The Obama Administration's penchant for ignoring the US Constitution is, once again, on display.
On several occasions here at IntellectualConservative, both as a poster to commentary and as an author of said commentary I have questioned the President's allegiance to both the rule of law and the US Constitution. Just last week, the latest intentional disregard of that document was again on display for all to see.
March 17th of 2011, the UN Security Council passed Resolution 1973 demanding an immediate cease fire in Libya. The resolution also demanded that Col. Qadhafi relinquish all gains his Army had earned since they turned the tide on the revolutionaries in early March. The resolution went on to mandate the establishment of a "no-fly" zone over Libya to restrict Col. Qadhafi's use of his air assets against the revolutionaries and his civilian population.
Since Barry Soetoro was inaugurated, I've documented his penchant for the disregarding laws he doesn't like; along with his disturbing habit of using the Dept. of Justice to selectively enforce or decline to enforce duly enacted laws that conflict with his political ideology. Examples of such are legion, and not worth enumerating here once again. Suffice it to say that the evidence that our current Commander-in-Chief cares little for the US Constitution and even less for American citizens is overwhelming.
I'll also state, for the record, that each time I've pointed out this person's proclivity for simply ignoring stare decisis I've been set upon by progressive of posters on this site as some type of rabble rousing, extremist, revolutionary myself.
Now we have Barry's ideological mindset on full display. Unlike his predecessor, President Bush sought and received both Congressional and Senatorial authorizations to act militarily in Iraq. Democrats eventually began to demand the impeachment of President Bush for acting under that authorization.
According to both the US Constitution and the 1973 War Powers Resolution the President has no authority to deploy armed forces to action abroad unless one of two conditions are met: He must either be able to prove the US is under direct attack or a serious threat of attack, or he must first obtain the authorization of the US Congress. The War Powers Resolution further requires the President to officially notify Congress of any commitment of military action.
To date; President Soetoro has met neither of these criteria. However; his immediate orders to launch cruise missiles and have air assets bomb command and control targets in Libya speaks volumes. This president not only selectively chooses to enforce or ignore established law in accordance with his wishes; he apparently will dispense with Congress at his whim as well. The only conclusion one can draw from this situation is that President Soetoro considers the United Nations to be a higher authority than the Congress of the United States.
During past discussions of his playing fast and loose with the rule of law progressives always manufactured some flimsy excuse as to why the present set of circumstances outweighed, and therefore explained his lack of allegiance to duly passed constitutional law. In this specific case Obama lied; people died. Where are the leftist protesters that should be screaming and carrying signs outside 1600 Pennsylvania Avenue? Where are the Congressional demands for an immediate impeachment proceeding? Surely, this has to about as bipartisan an issue as we will ever find under current circumstances.
Redundancy here. When get got Congressional approval, he got both the House and the Senate. I’m surprised this one got by you! 8)
obama is a simple street thug from Chicago. The Constitution means nothing to him except when it is convenient. Bill is right on with this article but unfortunately the Senate will not do anything about this thug’s trashing of our country.
1-20-13
The President can confidently flaunt the Constitution and the rule of law because he knows the American psyche well. He knows that a dispassionate observance and enforcement of the law is a foreign concept to his constituency. His candidacy and Presidency cater to the Jerry Springer, talk show mentality where right is defined by the emotional response of the studio audience. He counts on the thirty minute mentality that looks upon rigid adherence to the law as a legacy of the evil white oppressors who use it as a bludgeon on the down trodden classes. To accept that true liberty can only exist in a society which possesses a respect for the rule of law and a healthy morality requires a classic liberal education and an intellectual evaluation. The President knows that today’s education system and pop culture facilitates neither critical thinking nor dispassionate analysis.
Bill,
I’ll let Mr. Jackson speak for me, from his post of March 23, 7.33pm on “Obama’s War Versus the Constitution.”
“The Constitution is deliberately ambiguous about the right of the Commander in Chief to engage in military conflict. Virtually all US presidents have exercised this authority without asking for an official declaration of war. Congress was given that authority to formally express the intent of the nation in response to really big events where the country as a whole needs to be mobilized toward a common end. It’s a way to get the people’s representatives to officially back the actions that a President will take to advance or protect the national interest where the entire country needs to be actively engaged.
When it comes to fighting the Barbary Pirates, or Pancho Villa, or jihadi terrorists, the President simply acts in his capacity as Commander in Chief. The facts on the ground (i.e. when the military action begins to consume an inordinate amount of national resources — which is a real, not rhetorical issue), combined with good old fashioned partisan politics, helps define when a formal declaration of war becomes necessary; that is, if the other obvious facts on the ground (like, say, another Pearl Harbor attack by a foreign nation) don’t obviate this entire discussion. Which is a long winded way of saying that the issue isn’t cut and dry, particularly in an age when a formal declaration of war carries with it the logical need to commit the nation to an unqualified victory utilizing all of its resources. Do we really want to use nuclear weapons? If we don’t, why exactly did we “declare war” if we’re not prepared to fight a real war?
The problem with Obama’s Libyan Adventure is that it’s fundamentally stupid, not unconstitutional. We shouldn’t use the US military to stop murders in foreign countries unless we’re prepared to stop the murderers too. I’ve heard the analogy that we have a moral obligation not to turn our back on a person about to be killed when we have the power to stop that murder. Okay, then stop the murder — and remove the murderer too. If not, we simply save one arbitrary life, and then allow the murderer to keep on killing once we go away. Where’s the “morality” in this?”
To this eminently sound set of comments, I’ll simply add that Obama’s foreign policy–such as it is–is utterly incompetent. He is simply not up to the task.
The war is unconstitutional. The fact that many presidents have taken us into battle does not make it right. The Constitution ambiguous? Hardly. Ask yourself if we should be in Libya, or should have been in Afghanistan, Iraq, Bosnia, Grenada, Vietnam, Korea, etc., and tell me with a straight face that the Founders did not know what they were doing when they said Congress needed to declare war if we were to engage in one. Congress is a bunch of cowards who will not stick their necks out for anything and will not rock the boat if a president wants to ignore the Constitution. These wars cost us lives, depleted our treasury, and cost of the respect of the world by interfering into their internal affairs and telling them how to live. As a matter of fact they are doing the same thing to us, the citizens of the US, in telling us how to live. We as voters need to take a hard look at these 535 rock stars that have been elected.
“The Constitution ambiguous?”
No. Not in every circumstance. But it is in the sentence I actually wrote: “The Constitution is deliberately ambiguous about the right of the Commander in Chief to engage in military conflict.”
We can oppose an action or policy without automatically concluding that the action/policy in question is unconstitutional. The president has a Constitutional right, as Commander in Chief, to use the military as an instrument of power. When the perceived line is crossed that such action is extra-constitutional, two Constitutional remedies exist: impeachment, and defeat at the next election.
This is how the Constitution was actually designed to function, since it’s impossible to account for every permutation of every situation in a couple thousand word document, or even a hundred thousand word document. Instead, Constitutional parameters are set for the exercise of power by the three branches of government, and politics is the terrain through which these disputes are mitigated.
The only areas where the Constitution appears to set hard and fast rules are for very specific issues: certain qualifications for elective office, the creation of the electoral college, etc. Don’t confuse or impose these aspects of the Constitution with those specifically designed to deal with less tangible matters, usually concerning the exercise of power and authority.
This is the brilliance of the Constitution. It’s meant to give us a relevant, meaningful framework for addressing the vicissitudes and uncertainties of political, economic and social life in the United States. It’s why the document has lasted over two centuries when many other attempts to create a governing document have met with only limited success.
Once more, I cheerfully acknowledge my complete agreement with Mr. Jackson. Of course, he’s already taken a big step toward liberalism by recognizing that there is, or even that there can be, any ambiguity in the Constitution on any topic. I think it is at least reasonably accurate to say that most conservatives reject the very possibility of anything other than crystal clarity and a complete absence of ambiguity in the Constitution. From their standpoint, the Constitution should be read the way a fundamentalist reads the Bible.
