Tag Archives: government

Do Away with our Constitution

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That’s what Louis Michael Seidman, writing in the New York Times last week, wants to do.  He claims to have been teaching Constitutional law for quite a long time, but that’s hard to believe, after reading his epistle (though, in fact it’s true–at Georgetown, where he teaches Constitutional law, but from this writing, it seems to me he teaches very little of the Constitution).  On the other hand, another great Constitutional scholar, Ezra Klein, agrees with him.

Here are some of Seidman’s…rationales.

Imagine that after careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for the country.  Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action.  Is it even remotely rational that the official should change his or her mind because of this divination?

Well, since that disagreement actually was centered on what the Constitution, the supreme Law of the Land, allows, yeah, he would have to give up his divination.  Especially since the Constitution was designed to maximize the likelihood that he represents American citizens, his collective bosses, and to ensure that their view of what is best for the country outweighs his own.  Suppose, contra, that after a careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for him personally.  Should that judgment be allowed to stand?

Constitutional disobedience may seem radical, but it is as old as the Republic.  In fact, the Constitution itself was born of constitutional disobedience.  When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states.  Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

And how terrible that was.  Instead of being approved by the conclave of diplomats that was all that the Congress was under the Articles, or by unanimous approval of 13 disparate and independent States’ legislatures, it was approved by something far closer to the people themselves—those conventions, which were selected by an especially broad franchise of voters and one far more broad than the franchise that was allowed to select Seidman’s precious legislators.  It was the Sovereign people who ratified the new Constitution, thereby explicitly validating the decisions of those constitutional disobeyers.  Moreover, the remaining four States were not bound by a Constitution which their citizens did not ratify; they were free to go their own way, as the State of Rhode Island and Providence Plantations did for quite a few years before seeing the political and economic advantages of joining the union.  That separate way also included the option of continuing under the Articles, with a Congress now consisting of diplomatsdelegates from those four States, and a new effort at amendment.  In the end, though, the citizens of all thirteen States individually and separately ratified the Constitution, adding to the validation.

No sooner was the Constitution in place than our leaders began ignoring it.  John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.  Thomas Jefferson thought every constitution should expire after a single generation.  He believed the most consequential act of his presidency—the purchase of the Louisiana Territory—exceeded his constitutional powers.

And all of these men’s relevant actions or failures to act were overridden by the existence of that Constitution—which also acts as a brake against Seidman’s “considered judgment” government official.  Moreover, that these men had feet of clay (including his slave owners) is an argument for holding government men fettered by a Constitution, not for allowing them freedom to run riot.  As one of those disdained “white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves” but who could foresee the future of a society governed by men, noted,

If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Thus, that document that some find confusing because it was written more than one hundred years ago.  And which has stood us in good stead since was ratified.

Returning to Seidman’s words:

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored.

Neither that they were abolitionists or that they “conceded” anything did not make them right.  In the event, slavery should have died out (literally) by 1808, but the slave States reneged on that bargain.  In the end, the Constitution was Amended, after that Civil War, to explicitly abolish slavery.  The argument simply to ignore the law was found as wanting then as it is now.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution…should give us pause.  The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled.  Some decisions have been grounded in one school of thought, and some in the other.  Whichever your philosophy, many of the results—by definition—must be wrong.

Nor need the two schools be reconciled.  Judicial activism is wrong.  Judges’ oaths of office commit them, on their honor, to uphold the Constitution, not to amend it ab ecclesia de banco.  Moreover, the Constitution is a living document, as Seidman and his “living constitutionalists” aver; however, it is that same Constitution’s Article V which shows how it thrives and evolves.  As one of Seidman’s living constitutionalists, Justice Robert H Jackson, said, the Constitution (Jackson actually was referring to the Bill of Rights) is not a suicide pact.  Jackson was right; however, what is suicide is deviating from the Constitution—including altering it without the requirements of Article V.

I could go on, but that’ll do for now.  The rest of his diatribe is of a piece.

In the end, our Constitution is all that stands between us as a nation of laws and us as a nation governed by a few men who make the laws; it is all that stands between us as a nation whose government protects those individual rights, liberties, and duties that are part of our Creator’s endowment and us as a nation whose government presumes to grant (or withdraw) our rights, liberties, and duties.

