The failure of constitutionalism

Constitutional government failed in America, long ago.

It is not certain that Eisenhower ever read the Constitution.

Might as well expect illiterate Goths without even spoken Latin to govern by Roman law.

And the lawyers of the courts, alone literate in the sacred language and many of them stupid, dishonest, or both, have long joined the office-holders of the political branches in succumbing to the irresistible temptation to lie about the Constitution or ignore it altogether.

Reading Newton's Eisenhower.

Reading Seidman.

It does not follow that the government is less free for being less constitutionally legitimate. 

Actually, in many ways it is more free.

And it is at once more national, more secularist, more liberal, more social-democratic, and more monarchist than the document provides for, in large part but not entirely owing to a powerful judicial dictatorship of lies.

But the Constitution still plays a role in our politics, in some ways like the role of the Bible in popular Christianity.

Everyone feels obliged to insist his views are Biblical.

And lawyers and politicians are like theologians and preachers whose tendentious interpretations are sometimes coincidentally accurate and in no case valued the more for that, except as that is a propaganda advantage.

The Louisiana Purchase

Jefferson did it constitutionally by negotiating a treaty with Napoleon, ratified by the Senate.

But he thought he was cheating.

Jefferson and others felt that, absent an express grant of power, the federal government could not acquire territory.

However, the federal government was given express and exclusive power to make treaties, and history testifies that the purchase of territory is a perfectly banal use of that power, as are the acquisition of territory through victorious war and the surrender of territory to end a lost one.

So they were mistaken.

On the other hand, when the Congress set about erecting a government for the new territories it exceeded its powers.

The grant of power in Article IV, Section 3 applies to the Northwest Territory and existing US property, and does not appear to contemplate new territories. 

While on the subject of widespread constitutional error, even among officials and even from the beginning, consider this.

Some people, some of them government officials, have believed or claimed to believe, or merely claimed, throughout  much of the life of the Republic, that the judicial power lodged by the constitution in the federal courts contains intrinsically and inherently the power to nullify laws or other acts of government that conflict with the constitution.

History does not support that claim, that I am aware.

Jefferson's outraged incredulity was in that case entirely justified.

IMHO.

Update 12062014.

I now see the treaty power as restricted so that it can commit the government to doing only what the constitution elsewhere empowers it to do.

But I also now read both the first and 18th clauses of Article I, Section 8, as real grants of real powers.

The Supremacy Clause

Are judges in every state bound by unconstitutional federal laws as the supreme law of the land, as well as constitutional ones?

Does this clause in Article VI say they are?

Looks it.

It says they are bound by the Constitution, federal laws, and treaties, anything in the state laws or constitutions notwithstanding.

Article II Section 3 says the president is to see that the laws are faithfully executed.

Not just the constitutional ones and not just the ones he thinks are constitutional.

Much less just those he thinks prudent or just.

Nothing in the Constitution says the Supremes or anyone else can nullify a law, whether federal or state, or anything else that is, or that they think is, unconstitutional.

A president can veto a bill he thinks unconstitutional, and the Congress can override the veto if they think best. 

During the convention in Philadelphia the same veto power, but only for unconstitutionality, was considered and grew into the more general power in Article I, Section 7.

That was the only manner in which the convention expressly thought to deal with the possibility.

And that is all.

So much for Judicial Review, and so much for Nullificationism.

A perfect example

Seidman says there are no approaches to interpretation on which something permitted by the Constitution at one time is forbidden at another.

But on a straightforward reading the Constitution forbids to the federal government imposition of punishments that are both cruel and unusual.

Flogging was always cruel, but it was not unusual in the 18th Century.

It is now.

Seidman's On Constitutional Disobedience

He reports oddities.

The Constitution prescribes six year terms for senators.

It prescribes departure from that rule only  for senators elected to the first Congress, to achieve staggering of the six year terms of their successors.

But when new states are admitted the terms of their senators are customarily not both of six years, though this is actually unconstitutional, again for the sake of staggering.

The Constitution says the vice president presides in the Senate except when the president is impeached.

So he is to preside at his own impeachment?

Seidman dryly doubts that would be allowed.

Amusing.

The point of the book is that we have no duty of fidelity to the Constitution.

Neither we, the people, nor we government officials, nor we federal judges, nor, especially, we justices of the Supreme Court.

Many, though not all, liberals lustily applauded his book when it first appeared, laughing with delight.

No known conservatives were pleased or amused.

The arguments for his claim, as well as those for many related claims, are brutally fallacious and even egregiously obtuse.

Fallacies in apparently limitless abundance.

Perfect for a popular polemic.

The liberal fan base found all that especially delightful.