Now if only I can get Mr. Jackson to take one more step and accept the ‘living Constitution…’
Gestell:
Why do you insist on a “living Constitution” when it can be amended at any time? Could it be that you don’t like to read words for what they mean and are trying to interpret them in “lawyerese lingo”?
There’s a very interesting read on National Review’s website today. Take a look at George Weigel’s “How Democrats View the World” on National Review’s website today. Just google NOR–it’s easy to find. Weigel’s list of 8 points is a very good summary of the prevailing assumptions that underlie how many, maybe most, liberals think about foreign policy. I’m one of those old-fashioned liberals Weigel mentions early in his article.
Pardon me: old fingers: You find ‘National Reivew” at NRO, not NOR.
“Of course, he’s already taken a big step toward liberalism by recognizing that there is, or even that there can be, any ambiguity in the Constitution on any topic.”
*** Actually, I said no such thing. I said there is deliberately ambiguity on certain specific topics, generally those involving the exercise of power and authority. For others, like the qualification to be president, it’s not ambiguous at all. It’s very specific that the president must be a natural born US citizen. The debate about Obama in some circles is not whether this constitutional provision is ambiguous, but whether Obama was actually born in the United States.
I’m always greatly suspicious of the motives, and intellect, of anyone who needs to ‘win’ an argument by deliberately falsifying a statement. I was very clear about what I said, and didn’t say. That Gestell would have to alter the meaning of my original statements by substituting his word “any” for my phrase “Not in every circumstance” is just another reminder of why it ultimately becomes pointless to debate a partisan or ideologue, whether they are on the Right or Left.
“I think it is at least reasonably accurate to say that most conservatives reject the very possibility of anything other than crystal clarity and a complete absence of ambiguity in the Constitution. From their standpoint, the Constitution should be read the way a fundamentalist reads the Bible.”
*** Here’s a great example of the ‘broken clock is correct twice a day’ theory of academic reasoning. This is actually a credible statement, once you substitute “most ideologues” for most conservatives”. I consider myself to be a conservative, a Constitutional originalist, and “strict constructionist”. And yet, I and many other conservatives reject the idea that the constitution is without ambiguity in certain areas.
What this means is that I actually understand what that amazing document is, and isn’t. It is a specific framework for adjudicating issues in a political and legal manner. It is not a legal code like the 100,000 page Federal Tax Code, which seeks to define precisely which assets a company can depreciate in a given tax year, and which they must depreciate over al longer period of time.
The Constitution does set out the basic framework of rights and responsibilities we enjoy as citizens of this country; all of which are derived from the God-given human rights enunciated in the Declaration of Independence (which are not dependent on the whim and whimsy of elected officials to embrace or reject as they see fit). As such, it does not create new “Constitutional Rights” (like the so-called “Right to Privacy) that aren’t in the Constitution but imagined to be there, because without them certain liberal social policies (like the Federalization of abortion) becomes impossible.
The Constitution allows for mistakes in interpretation, which is how we go from separate-but-equal as a Constitutionally-permissible state, to separate-but-equal as an unconstitutional state. These errors tend to be corrected over time as the politics that drove those decisions are vetted in the public arena, and the bad interpretations are ultimately rejected. We’re already seeing the absolute federal “right” to an abortion being slowly chipped away in the same manner.
Understanding this requires one to step back from the partisan and ideological blinds that conflate believing something strongly with actually comprehending the issue. It means looking at the issue dispassionately, instead of through a prism. Like I said in an earlier post, the prism the Left uses is to ignore the past to do whatever they want today with no supposed fear of contradiction. The zealots on the Right assign immutable interpretations to at times ambiguous things (deliberately ambiguous in the case of certain Constitutional provisions); thus the accuracy of Gestell’s “Bible” reference even though the broken clock theory is clearly in effect.
Which again is a long way of saying that Gestell has learned to recognize the truth of my statements, but as a good liberal he doesn’t actually understand what I said. Instead, he’s focused in on certain words (like “ambiguous”), which he then imbues with additional meaning I specifically rejected, and uses that to leap to his final conclusion about the Constitution being a “living document”.
At least he acknowledges that I reject the phoniness of that argument, since recognizing that the Constitution is a carefully crafted framework (thus the reference I made to deliberate ambiguity vs. ambiguity through confusion or inadequacy) does not automatically translate into the concept that the Constitution means whatever we want it to mean.
Once again I have to express my disappointment (though not surprise) that when given the opportunity to engage in real discussion about a significant issue, ideologues of all political persuasion tend to spout their opinions and feelings disguised as thoughtful reflection. I don’t put the author of this article in that category, just to be clear. He stated his case forthrightly, and while I’ve agreed with him on many issues in the past, I disagree with key aspects of his analysis here. However, you note that in contrast to Gestell and others here and in other threads I’ve participated in, he hasn’t resorted to slipping in a word or two that significantly changes the meaning of what I originally said, or left off key parts of a sentence I wrote to imply that I made a categorical rather than a specific statement.
In short, there’s plenty of room to defend or oppose a position about the Constitution or any other issue without resorting to lame attempts to deliberately mischaracterize what an opponent said. It’s been my experience that the people most likely to do this are either partisan ideologues who can’t distinguish between an actual analysis and a strongly held belief, and college instructors who don’t want to distinguish between an actual analysis and a strongly held belief.
So, I end with asking the same question I’ve asked many times before. Is the purpose of these debates to vent strongly held positions, or see how well one can manipulate the words of an opponent to ascribe a new meaning to them and then argue against that strong man position? Or is it to actually debate an issue honestly, and see how well either position can be defended?
Gestell:
There is actually a ninth point that Weigel failed to mention: Entertainers know what is best when it comes to formulating American foreign policy.
sedonaman:
I don’t doubt that you’re correct–but then the question becomes: Is Obama all that funny?
Mr. Jackson makes heavy weather where perhaps light winds should be forecast instead. He’d be correct if I’d said (or implied) that the Constitution was ambiguous on “all” topics or even on “most” topics, which I did not say at all. “Any” does not mean the same thing as “all.” I agreed with Mr. Jackson’s “specific” ambiguity–having to do with the exercise of “power and authority.” Of course the Constitution is admirably clear on many points, but not all. Mr. Jackson believes that the ambiguities he has identified as such were “deliberate” (his own word). If this is so, then, as I see it, plenty of room is opened up for interpretive uncertainty. Once this is granted, then he has, as I’ve said, taken a step in a liberal direction. Liberals, and not originalist conservatives, are inclined to believe that, where the Constitution’s meaning isn’t obvious, room exists for reading specific constitutional language in ways that suit contemporary concerns and perspectives. Conservatives don’t, or at least shouldn’t, do this. The Founders may have actually supposed that Americans living generations or even centuries in the future might have come up with some good or useful ideas about what their national government should do or not do. Do you suppose they might have thought to leave wiggle room in at least some parts of the Constitution?
Gestell:
No, he isn’t. He might be if what he is inflicting on the country wasn’t a tragedy of Shakespearian proportions.
I saw a debate between Scalia and Breyer and remember in their discussion about “the evolving standards of decency of American society” used to justify the idea of a “living constitution”, Scalia made a point that he didn’t believe in it, but granted that if one does, who decides the current “standards of decency of American society”, the “cream at the top” who have spent their whole lives in liberal East-coast ivory towers, or the people through their representatives? Since liberals cannot get a majority behind most [if not all] of their social engineering initiatives [let alone a super-majority of states] and since it is a lot easier to convince five judges who are already leaning your way, they must invent red herrings to justify what everyone knows to be the case – to circumvent the requirements of the constitution in order to get their agenda codified.
Gestell:
Yes, they left some “wiggle room” in the constitution; it’s called the 10th Amendment, leaving some powers to the states or the people.
sedonaman:
I’m not so sure: Obama is doing an impression of being President, so he’s a mimic, at the very least.