If Seidman is dissatisfied with our Constitution, I’d like to see the text of his proposed Amendment(s).  Article V, after all, as he well knows, is how our Constitution lives.  That our Constitution causes so much frustration by getting so far in the way of facile “solutions” is one of its strengths.  In the end, if he can’t convince mere men of the greatness of his ideas, perhaps his ideas aren’t so great.

Oh, one more thing.  Seidman opens his piece with this:

[A]lmost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

But nowhere in the rest of writing does he name any of those “evil provisions,” or even any of the “archaic, idiosyncratic” ones.  That’s the integrity of leveling a charge and then declining to support it.

Obama’s Freedom

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From a person calling herself Jezebel comes this:

Ugh, you rubber cement-huffing nincompoop….

Anyway, I’m all for Hobby Lobby (and all other organizations that think birth control is totes gross) ignoring the law.  If they keep this up for long enough, we won’t have to worry about the fiscal cliff.

And I suppose that now’s as good a time as any to confess publicly that “Hobby Lobby” is the nickname I’ve given my vagina.

Name calling as pseudo-logic.  How very Progressive of her.

And this pseudo-argument from Think Progress, in their post misleading titled “Hobby Lobby To Deny Contraception To Employees, Ignoring Court Order:”

This ignores two obvious points—first, that Plan B is not an ‘abortion-inducing’ drug, as Hobby Lobby claims, and second, that the company may well end up paying more to avoid covering contraception than they would simply providing access.  It also takes a twisted view on the ‘Freedom of Religion’ argument; the company is actually forcing its owner’s religious beliefs on all employees, no matter their personal religious views.

I’ll ignore their first point as irrelevant (Look! Shiny!) and proceed to their second, which is blatantly cynical.  Think Progress actually is arguing in all seriousness that religious freedom—any freedom—is solely a pecuniary, fiscal thing, having nothing to do with principle or morality.  How little the Left understands individual liberties and duties.  How little the Left understands the threat to their own freedoms Big Government represents.

But their argument begins and ends with a disingenuously false premise.  Of course, the owners of Hobby Lobby are not at all denying contraception to their employees, nor are they imposing their own religious beliefs on anyone.  Those employees remain free to obtain birth control on their own, to obtain contraceptive “coverage” from other insurers, to engage in any other activity, all in accordance with their own religious beliefs.

Moreover, this refusal to participate in the HHS intrusion inflicts no other harm on their employees, either, including the costs of contraception now to be borne by those employees.  Sandra Fluke’s foolish remarks notwithstanding, contraception is freely available, and nearly free, for instance for $7/mo at any Walmart.  Condoms (the forgotten contraceptive) are just as cheap.

Hobby Lobby’s owners are simply exercising their 1st Amendment rights (that conveniently ignored clause that says, “Congress shall make no law…prohibiting the free exercise [of religion].”)  They’re simply declining to participate in a market for materials their religious beliefs hold to be immoral, while not at all impacting the ability of anyone else to participate in exactly that market.

But there’s another problem here.  When Supreme Court Justice Sonya Sotomayor refused a request from Hobby Lobby for a temporary injunction staying enforcement of HHS’ contraception insurance rule pending adjudication of the primary case, she continued the injustice rather than mitigated it.  In the balance was whether Hobby Lobby’s owners should be forced to suffer enormous economic damage or to violate their religious teachings, and so to suffer enormous moral damage, against whether Hobby Lobby’s employees should be required to go elsewhere for extremely low cost contraception and emergency contraception.  And this balance would have been purely temporary: resolution through the courts is in progress.

Sotomayor’s reasoning is instructive.

While the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction[.]

No.  $1.3 million in daily fines aren’t at all “irreparable harm.”  The moral damage of violating religious principles isn’t harmful at all.  After all, holding at bay that irreparable harm isn’t at all necessary or appropriate to aid the Court’s jurisdiction.  Never mind that it is the purpose of the Court to decide cases in accordance with the law—here the Constitution—and so to minimize overall damage.

And

Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts.

But pay, in the meantime, the frightful fiscal or moral cost that Sotomayor so casually dismisses.

Instead, Justice Sotomayor’s ruling said, “Kneel and bend your neck, sucker.  We already know the right answer.”  She carefully chose not to take the low cost—morally, fiscally, or legally—path.

But that’s freedom, Progressive style—Obama style.  Do it our way; we’ll take care of you.  But if you’re really so stupid as to disagree with us, we’ll vilify, demonize, you.  Because, in the first place, logic has no place in the discussion, and in the second place (yes, as in secondarily), your freedom is ours to determine.

