money, the Federal Reserve System, judicial review, and on and on and on.
On reflection, nobody but an idiot insists judges could or should enforce the actual US Constitution.
That is pap for rubes who march about on patriotic holidays wearing three-cornered hats and carrying replica muskets.
For them and for children, like Santa and the Elf on the Shelf.
Bumper sticker drivel.
So what are the real differences between the ways the left and right use the constitution?
They all use it to favor their own sides in the class and culture wars of American politics.
And they are on opposite sides.
Friday, February 3, 2017
Democrats, awake!
Indissoluble marriage?
Criminalization of adultery and fornication?
Legal persecution of gays?
Total legal suppression of porn, obscenity, and profanity?
Legal suppression of contraception?
A regime of carefully inculcated shame and inescapable guilt?
Legally required church contributions and attendance?
Exclusion of Jews and other non-Christians, or reduction of their numbers to insignificance?
Mandatory prayer and religious lessons in public schools?
Who really wants all that back?
Criminalized miscegenation?
Exclusion of non-whites from the vote, from juries, and from political office?
Legally mandated segregation in schools and in residential areas?
Racial discrimination in employment?
The color line in all social relationships?
Exclusion of women from education, from professions, from property ownership, from office, from the vote?
Should the liberal judges who did away with all that by constitutional fabrication really be faulted for it?
Especially in view of Article V and the paralysis, fecklessness, and backwardness of the political branches?
Should the human and legal rights at issue in these matters be left subject to change as easily as the tax laws?
Shouldn't the affirmative right to counsel and the exclusionary rule be protected by the constitution, in state as well as federal courts?
Shouldn't the Bill of Rights, reasonably construed, constrain states and locales as well as the general government?
Shouldn't the constitution be amenable to revision by enlightened and experienced liberal elites, more readily than by masses spurred on by demagogues like George Wallace, Donald Trump, or Steve Bannon?
What kind of country do we really want?
Don't we want responsible and liberal judicial review?
Don't we want strong privacy rights?
Don't we want a government big enough and strong enough and rich enough to protect us and our children and our planet from the arrogance, power, and rapacity of the plutocracy?
Don't we want a vibrant, powerful, and creative economy that works for all of us and not just the few?
Don't we want secular and public, tuition free education and training of all sorts, at all levels?
Don't we want quality universal health care?
Don't we want social insurance and retirement programs to eliminate poverty and secure reasonable comfort and well-being for all?
Don't we oppose exclusion of non-whites and non-Christians from our schools, our neighborhoods, our workplaces, and our country?
Stop bullshitting around!
Stand up and say it.
Subscribe to:
Posts (Atom)