On ‘evolving standards of decency:’ We don’t engage in bear-baiting, trial by ordeal, or hang witches–so there must be at least something to the idea that such evolution takes place. So how do ‘we’ know these things? How do any of us come to learn what is, and what is not, generally acceptable in the society to which we belong? Parents? Schools? Churches? Lots of sources, it seems to me. We social scientists lump all of this together with our concept of “socialization.” Political representation is one way in which this knowledge could be communicated as a basis for law-making. Is it the only way?
Traditionally, liberals have turned to the Supreme Court when a consensus about an issue does not yet exist in the general population. Consider racial segregation. The public as a whole had no problem with the existence and maintenance of racial segregation when the Supreme Court began making decisions that attacked this practice. Many conservatives argue from this fact that government should not act until or unless the public is on board. How long should blacks have waited?
Most of the goals of the civil rights movement were indeed elements of liberal ‘social engineering,’ and the various civil rights acts were instruments of massive social engineering. Liberals think this was right and proper, conservatives don’t.
sedonaman,
Here’s the language of the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Here’s the problem: Since the ‘powers’ aren’t otherwise identified, what the heck are they? One answer is that they refer to all of the powers possessed by state governments at the time the Constitution was ratified–but because the Amendment isn’t specific, we just don’t know if that was the case.
When Madison proposed the Amendment, he said:
“I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.”
In other words, Madison didn’t think it was really necessary, but he proposed it anyway.
One more issue: How should we interpret that clause “or to the people”? Does this mean powers possessed by the “people” as a whole, or as divided into their various political units, i.e., the states? If the former, how are the “powers” to be made articulate?
The “Tenther” movement wants to use the 10th to control the federal government, but it’s not all that clear that this use is inherent in the actual language of the Amendment.
This is why it’s so hard to have a real debate with an ideologue, particularly a liberal.
Statement #1. “Of course, he’s [Jackson] already taken a big step toward liberalism by recognizing that there is, or even that there can be, any ambiguity in the Constitution on any topic.”
This is a statement about my specific thought process, which Gestell suggests is a “big step toward liberalism”.
Statement #2: “He’d [Jackson] be correct if I’d said (or implied) that the Constitution was ambiguous on “all” topics or even on “most” topics, which I did not say at all.”
This is a statement about what the constitution may or may not be. It’s not a statement about what I [Jackson] may have said about the constitution.
This is a dishonest way to debate an issue. We can discuss whether the Constitution is deliberately ambiguous at specific points, and the reasons why this is the case. That is an entirely different discussion than mischaracterizing my position to make a phony point about “liberalism”.
Having accidentally misstated my position, an honest person would have said something to the effect of “oops, sorry. You actually said there was deliberate ambiguity on specific parts of the Constitution, not ‘… there is, or even that there can be, any ambiguity in the Constitution on any topic.’ My mistake. Now let’s discuss what this ambiguity means for the thought that ‘room is opened up for interpretive uncertainty’.”
On the other hand, a person who deliberately mischaracterized my position would see no big deal about having done this, and try to deflect the issue by talking about something related, but different.
Accidental or deliberate, a good liberal sees nothing really wrong with doing this because, well, what’s the big deal about mischaracterizing your opponent’s position to make your point? The purpose is to ‘win’ the debate, so you do what you need to do to make your point.
It explains a lot, actually, about how this country is run at present.
As for the assertion that you must somehow lean “liberal” if you recognize that the Constitution “is opened up for interpretive uncertainty”, again only the mind of a partisan or an ideologue can come to this conclusion.
Understanding the fact that the Constitution is as I described it above (I’ll spare everyone the cut-and-paste — just see my previous comments), doesn’t lead to the conclusion that you must adopt the liberal Living Constitution bilge that the Constitution means whatever you want it to mean. Those who claim “… room exists for reading specific constitutional language in ways that suit contemporary concerns and perspectives.” are quite different from those who understand specific things like we’ve been discussing; namely, the Constitution has set up deliberately conflicting power and authority with regard to the authorization and exercise of US military power.
To conclude from this obvious fact that the founders were leaving “wiggle room” to just make things up (like the “right to privacy”) so that “… Americans living generations or even centuries in the future might have come up with some good or useful ideas about what their national government should do or not do” is the same kind of intellectual exercise that statements 1 and 2 above produce.
This is why it matters to actually get things right before you advance your position. Otherwise, you’re just a more highly educated version of the foaming at the mouth ideologue who mouths “Fox Lies” or “Bush Sucks” to any challenge to their position.
Gestell: What else in the constitution would limit the power of the federal government [in this case the courts], or do you believe it is unlimited?
PEJ:
Gestell is pulling the same old, tired, liberal tactic of changing the conversation when confronted with a position that cannot be won by logic. Remember what is “is”? he is trying to parse words with the different meanings of his dictionary. This strategy should be called out for what it is, a losing position. On a debate team he would be the fifth man on a four man team.
hvance
Yeah, I know. It’s Raymond Ingles writing under a different name.
The thing I enjoy most about discussing issues with conservatives, whether it’s you, Bill, or anyone else, is that we can all state our positions forthrightly, and no one tries to weasel out of anything by playing word games. Unlike the liberal stereotype, we’re not all homogeneous mind numbed robots. We each make our case, and let the chips fall where they may when that position is challenged. At the end of the day no one, except for the extreme loons who are a distinct minority among us, insists that we all believe the same things. We can disagree about basic issues without resorting to cheap debating tactics.
The difference between me and Gestell, a self-identified liberal, is that even though I have a Ph.D. in political science from the University of Chicago — I’m not afraid to name my school, and degree, instead of just leaving people with an impression that I have a Ph.D. from some school, somewhere, in a relevant subject — I’ve been a businessman for the past 30 years.
When we make mistakes in the real world, we acknowledge and correct them. To do otherwise would adversely affect the bottom line. In the academic world, where intellectual honesty is supposedly held in such high regard, you can never admit to being wrong. It undermines your research, which undermines your reputation, which threatens your position as some new “young buck” displaces you with a better theory. So, right or wrong you plunge ahead defending yourself against all critics (valid or otherwise), and never admit to making any kind of substantive error.
I’ve been away for a year, and I was asking a leopard to change his spots. My mistake. I freely admit it.
For those of you looking in on this conversation, here’s a not-so-tongue in cheek passage I wrote several years ago about why I chose the real world over academic life after receiving my Ph.D. It will explain a lot about what I said above.
Once you’re admitted into the Ph.D. program, you need to choose a subject for your dissertation. Your thesis must be an “original contribution to knowledge,” not just an extended research paper.
You think, worry, study, worry, think, study, and worry for a long time about your topic. Suddenly one day it hits you. I’m going to do my dissertation on the mating habits of the South American fruit fly.
Unfortunately, it’s not enough to identify the subject matter. You need to have a unique, distinctly original explanation for that event or phenomenon. You decide after much thinking, worrying, studying, thinking and worrying again, aided perhaps by a few beers or other more powerful stimulants now and then, that you’ll explain their mating habits by pointing out the unique relationship between three legged dwarves who inhabit a neighboring island, and semi-annual sunspot activity. Sex, basic instinct, and the need for procreation are relegated to secondary factors, or dismissed all together. That’s the traditional explanation, and to be a unique contribution to knowledge, you have to come up with something outside the box.
So, you collect some data, run a few regression analyses, and massage the findings until viola! — you’ve supported your thesis. You write it up and successfully defend it, and you’re given your Ph.D. (which you now learn stands for “Piled High and Deeper”). You interview for a teaching job or apply for a position at some prestigious think tank, and get hired. You’re now successfully employed in your profession.
At least 4 years have passed from the time you entered the Ph.D. program until the time you received your degree. Once you finished your classes, the bulk of that remaining time was spent conceiving, researching, writing and defending your dissertation. You’d like to relax but you’ve just gotten a new job, and even though it’s not in some private sector hell-hole where you’ll slave away to make Dick Cheney richer while barely making your own ends meet, they still expect to see results. And fast! And this pressure will stay on you until you get tenure, or are firmly ensconced in your position. And that might take years.