Update: A Federal district judge appears to have a better understanding of relative costs and legal efficiency than does our Supreme Court Justice:

US District Judge Lawrence Zatkoff ruled Sunday in favor of Tom Monaghan and his Domino’s Farms Corp., near Ann Arbor.  Monaghan, a devout Roman Catholic, says contraception isn’t health care but a “gravely immoral” practice.

Zatkoff granted Monaghan’s emergency motion for a temporary restraining order until a final decision is made in the case.

Filibuster

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Harry Reid, who was for the filibuster before he was against it, has determined that this hallowed protection of the political minority from the tyranny of the majority must end.  First, some background.

The Senate’s filibuster process is enshrined in two Senate rules, Rules 22 and 5.  Rule 22 says in pertinent part

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting—then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thus, if only 90 Senators of 100 sitting are present, ending the filibuster would still require 60 votes.

Rule 5 is this, in its entirety:

SUSPENSION AND AMENDMENT OF THE RULES

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof.  Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

There are three items of interest here:

  • it takes a 2/3 vote of sitting Senators to approve a Rules change
  • a rules change effort requires at least a one-day advance notice
  • rules continue from one Congressional session to another—that’s why they’re called “Standing Rules.”

As Hans A von Spakovsky, writing in the National Review Online, puts it,

[T]he Senate has always considered itself a continuing body, because only a third of its members are up for election at any one time.

Now the move.  Enter stage left, the Progressive Senator from Nevada, Majority Leader Harry Reid (D, NV).  Reid has announced that he will move to alter (eliminate) Rule 22 (the filibuster rule) in the coming Congressional session.  And he’s said he’ll do it

on the first day of the new session

and

it will take only a simple majority of 51 votes to shut down debate on the proposal.

There are three items of interest here, too.

  • a minor point: he cannot do this on the first day of the new session; Rule 5 demands a day’s prior notice—this means he cannot attempt his change until the second day.
  • a critical point: he cannot do this without a  2/3 vote to end debate on his proposed change—no simple majority allowed—unless
  • a critical point: he violates Rule 5 (again) by disregarding the fact that the Senate’s Rules continue from Congressional session to Congressional session.  That’s the only way he can get from a super majority to shut down debate on his Rule change to a simple majority.

There’ a fourth item of interest, too.  This is what Reid said in 2005, when the Republicans were contemplating a similar move:

For people to suggest that you can break the rules to change the rules is un-American. …a rule that now says to change a rule in the—in the—Senate rules to break a filibuster there still requires 67 votes….  But now we’re told that they’re going to…come in here and have the Vice President [preside], and he would just say the Parliamentarian, which would acknowledge that it’s illegal, it’s wrong…he would just overrule.  You would be breaking the rules to change the rules—very un-American.

And

The filibuster is far from a “procedural gimmick.” It is part of the fabric of this institution. It was well known in colonial legislatures, and it is an integral part of our country’s 217 years of history.

…

The roots of the filibuster can be found in the Constitution and in the Senate rules.

…

If Republicans rollback our rights in this Chamber, there will be no check on their power.  The radical, right wing will be free to pursue any agenda they want.

And from President Barack Obama, through Dan Pfeiffer, his White House Communications Director:

The President has said many times that the American people are demanding action. They want to see progress, not partisan delay games.  That hasn’t changed, and the President supports Majority Leader Reid’s efforts to reform the filibuster process.

Which follows Senator Obama’s remarks on filibuster in 2005:

What [the American people] don’t expect is for one party—be it Republican or Democrat—to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet.

…that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting and the bitterness and the gridlock will only get worse.

Is there any clearer demonstration of the dishonesty of the Progressive Movement in the United States government?

Good Faith Negotiations

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Here’s another example of good faith, Progressive style.  This occurred in the failed fiscal cliff “negotiations:”

At one point, according to notes taken by a participant, Mr Boehner told the president, “I put $800 billion [in tax revenue] on the table.  What do I get for that?”

“You get nothing,” the president said.  “I get that for free.”

It’s certainly true that a number of chuckleheads, as one Republican participant called them, let themselves be confused into thinking that voting to preserve the present tax rates for 99.8% of Americans was the same as voting for a tax increase—even though the Great Grover Norquist had given permission for such a vote.