Fortunately, unlike the private sector where success is measured by how much you contribute to the bottom line, in the university/think tank world it’s a function of how much you publish. You just started your new job Tuesday and already they’re asking you when your first book is coming out. Do you start on some new, innovative research project that may take you 18 months to finish? No. You take your dissertation, restructure it a little, and get it published. Instant book, instant recognition, instant results.
But there’s one small problem. You had to push and pull and massage your data to come up with those “unique findings.” And you had to do it as a wet-behind-the-ears kid still learning his craft, so it was a little weak on analysis and sloppy at points. It was good enough to demonstrate your scholarship and indicate your future potential, so you know you legitimately earned your Ph.D. But was it really tight enough and adequately supported to publish for all the world to see?
The answer is “No,” but you’d need another 9-12 months of data collection to really get it in shape. And with this new data some of your conclusions are bound to change (if not entirely, then placed in a much broader perspective). But you don’t have 9-12 months, so you go ahead and rush your decent, but flawed dissertation into publication.
To your pleasant surprise, the new book is well received by other intellectuals who marvel at how you were able to make your data sing and stand conventional wisdom on its head. The deep flaws in your work you have come to recognize after months and months of reflection remain well hidden from most readers, who aren’t going to go back and independently re-work your numbers. After all, you have a Ph.D. from a great university, and there’s no reason to suspect that you’re deliberately manipulating your findings, so the same professional courtesy is extended to you that they expect others to extend to themselves. Besides, everyone knows that a true intellectual will grow over time, so any current deficiencies in your methodology or conclusions will be worked out in the years to come.
It’s now a couple of years down the road. You’ve long abandoned any notion of “fixing” the shortcomings (or outright errors) in your dissertation/book. Not only are you knee-deep in other projects that consume all of your time, you’ve made a national reputation for yourself arguing the fruit fly/sunspot/three legged dwarf hypothesis. Your fellow intellectuals have embraced you as a “deep thinker,” and maybe, just maybe, you were being too hard on yourself in micro-analyzing your own work. On reflection, it wasn’t such a bad piece of work after all. Any lingering doubts about the accuracy of your data or the wisdom of your finding are buried once and for all.
That is, until some snot-nosed Ph.D. candidate releases a book challenging your data and attacking your assumptions. That’s his own original contribution to knowledge, and because of it you’re about to have your world come crashing down upon you.
Unless you fight back.
Instead of admitting to any of the flaws he identified in your original work, you attack him and his scholarship. You do everything you can to belittle his work and, in so doing, support your original thesis. There’s no debate, no search for common understanding. There’s only all out pseudo-intellectual combat. If you lose and he wins, he’ll be the new golden boy. He’ll get the job, and the funding, and the public recognition while you’ll be washed up before you hit 40. Too old to start over in the private sector, and too deficient to hold onto that Ivy League job or cushy think tank position, you have visions of wasting away the next 25 years as a senior lecturer at East Podunk Community College.
I could go on and on for a few more pages, but I think you get the point. The dissertation process isn’t the first step in a person’s life-long intellectual development. It’s the process by which his professional conclusions will become etched in stone for the remainder of his life. If he actually puts a well-reasoned, well-researched, intellectually honest dissertation together that fudges nothing, and presents a genuinely credible set of conclusions, the experience is a good one. Or if the flaws are minor — and can be conceded publicly without calling the entire book into question — he can survive and prosper in the years ahead. But if the defects are more serious, and he’s now produced several books and articles based on that shaky foundation, his professional life is over if he concedes anything. He will go to his proverbial grave insisting that sunspots and three legged dwarves are the controlling factor, not sex-drive and instinct — that explain fruit fly reproduction.
Phil,
It’s good to have you back.
The real problem in debates like these is that each side is talking a different language. The presuppositions are completely different.
For example, Gestell asks, “Since the ‘powers’ aren’t otherwise identified, what the heck are they?” For those of us who understand that the Constitution creates, defines, and limits the powers of government, the answer to this question is simple.
But this basic understanding is becoming less common. If we lack the understanding of the purpose and function of the Constitution, we open the door to a whole host of “ambiguities.” No wonder so many people view the Constitution as “living.” If they do not know what the Constitution really is, the only other choices remaining are that it must be either living or irrelevant.
MM:
Great points!
It’s good to be back, but it will be short lived. I accepted the position as COO of a company last year that is building out franchise stores in 3 states. (So much for my “retirement”. When my partners asked me to get involved in this new venture, I couldn’t say no).
I had a few unexpected moments these past few days that allowed me to get on line. But our first two stores open in Texas in 3 months, and it’s not going to give me any real time to participate much longer. Unless I can realistically have a few days to debate an issue, I won’t get involved. There’s no value in stating a position and then leaving the discussion unless you’re the original author of the piece, which gives you the choice to let your original article stand on its merits w/o further comment.
take care, Phil
Gestell:
Is this the only argument that “Livingers” can put forth to justify circumventing the Constitutional amendment process? Well, that argument cuts both ways. It shouldn’t take a Civil War to overturn a bad Supreme Court decision as it did in 1861. If there is a crying need, as in freeing slaves and/or guaranteeing them citizenship and equality, then impatient liberals should support a change to the process, such as an amendment to the constitution that allows a majority of the House Of Representatives to overturn a bad decision. Liberals also have to consider that the worm eventually turns, and how they would feel if a real conservative majority got on the court and went to work engineering society according to what it considers “right and proper”. If waiting to act until the public gets on board is not a consideration, then I could ask how long the unborn must wait for their right to life.
Blacks, women, and 18-year-olds have the right to vote, while aliens and felons do not, not because of any principle or requirement of equality (or “equal protection”) or the Civil Rights Act, but because they were given the right by the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, respectively.
As I have indicated, the reason that conservatives don’t is because it circumvents the process whereby the people have a voice [as they did in getting those amendments passed] in something before it gets foisted on them.
Sedona,
I’m not seeing how the Constitution gives the right to vote. Those amendments codified the right to vote for certain groups, but nowhere in the Constitution does it define who can vote.
Those amendments were not ratified because the Constitution needed modifying, they were ratified because of a number of laws that restricted voting rights.
The right to vote was not created by the Constitution. It is one of the pre-existent “unalienable rights” assumed by the Constitution.
MM:
You are correct. Actually, it says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
I should have been more precise, but my point is that the amendment precess was followed to ensure their right was not denied.
It should be widely known that the US Constitution provides no right to cast a vote in a general election as this was the decision SCOTUS arrived at in Bush versus Gore (00-949) which effective ended the selective recount procedure being attempted by Al Gore in Palm Beach and Broward counties in 2000.
As for ; “Now if only I can get Mr. Jackson to take one more step and accept the ‘living Constitution…” with conservatives setting up for a sweep of both ends of Pennsylvania Avenue in 2012; I’d be careful what I wished for Professor, ‘cause you just might get it. My guess is that with solid conservative majorities in both houses and a conservative executive, the last thing you’d want is a document open to almost unlimited interpretation by conservatives.
As with everything else; your fervent belief in a living constitution is predicated on exactly which ideology is doing the interpreting. This is the reason you are so enamored of a Con Con. Knowing the history of progressives for ‘stacking the deck’ in elections, debates, and legislative actions (see http://www.newsmax.com/InsideCover/schumer-democrats-extreme-boehner/2011/03/29/id/391080 for reference) you would welcome a constitutional convention as any such meeting could not help but be ‘rigged’ in your favor.
Bill,
Another way of reading that SCOTUS decision is this: the majority would move heaven and earth to prevent Gore’s recount in Florida and to make Bush the president.
As for the upcoming conservative sweep–and I agree that this is the likely scenario for 2012–we’ll all have the opportunity to see just what a conservative US government will do. I doubt if I’ll like very much of it, but in this country, the people get to decide. It won’t matter whether those in office believe in a living Constitution or the strictest originalism, for what matters at the end of the day is the ideologically-driven agenda of those with power. It’s been said for many years that the Supreme Court follows the election returns, and I see no reason for that to change after the big conservative win in 2012.
And you miss my point on a Con Con. I do not want one at all because I believe that whoever brings it into existence will be able to do pretty much whatever it wants with the Constitution. And a Con Con has always appealed much more to the Right than to the Left. Connect the dots and the reasons for this appeal become obvious. The very last thing I’d expect would be for liberals to stack the deck. If there ever is a Con Con in the US, it won’t be liberals who bring it about.
“And you miss my point on a Con Con. I do not want one at all because I believe that whoever brings it into existence will be able to do pretty much whatever it wants with the Constitution. And a Con Con has always appealed much more to the Right than to the Left. Connect the dots and the reasons for this appeal become obvious. The very last thing I’d expect would be for liberals to stack the deck. If there ever is a Con Con in the US, it won’t be liberals who bring it about.”
Let me actually validate Gestell’s point.
Toward a Constitutional Convention
By Phillip Ellis Jackson, on March 19th, 2010
When government gets too powerful and oversteps its bounds of authority, the Constitution give us all a way to fight back.
As President Obama has said, and said again, and then said some more, everything has already been said about the issue of what has been euphemistically called “National Health Care Reform” that needs to be said.
Surprisingly, I agree with him. From a substantive standpoint, those of us who know this whole thing is an agenda-driven farce have come to our conclusions. Nothing the Big O or anyone else says about it is going to change our grip on reality. Those who are in favor of bankrupting and ruining the US Health Care system to “improve” it aren’t going to change their minds either. They are no more likely to concede that ObamaCare is designed to augment federal government power instead of improve the quality and level of healthcare services than they are to refute the notion that the US government is hiding aliens in Area 51 when it isn’t blowing up the levees in New Orleans or perpetrating 9-11 as an inside job.
So, what exactly is there new to write about this issue? Since facts and figures don’t matter (ten years of taxes and six years of spending do not equal a “deficit neutral” program; Medicare cuts cannot be “savings” if the money is immediately spent on other programs; you can’t instantly add millions of new people to a system that cannot expand its specialized personnel and equipment overnight and expect that health care won’t be rationed — you know, little things like this), all that is left is to appeal to common sense.
But even here this approach is flawed, because an appeal to common sense requires that the other individuals have some common sense in the first place, and if that was the case, we wouldn’t be having this national conversation in the first place.
So let me take a different approach, and toss in something new to consider should the Dems succeed in rewriting, redefining, or ignoring enough rules and basic Constitutional provisions to ram “health care reform” down our collective throats. Right now a sufficient number of states have passed laws objecting to aspects of the socialization of 1/6th of our economy and/or the unconstitutional provision that the Federal government can require individual citizens to buy specific products or services, that we have reached a “constitutional threshold.”
In other words, if the inevitable lawsuits that arise from the passage of ObamaCare are stuck down by the lower courts or upheld by the Supreme Court as “Constitutional,” then an interesting option remains: change the Constitution.
“But,” you say, “there aren’t enough congressmen sympathetic to a constitutional amendment prohibiting such actions by the Federal government to get this ball rolling.” That’s true. But it’s equally true that the Constitution can be changed even if every member of the Legislative (not to mention Executive and Judicial) Branch is opposed to this action. We do this not by originating a Constitutional Amendment in Congress, but by calling a Constitutional Convention of the 50 states.
I first wrote about this four years ago when discussing some of the, let us say, more “curious” Supreme Court decisions regarding our First Amendment and other rights. If what I wrote then made sense, it should hold up equally today as it pertains to the present issue under discussion. The only difference now is that enough states have already begun to act so that this is no longer a purely academic argument, but one that could very well signal a way to return the American system of government to its proper foundational roots.
So here it is, from November 29, 2006: “What We Need is a Constitutional Convention.” As you read it now, think of how this might play out over the next 12-18 months should the Federal Government finally overreach and trigger a nation-wide, grassroots backlash.
* * *
Few people know this, but there are actually two ways to amend the United States Constitution.
The first is the only one we have ever used. Congress puts an issue to a vote, and if it passes muster at the Federal level, it’s off to the states for ratification or rejection.
The second way is summarized nicely by Wikipedia:
Besides the more common method, there is an option to assemble a national convention to propose amendments to the United States Constitution. Article V of the Constitution requires the Congress to “call a convention for proposing amendments” . . . “on the application of the legislatures of two-thirds of the several states.” With 50 states presently in the Union, there must be applications made by lawmakers in at least 34 states in order to trigger this alternative procedure. The convention to propose an amendment (or amendments) has no ratification powers; it may only draft and propose the amendment(s), which must then be ratified by either the state legislatures or smaller conventions conducted within the individual states.
For years this second option was avoided like the plague for fear of ruining the very document it proposed to strengthen and protect, namely the United States Constitution. Unlike “Option One,” which puts forth a single amendment for consideration, there is nothing to prevent a national convention from looking at every paragraph, clause and semicolon in the U.S. Constitution. In other words, the impetus could be, say, to further refine and/or define the succession to the U.S. presidency, but it could end up modifying or eliminating all together each one of the Bill of Rights, every other previous amendment to the Constitution, and any/all provisions within the main body of that document itself.
As a wet-behind-the-ears poli sci major in college, I was horrified at the thought that based on the whims of the times we might end up tinkering with the right to free speech. That right is sacrosanct in American political history, and more than any other provision embodies the essence and distinctiveness of the U.S. Constitution. If not free speech, then a Constitutional Convention run-amok could trash the right to a fair trial, restrict the right to vote, place undue restraints on the exercise of commerce and free trade, and harm the country in a number of other ways.
But then Congress decided a couple of years ago that it didn’t like being criticized and passed something called “Campaign Finance Reform.” [Note to file: The more egalitarian and uplifting the name of a particular piece of legislation, the more insidious and venal its intentions usually are. That's one way to know what to support and what not to support based on a cursory review of a typical hundred-plus page bill - loaded with earmarks and special provisions masquerading as high-minded principles. But I digress.]
Anyway, like most reasonable people who looked at the First Amendment and understood not only what it said, but what it meant, [fn1] I was sure that the Supreme Court would strike this bill down as patently unconstitutional. But they didn’t, and now George Soros can spend millions of dollars trashing what I believe, but I’ll go to jail if I give too much support to a political candidate or political party that represents my views.
Then of course there was the case that made it all the way to SCOTUS (which, by the way, kind of decided a couple hundred years ago that it was the final word on all subjects constitutional, even though the Constitution itself didn’t exactly give them this specific authority) where some homeowner objected to having his land taken from him by the state to give to a private developer. The Kelo decision tossed that one out the door, using the precedent where states can deny personal property rights for the common economic good. Yeah, sure, a new shopping mall will probably result in more local tax revenue than Joe Schmo’s three bedroom split-level, but that’s not the point. Thanks to Kelo, there’s virtually nothing a State can’t do to you, or your property, if some bureaucrat thinks the net effect will be better for his paycheck and pension plan.
Add to this the “right to privacy” that can’t be found anywhere in the Constitution but exists anyway in the mind of the Court, and the right to abortion that flows from this hypothetical right to privacy, and a few dozen other diminutions of what it means to act as the Commander-in-Chief independent of Congressional permission (the War Powers act), conduct interstate commerce (if you assemble and sell your product entirely in Kansas, but breathe air from neighboring Missouri, you’ve just engaged in “interstate commerce” and are thus subject to Federal regulation), and so on, and so on.
Add it all up, and then ask yourself the Big Question: Exactly what is it we’re protecting by not having a Constitutional Convention and revamping the whole ball of wax? Sure, the nuts on the Left will try to toss out the Second Amendment, and in light of the shoddy education most people receive today about politics, economics, and other formerly-important issues (see my Looney Liberal Chronicles, Chapter 1), they might just succeed.
But then again, despite what Chuck Schumer and the national media tells us, the majority of people in this country are opposed to abortion, and don’t want to see their taxes constantly raised by Congress to pay for social spending experiments, and would probably support a fairer system of free speech and religious expression than we have at the present (including placing restrictions on media attempts to influence national elections by deliberately misreporting or ignoring crucial facts).