But the fact is, that President Barack Obama has been discussing in bad faith all along: he wants the cliff.  With the cliff, he gets tax rate increases all across the board, he gets to gut Defense spending, and he gets to blame Republicans for the economic and security disaster that will result—all Progressive dreams.  And that blame is as important to Obama’s ego as are the tax increases and the Defense cuts.

It is unfortunate that the GOP has chosen to be complicit in this shameful affair, but there it is.  They’ve emasculated themselves with an idiotic civil war, and they’ve rendered themselves impotent for the next two years.  Look for the Progressives to retain control of the Senate and regain control of the House in 2014, and to retain the White House in 2016.

Had the Republicans been able to pass Plan B in the House, those chuckleheads would have achieved three things: they would have voted for the present tax rates for nearly all Americans, they would have put the onus on the Progressives—as Speaker of the House John Boehnor (R, OH) put it

[T]he president will have a decision to make.  He can call on the Senate Democrats to pass that bill, or he can be responsible for the largest tax increase in American history

—to come up with an honest counterproposal.  And put the failure of the negotiations squarely on the shoulders of the Progressives in the Senate and the White House.

Now, Republicans don’t have anything at all for the debt ceiling debate other than an understanding of how to fail.

Congratulations, guys.

Never Let a Crisis….

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The Democrats, led by President Barack Obama and Senators Diane Feinstein (D, CA) and Chuck Schumer (D, NY) want to “discuss” gun control and make it harder/impossible for us to retain our 2nd Amendment rights.  But this would make us more like Europe, and that’s a Good Thing, isn’t it?

Here’s what Europe is blathering on about in re the Newtown mass murder.

[The Newtown massacre] is once again the unavoidable result of a national culture….  Once again, the United States is debating its gun laws, even if the discussion is likely to be short and inconclusive.  But the real thing that must change (though it hardly will), is the misunderstanding that America’s formative myth of “freedom” allows for weapons to be as widespread as smart phones.

And from Süddeutsche Zeitung, this:

Their [Republicans and the gun lobby] opposition to almost any kind of gun control borders on political complicity in murder and manslaughter.

And from Die Welt, this, even as they “recognize” the legitimacy of private ownership of guns:

A country-wide weapons registry would make sense. … [A]t least a ban on semi-automatic weapons, such as the one that existed during the administration of Bill Clinton, makes sense.

And from Stuttgarter Zeitung, this:

[T]this variety of martial liberalism is a relic of a bygone era that no longer fits in the time.

Never mind our Creator’s endowment of rights and the expression of them in our Bill of Rights.  The latter exists to facilitate our satisfaction of our individual endowment of obligations, which includes our obligation to help each other enjoy those inalienable rights.  Which demands an ability to defend ourselves and our fellows by force of arms, if necessary, not only against other members of our compact and intruders from outside it, but also against an overweening, overly intrusive government that is a necessary evil and not the fount of our rights, responsibilities, and freedoms.  Which in turn demands a 2nd Amendment that explicitly acknowledges our inherent right to be adequately armed for executing that self- and mutual defense.

Disarming us, as even the Süddeutsche Zeitung understood elsewhere in its editorial, cannot have prevented such mass murders.  Disarming us would not disarm the criminals, or the insane, or the criminals who would use the insane.  Progressives dismiss this as ridiculous, a catch phrase, but it is no less a truth for that.

Nor has the threat receded in a modern, dangerous world, as the Stuttgarter Zeitung so innocently hopes.  Thinking so is dangerously naïve.

Government has no need to know what its employers have in our possession.  Fishing expeditions, which include a national gun registry with its associated limits on the purpose for which we might be permitted to possess and use a firearm, and of which restrictions on what we are in the end permitted to own are a subset, are at once an early step in the erosion of freedom and a textbook example of why another requirement was written into our Bill of Rights: the need for a separately court-approved search warrant before our government might pry into our private affairs.  A government that assumes, a priori, that its employers are dishonest is a government that, even more so, cannot be trusted.

What those who idolize Government, those who truly think that government is the origin of our rights, responsibilities, and freedoms—rather than an unfortunately necessary tool for helping us preserve our individual liberties and satisfy our individual responsibilities—do not understand is that these are truly individual; our liberties and obligations are individual and are inherent in us as individuals.  Thus, we cannot wish them away onto another entity for preservation or satisfaction.  They cannot be divorced from us any more than our lives can be.

In the end, the only ones who want to disarm a population are those in Government with guilty consciences about their own designs on liberty and those who truly believe that freedom flows from Government and not from God.  Both sorts are dangerous.