So in the end, we’d probably come out ahead on most of the issues that are important to the future of the country. Sure, the resulting Constitution wouldn’t have the hallowed history that the document created in 1787 can lay claim to. But to cite one of my favorite lines from My Cousin Vinny, “so I ax you, what difference does it make what kind of clothes the sonofabitch was wearing” when he shot Bambi’s mother? Bambi is still dead, regardless.
The hallowed history of today’s Constitution counts for virtually nothing in protecting the rights we all thought were perfectly clear when we read the original document. In the blink of a political eye 5 members of the Supreme Court can invent a new hypothetical “Right” that supersedes the old written-down Right, or define any term so broadly that it has literally no meaning at all.
Thomas Jefferson is rumored to have said that a good fire every 10 years is a great way to keep democracy alive. It clears out the deadwood and thins out the underbrush, and in so doing lets the world renew itself. We clearly don’t need to put a match to the Constitution, for even with its flaws there is nothing to equal it in human history. But we can put a match, metaphorically speaking, to the deadwood of thoughts that has plagued this nation the past forty years and turned many of these hallowed principles on their head.
It’s time to renew faith in the Constitution by renewing the Constitution itself. Rather than bleed it to death slowly as a “living document” that succumbs to every whim and fancy of the 9 Supreme Court Justices and their political followers, let’s make it completely relevant again and have it reflect, once more, the true thoughts and aspirations of the people of this country.
Endnotes
1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Gestell,
Actually SCOTUS didn’t prevent Gore’s recount in Florida. SCOTUS prevented Gore’s recount in selected overwhelmingly liberal Florida counties; 2 out of a total of 67 counties. Although the Florida Supreme Court ordered a state-wide recount, team Gore wasn’t even attempting to comply with that. They wanted to recount counties like Broward and Volusia first ( an additional 567 and 98 net gained votes for Gore). They would have halted as soon as they reached their ‘nut’ of one more vote than Bush had. Likewise there were constantly, shall we say, ‘evolving’ standards of what might actually constitute a vote.
All SCOTUS did was go to the videotape, in this case the US Constitution (OMG not THAT pesky document again!) and point out to the Florida Supreme Court that there is no codified ‘right’ to vote in a general election.
Bill:
Help me out here. Just exactly what does this mean?
While the US Constitution contains amendments that specify that persons cannot be denied the right to vote due to such things as race, gender, etc. the US Constitution never explicitly guarantees a ‘right’ to vote as it does, for example, guarantee a right to free speech.
The US Constitution does require that Representatives be ‘chosen’ and the Seventeenth Amendment that calls for the popular election of Senators; “…by the People.” While who exactly compromises ‘the People’ has been expanded and detailed via amendment several times and qualifications for voters are left up to the individual states by this document. However; to my knowledge, there is no enumerated (codified) ‘right’ to cast a ballot detailed in the US Constitution. At least I cannot find it. Maybe it’s in the penumbras next to that right to abortion?
I can hear the leftists now. “Sacrilege!” “Blasphemy!” “How can we have a democracy without the right to vote!”
Mr. Wavering, I do appreciate your phraseology regarding free speech, but I’m not even quite sure that your use of “guarantee” is correct. “Congress shall make no law… abridging the freedom of speech” is the sum total of what the Constitution says about speech. Congress is required to be silent on these matters.
The word “right” doesn’t even appear until after this statement. Maybe I’m parsing it too much, but I think that the idea of speech is so fundamental (along with religion and the press) to liberty, that to even ascribe these things to the realm of rights does violence to the basic concept.
It does make me wonder, though. “Congress shall make no law…” A pretty simple statement. How many laws have been made about religion, speech, assembly, the press, and petitioning for redress of grievances?
Bill:
I would think it would be up there at least next to the right to privacy, which the court says is implied in the Constitution and was used to claim that the right to an abortion is also in it by extension. If the court can extrapolate a right to an abortion by reading invisible data points, why can’t it do the same with visible ones regarding voting?
And in neither case do I recall any hand-wringing over what a ‘right’ or ‘the people’ are. Makes me think the court keeps some ‘escape clauses’ handy so Brer Rabbit can get to where he wants to be.
Since the right to vote is not codified, I conclude that the New Black Panther Party wasn’t really violating white voters’ ‘rights’ at all by keeping them out of the polling place and that Eric Holder was perfectly within his authority to decline to investigate.
There! See how easy it is to qualify for a highly respected position in this administration!
MM:
You haven’t even addressed what constitutes ‘Congress’ either. I don’t have the evidence but once heard that ‘Congress’ could mean a public school bus driver who drove past ‘too many’ churches and thus ‘respected the establishment of religion’, a public kindergarten girl who said grace over her cookies and milk at school, an elementary school girl saying the rosary on a school bus, and, lest we forget, the Boy Scouts who are BOTH ‘Congress’ AND a ‘religion’, according to the ACLU.
As far as laws restricting speech, consider how many colleges and universities there are, and just about every one of them has a speech code. Here is the “Speech Code of the Month” http://thefire.org/article/13009.html [note that you can enter your school's name in the search box]. But these don’t count because colleges and universities are clearly not ‘Congress’.
Sedona,
Colleges aren’t passing laws, either.
Our conversation here illustrates how far from our roots we have wandered. Try discussing this with a leftist and they will look at you like you are from another planet. They can’t even conceive of a government that is not involved in every miniscule detail of our lives.
My friend asked me today why Barry Bonds was up on charges. What law did he break? Apparently he purjured himself before Congress. Over the usage of steroids. We couldn’t even decide if he’d broken a law by using them, yet he is facing federal charges.
The right to vote is first mentioned in the 14 amendment, and made universal by the 15th and 19th amendment. Interestingly, it is not the Constitution that forbade blacks or women from voting.
So, do we have a constitutionally protected ‘right’ to vote or not? Bill says no. Let’s take a look.
Bill would appear to mean that since a “right to vote” is not found among the enumerated rights identified in the Constitution that no such thing as a constitutional right to vote exists. His position depends upon the notion that what the Constitution does not explicitly permit, it either forbids or is silent about. There are a lot of different ways to go about attacking this position. Perhaps the simplest is to invoke the 9th Amendment. Here it is: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. The general problem upon which 9th Amendment jurisprudence often founders is that there is no obvious way to identify those “other” rights retained by the people. Why couldn’t one argue that a right to vote is among these non-enumerated rights? Such a move opens a door thoughtful conservatives should want to keep firmly closed. This is why Robert Bork famously called the 9th Amendment a ‘blot of ink’ and refused to take it seriously, although how a conservative can refuse to take any constitutional language seriously is more than a bit confusing. I won’t even bother to discuss the fact that Bork clearly decided what parts of the Constitution were ‘living’ and what were not, and what was his basis for doing that other than his ideological agenda?
Bill relies on ‘codification,’ so let’s try this out. Here is language from the US Code—I note that Bill didn’t specify which ‘code’ he had in mind, however. I’ll assume that he’s using “codified” as a synonym for “enumerated,” and won’t get too picky:
8 U.S.C. § 31:
“All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.”
If citizens are “otherwise qualified by law” to vote, it seems to me at least somewhat likely that the verbs “entitle and allowed” suggest that they are exercising at least some sort of ‘right,’ and what else could this ‘right’ be but a constitutional one?
Now I’ll throw in a few citations from case law. Perhaps one of the lawyers who posts on IC will try to shoot this part of my exercise down. I await refutation. As for Bill, his response may well be couched in the impatience that some of today’s conservatives have with the very idea that the Supreme Court—and not themselves, say—is an authoritative interpreter of the Constitution.
The common denominator of my citations is the self-evidence that the Supreme Court finds in the notion of a ‘right’ of citizens to vote that must be protected. Here is an example.
“[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
In a variety of cases (and in laws as well) the result is to limit or make illegal various sorts of discrimination or burdens placed on citizens to make it difficult or even to prevent them from exercising an antecedent right to vote.
Restrictions based on race, poll taxes, property qualifications, tests of voters’ knowledge, and excessively long or capriciously defined residency requirements. Such limits or rejections by the Court make no sense unless they are seen as unconstitutional infringement of (what else?) but a constitutionally protected right to vote. Now while conservatives may not like the law or the court decisions, they can hardly deny that such exist. A conservative Con Con would have to come up with a better-written Constitution reducing or eliminating such a right—since the Constitution we’ve got doesn’t do this. Perhaps Dr. Jackson will be willing to lend his expertise to this undertaking.
So, here goes:
In its decision against an Oklahoma state law that grandfathered illiterate whites while imposing a literacy test on blacks [Frank Guinn and J. J. Beal v. United States Citations 238 U.S. 347 1915] we find:
“The Fifteenth Amendment does not, in a general sense, take from the States the power over suffrage possessed by the States from the beginning, but it does restrict the power of the United States or the States to abridge or deny the right of a citizen of the United States to vote on account of race, color or previous condition of servitude. While the Fifteenth Amendment gives no right of suffrage, as its command is self-executing, rights of suffrage may be enjoyed by reason of the striking out of discriminations against the exercise of the right.“
[Is it really all that difficult to figure out what the “right of a citizen of the United States to vote” is all about? Also, note the final sentence.]
In its decision against a Texas law that allowed the Democratic party to run a ‘white primary [Smith v. Allwright , 321 U.S. 649 (1944) ] the opinion includes:
“The right of a citizen of the United States to vote for the nomination of candidates for the United States Senate and House of Representatives in a primary which is an integral part of the elective process is a right secured by the Federal Constitution, and this right of the citizen may not be abridged by the State on account of his race or color.” [p. 661]
And on the following page [p. 662] P. 321 U. S. 661.
[The right to vote] “in a general election, is a right secured by the Constitution. United States v. Classic, 313 U.S. at 313 U. S. 314; Myers v. Anderson, 238 U. S. 368; Ex parte Yarbrough, 110 U. S. 651, 110 U. S. 663 et seq. By the terms of the Fifteenth Amendment, that right may not be abridged by any state on account of race. Under our Constitution, the great privilege of the ballot may not be denied a man by the State because of his color.
[Can Bill tell us what this “great privilege” might be if it is not a constitutionally authorized and protected right to vote?]
The language of several constitutional amendments would appear to assume the existence of a constitutional right to vote, on pain of incomprehensibility if read otherwise.
I’ll start with the 24th amendment Section 1. “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”
Now the 19th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Here’s that conservative bête noire, the 14th Amendment, at 14.2
“But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
Now consider the 15th Amendment, at 15.2:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” 1.
Now I turn to the Congress of the United States:
From Chisom v. Roemer (90-757), 501 U.S. 380 (1991) I extract some points on civil rights legislation. The majority cites the Voting Rights Act of 1965, as amended in 1982:
“Sec. 2. (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b). “
Section 14(c)(1), which defines `voting’ and `vote’ for purposes of the Act, sets forth the types of election practices and elections which are encompassed within the regulatory sphere of the Act. Section 14(c)(1) states,
“The terms `vote’ or `voting’ shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.”
[Now what exactly is being protected here? Give you three guesses.]
And finally, from that wonderful law today’s conservatives mistakenly think they had something to do with passing:
The opening phrase of the full title of the Civil Rights Act of 1964 is:
“An act to enforce the constitutional right to vote,”
Now I fully expect Bill or another IC regular to reply, in effect, ‘So what? All these laws and court decisions are wrong. Just wait until we’re running the show. We’ll show ‘em.” So you will.
MM:
I guess we need to parse “pass” and “no law” as well. It’s obvious then that, since the little girl who said grace at school is “Congress”, it follows that her praying in front of her classmates is “passing a law” since laws are to regulate behavior which, in this case, consists of their inability to escape her actions pre-emptively. How this constitutes “passing a law” while public funding of footbaths for Muslims is not, I’m sure, would be the end result of a lengthy tortured treatise of legalese relying, no doubt, on one or more of the courts’ escape clauses.
Speech codes in public schools are a more obvious form of law because the institutions actually codify them within the rules governing student standards of conduct.
The concept of ennumerated rights is foreign to the Constitution, and is not part of conservative/libertarian thought. The Constitution is about government and its limitations, not the peoples’ rights. Rights are mentioned in passing as various limitations of government are discussed.
It is the political Left that looks to the Constitution as the bestower of rights. They invoke their “constitutional rights” whenever convenient, despite there being no such thing.
Indeed, it is correct to mention the 9th amendment in this context (one of the least favorite amendments to the Left, Judge Bork notwithstanding). James Madison, Federalist #45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Grstell:
Reminds me of the scene in It’s a Mad, Mad, Mad, Mad World where they are trying to figure out how much each was to get: “Each car gets a share; you get a share for being a person; you get a share for stopping; you get a share for going down the hill; you get a share for …” Ethel Merman interrupts and asks, “Why can’t we just divide it up equally? Buddy Hackett says, “Look. We figured it seventeen different ways and every time we figured it, is was no good because no matter how we figured, it someone didn’t like the way we figured it.”
>Perhaps Dr. Jackson will be willing to lend his expertise to this undertaking.
OK. I put this in its simplest form. The Constitution does not bestow, grant, or create “Rights.” Rather it protects, and in certain cases, advances the “Rights” that already exist independent of this document. “Rights” are not created by man. They come from God, and are the kinds of things identified in the Declaration of Independence.
The Constitution is a procedural document. It tells us things like who has/hasn’t the power or authority to do X; defines terms and qualifications of office; etc.
In doing this the courts — which have assumed some authority not specifically outlined in the Constitution, but whose assumptions have been agreed with (or at least not objected to, unless you’re Andrew Jackson telling the Supreme Court to enforce its decision, or President Obama ignoring an injunction or court ruling he doesn’t particularly like) — speak about their decisions in the language of “rights”. Thus we get the right to privacy, the right to abortion, and as I stated earlier, my personal favorite: the right to turn right on red.
We also have in this country the right to be wrong; the right to make an ass out of yourself; the right to choose Coke over Pepsi, and the government’s favorite: the right to pay taxes.
Just because you choose to speak about your actions/decisions as a small-r “right”, doesn’t mean they are actually big-r “Rights” as identified by the founding document that annunciated the justification for our present system of government. Yes, I know the Constitution uses both big and small r’s when discussing Rights/rights, so I’m being metaphorical here. The point is, the “Right” to free speech can give you the “right” to assemble freely, while simultaneously denying you the “right” to be heard (i.e. you can be ignored).
To understand the Constitution you must understand what is a basic fundamental “Right”, and what is (and isn’t) a logical extension of that right. People who aren’t looking for ways to create man-made rights have no problem doing this. People who think that because two concepts are described (correctly or not) using an identical word they must be the same thing, find “rights” everywhere.
Since we long ago abandoned the notion in this country of dealing honestly with words and ideas in favor of, as senator Schumer illustrated yesterday, just obfuscating an issue by simply charging that X = Y whether it does or not, and since there’s no Al Gorian “controlling legal authority” to resolve this matter, we settle these issues like we always have. We fight them out in the political arena. Thus, in one period of history there’s the “right” to have separate but equal facilities, and in another period there’s no “right” to do this.
I neglected to add my last paragraph when I transfered my comments from MS word —
We long ago lost the language to actually debate this issue. Now, as illustrative of debate above, conservatives try to explain Rights as they were originally conceived by the founders, while liberals cite US Code and various court decisions to identify our “rights”.
Al Gorian: A peculiar species from the 5th planet of the Gorian system, noted for its tendency to overstate minor problems and bloviate about topics outside its areas of expertise.
Al Gorians seem to want to engage in sloppy and disgusting public mating rituals (the female of the species is known as a “tipper”).
Al Gorians are noted for the size of their habitational constructions, as compared to other species in the local ecosystem. In fact, Al Gorians insist that other species, viewed as inferior, must have a lower impact on the environment than Al Gorians themselves.
Al Gorians love to count, but their unorthodox methods of counting always lead to sums favorable to themselves.
Mr. Jackson writes: “We long ago lost the language to actually debate this issue. Now, as illustrative of debate above, conservatives try to explain Rights as they were originally conceived by the founders, while liberals cite US Code and various court decisions to identify our “rights”.” A conservative who finds nothing relevant about rights in either the US Code or federal court decisions has replaced the founders, who were, if any American patriots have ever been, men of law and not caprice, with ideologically-driven fantasy. And a conservative who has excised “constitutional rights” from the political vocabulary of constitutional conservatism is probably just the sort of fellow who ought to be promoting a Con Con.
“A conservative who finds nothing relevant about rights in either the US Code or federal court decisions has replaced the founders, who were, if any American patriots have ever been, men of law and not caprice, with ideologically-driven fantasy.”
This is probably one of the most incoherent and deliberately disingenuous sentences I’ve ever come across.
First, let me applaud Gestell’s courage for once again putting his family and his own personal safety at risk to participate in a conversation with homicidally-inclined conservatives. Now to his supposedly “relevant” comments, pardon the pun.
Notice how my argument that — “The Constitution does not bestow, grant, or create “Rights.” Rather it protects, and in certain cases, advances the “Rights” that already exist independent of this document. “Rights” are not created by man. They come from God, and are the kinds of things identified in the Declaration of Independence. The Constitution is a procedural document. It tells us things like who has/hasn’t the power or authority to do X; defines terms and qualifications of office; etc. …To understand the Constitution you must understand what is a basic fundamental “Right”, and what is (and isn’t) a logical extension of that right.” — is summarized by Gestell as finding “nothing relevant about rights in either the US Code or federal court decisions …”
“Relevant” is a deliberately ambiguous word. Both Albert Einstein and Adolph Hitler were “relevant” figures in world history. The Soviet Constitution was a “relevant” document, just as Sharia law is “relevant”. “Relevant” is a word designed to imply something profound, while in fact stating nothing at all.
Rather than actually address the points I made, Gestell does exactly what I said liberals do when faced with a losing position. They change or obfuscate the issue. Instead of explaining why “in one period of history there’s the “right” to have separate but equal facilities, and in another period there’s no “right” to do this,”, as I characterized the way the courts grant and withdraw supposed “rights”, Gestell plays word games. If something is indeed a “Right” as the founders correctly identified the notion of fundamental Rights in the Declaration of Independence, it cannot be created or disallowed by a Court acting under the authority of the Constitution.
Like all good liberals, Gestell confuses the power or authority to do X under the Constitution, with the outcome of that action. The Courts have the power and authority to make rulings that can impact our Rights positively or negatively, and they can even use the language of “rights” to explain or justify their rulings. But just because someone calls X a “right” doesn’t automatically mean it’s a fundamental Right as recognized by the Declaration of Independence, which provides the justification for our government.
Therefore, in a discussion of the fundamental Rights recognized by the American political system, it’s the Declaration of Independence that identifies these Rights, not court rulings. The Constitution is, as I explained earlier, is “a procedural document. It tells us things like who has/hasn’t the power or authority to do X; defines terms and qualifications of office; etc.” Because the Court has the right to declare separate but equal a “right” in the 1800s, but not a “right” in the 1900s, doesn’t mean that the Court creates and removes rights. Rather, it means that at least 5 people made a decision one way in the 19th century, and another way in the 20th century. We’ve given the Courts this power under the rules of the Constitution (some of it assumed by the Courts themselves, and allowed to stand by the other two branches of government). But all this means is that the Court has the authority to interpret the Constitution, not “the right” create or eliminate our basic, fundamental Rights.
And I remind every one again that the topic of this thread is about our “Rights” as citizens of this country, not the power and authority of various branches of government.
Once again you see why I remain suspicious about Gestell’s self-professed credentials. I got my Ph.D. 30 years ago. I haven’t taught since the early 1980s. Yet I can craft a position about this matter from memory, while Professor Gestell can’t even debate the position I lay out other than to say that my statements mean the courts are not “relevant” (whatever that means?)
The founders were in fact “men of law and not caprice”, which is why upon securing our independence from Britain they established a system of law-based governance to address the details of life and government within the United States. Eventually the Constitution was adopted to — let’s all say this again out loud to reinforce the point for those having a hard time grasping it — provide a law-based “procedural document [that] tells us things like who has/hasn’t the power or authority to do X; defines terms and qualifications of office; etc.”
But in a discussion of fundamental Rights, which is the actual subject of this thread, the Constitution does not “bestow, grant, or create “Rights.” Rather it protects, and in certain cases, advances the “Rights” that already exist independent of this document. “Rights” are not created by man. They come from God, and are the kinds of things identified in the Declaration of Independence.”
To suggest that the Declaration of Independence, which is the justification for our system of government which recognizes and acknowledges basic fundamental human Rights that are advanced or protected through the chief legal document of the U.S — the Constitution — is an “ideologically-driven fantasy” is yet another example of what I suggested before, and Gestell’s response has so unintentionally but eloquently illustrated.
Since we long ago abandoned the notion in this country of dealing honestly with words and ideas in favor of, as senator Schumer illustrated yesterday, just obfuscating an issue by simply charging that X = Y whether it does or not, and since there’s no Al Gorian “controlling legal authority” to resolve this matter, we settle these issues like we always have. We fight them out in the political arena. Thus, in one period of history there’s the “right” to have separate but equal facilities, and in another period there’s no “right” to do this.
Rather than “excis[ing] “constitutional rights” from the political vocabulary of constitutional”, as Gestell asserts, I and other conservatives have done precisely the opposite. We’ve put them in their proper perspective.
Like I said above, and Gestell’s idiotic response demonstrates, We long ago lost the language to actually debate this issue. Now, as illustrative of debate above, conservatives try to explain Rights as they were originally conceived by the founders, while liberals cite US Code and various court decisions to identify our “rights”.
By the way, not to overly belabor the point, but I’ve got a thing about people deliberately lying about their credentials.
It’s not necessary to state your credentials when you make an argument; your words should be able to do that for themselves. But if you decide to tell everyone you have a Ph.D. like Gestell has, or in my case use your real name and have a website that cites your Ph.D. so everyone knows it by default, there’s a certain etiquette that every Ph.D. follows in a discussion with another Ph.D.
Gestell could call me “Phil”, or “Jackson”, or, “Phil Jackson,” or “that jerk”, or whatever he wants without using the qualifier “Dr.”. But if he decides to be insufferably formal, a real Ph.D. knows enough to say “Dr. Smith” or “Dr. Jones” to a fellow Ph.D. because “Mr.” suggests they aren’t a Ph.D. This is a tough degree to get, even from a marginal school. It’s simple professional courtesy to use the term “Dr.”, particularly when someone is attempting to be ‘courteous’ by addressing you in a formal way.
I don’t call Gestell “Dr.” because Gestell isn’t his real name. But to refer to me as “Mr. Jackson” instead of “Dr. Jackson” — as in “Mr. Jackson writes” April 2, 2011 at 12:22 pm — is a dead give-away that this guy is just making up his academic background. Since his arguments are facile and silly, he’s trying to snow everyone with a phony Ph.D. I’m certain he has a Masters Degree in political philosophy, but there’s no way he’s really a Ph.D. political scientist as he claims.
Again, small point, but a telling one. Liberals lie. I guess no one should be surprised.
Let’s cut to the chase about this topic. These judges that Gestell says have ruled on certain :rights” are exactly what causes smoke to come out of the conservative’s ears. Activist judges are laying waste to the Constitution. There can be a case of settled law for 200 years and one judge can interpret one word to give it a totally different meaning and voilá, you have a new law bypassing everything. These activist type judges rule by their own standards and not the Constitution’s. I would love to see these cases ruled on by the SCOTUS and when a judge, probably an activist judge, has two cases reversed he would be up for review, a third would be an automatic expulsion from the bench. This would save needless time defending the Constitution from insane rulings by these judges. Until we get some sanity back in the courts we will always be debating what is “is”.