Balkinization: Whistling past the graveyard

Comments:

I hope for a world in which neither a state nor its constitution is something that one should "love" or "die for." That world may be long off, and in the meantime the author's hopes may make sense. But I hope that we eventually move beyond this obsession with the nation state.

# posted by

zimgunner : 3:30 PM

I thought of a comment I put up at this Blog several years ago concerning the election of Nixon in 1968. Via Google, I came up with it. It was a comment on Sandy's March 7, 2008 post "A Grumpy Observation about the limited Range of Pundits' Critiques." Here's my comment back then during the 2008 Democratic campaign:

****
Frankly (as I usually am), the MSM seems bent upon creating racial and perhaps gender tensions as Barack and Hillary go forward, egging them and their supporters on for the benefit of lousy journalism (which is of course protected by the First Amendment speech clauses).

I remember back in 1968 when Nixon won, a close friend and law school classmate expressed his concern with Nixon's win. I tried to console him by saying that Nixon's election won't ruin the country. It almost did. We knew more about Nixon back then than we knew about George W in 2000 when SCOTUS's 5-4 split put him in the Presidency. Since then we have observed George W's on-the-job training. George W has come closer to ruining this country than Nixon did. Lessons were learned from the antics of Nixon and his cohorts. Also, lessons were learned about our venture in Vietnam. But lessons are often forgotten. We have been survivors. So too George W will come to pass. But what new lessons will be learned?

I ponder this as a mugwamp, sitting on the fence with my mug on one side and my wamp on the other. The more attention we pay to Orwell's cautions, the more they seem to become self-fullfilling prophesies.
# posted by Blogger Shag from Brookline : 10:11 AM

***
I'm with Jack Balkin on this. The '60s were difficult, what with the civil rights movement and Nixon's Souther Strategy. Progressive must continue the fight, directing it against Justices when appropriate.

Recall that Billy (the Unfunny) Kristol urged the GOP to fight hard against Hillary's role on healthcare for fear that if enacted, like Social Security during the '30s, voters benefitting from healthcare would vote for Democrats. That's the same battle with ACA (aka Obamacare). Progressives cannot lose this battle. Down the road I would expect that the conservatives' will have to propose a single payor system (like Nixon's China move) as repeal of Obamacare would impact too many voters. I can imagine a Republican leader down the road (Mitt R-money?) saying that the complexities of Obamacare are too costly and a single payor system would be simpler and less costly.

Progressive movement can be two steps forward, one step back. Don't give up, Sandy, and don't be grumpy.

# posted by

Shag from Brookline : 4:03 PM

The Constitution aids and abets certain things -- see, e.g., antebellum slave policy -- but repeatedly (ditto) does not compel it (see Don Fehrenbacher's last book).

Prof. SL is in between me and Shag, but even I have seen the "status quo" changing. Gay rights is an example. Negatively, certain political events (see, e.g., "Broken Branch" and other works by two conservative voices, one somewhat less so) also show this.

The end of filibusters for executive appointments (imperfectly as that might be given other delaying tactics) suggests some limitations of the conservative approach. But, yes, such is our wont in a fashion.

I think it is a small "c"onsitutional sentiment too though and if the Constitution was written somewhat differently, it might lead to similar results. The "two senator" rule etc. does again move the possibilities some. Only so much.

Anyway, Roberts needs not to be the only one with a 'long game.'

# posted by

Joe : 4:33 PM

"(though, of course, a lot of their leaders are busy trying to suppress the electorate"

For amazingly low values of "suppress". I mean, seriously, when simply reducing the number of early voting days gets labeled, "vote suppression", you know the term has lost all meaning. When 'blue' states that have shorter or no early voting at all don't get charged with vote suppression, you know the term is nothing but a political club.

That said, don't give up on amending the Constitution, Sandy. It can still be done, it just requires amendments the public actually favors. I assume at least SOME of the changes you favor pass that hurdle?

Let's have that constitutional convention, and roll the dice.

# posted by

Brett : 5:04 PM

As to amending the Constitution via Article V, Larry Solum has a post on Richard Albert's article "Constitutional Disuse or Desuetude: The Case of Article V" that might be of interest to Brett. The article was Albert's submission as a member ot Panel VI: What are We to do About Dysfunction? at last year's BU Law School symposium on "Political Dysfunction... " Perhaps Sandy has a few comments on the article, which runs 53 pages. From the article's table of contents it is clear me, as one in attendance, that the article is much deeper than the time limits permitted at the symposium. This will keep me busy on a hot day.

# posted by

Shag from Brookline : 7:43 AM

This comment has been removed by the author.

# posted by

Joe : 9:59 AM

The appointment of judges is part of the "long game" here and an interesting book by David Danelski, "A Supreme Court Justice Is Appointed" discusses the machinations behind the appointment of Pierce Butler (a few others are touched upon as background). Are Roberts and Alito involved in judicial nominations to the degree of Taft and Van Devanter?!

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1259314

Public "favor" is more likely put into action in the long run in this way (along with the acts of elected officials, key to constitutional analysis) than something that requires two levels of supermajority.

How elected branches and society can affect the development of constitutional law is also well discussed by the books downloadable here:

http://www.acslaw.org/publications/books/keeping-faith-with-the-constitution

# posted by

Joe : 10:02 AM

Sandy:

There was, among many left progressives, though not technocratic progressives, a belief in rule by the people, thus the move toward "direct democracy" in the Western states.

Progressives have a very pragmatic view of democracy.

When voters, but not the political class or the courts, supported progressive policies, progressives were enthusiastic advocates for more direct democracy.

However, when voters turned against progressive policies over the past couple generations, progressives have increasingly turned to the unelected bureaucracy and courts to issue law by decree and, more recently, to President Obama to ignore laws of Congress which get in their way.

The Constitution most definitely needs to be reformed to reverse these anti-democratic trends.

# posted by

Bart DePalma : 1:16 PM

Thomas A. Edsall's NYTimes column "How Much Do Our Genes Influence Our Political Beliefs?" starts with this:

"It’s been a key question of American politics since at least 1968: Why do so many poor, working-class and lower-middle-class whites — many of them dependent for survival on government programs — vote for Republicans?"

While the column is interesting, it does not address the time frame of 1968. That was the year Nixon edged out Hubert Humphrey, with Nixon utilizing his Southern Strategy to counter the civil rights movement of the earlier 1960s. And the Southern Strategy continues to today in various variations. Perhaps there is a special gene that is not addressed in Edsall's column.

# posted by

Shag from Brookline : 7:45 AM

Shag:

Are you really arguing that white folks are genetically predisposed toward "traditional values?" And by inference that race controls our values?

# posted by

Bart DePalma : 9:03 AM

"Why do so many poor, working-class and lower-middle-class whites — many of them dependent for survival on government programs — vote for Republicans?""

Because Democrats offer to keep them dependent, and Republicans offer to help them escape dependency?

# posted by

Brett : 10:19 AM

Because Democrats offer to keep them dependent, and Republicans offer to help them escape dependency?
# posted by Blogger Brett : 10:19 AM

LOL It's priceless that you actually believe that crap.

# posted by

Anonymous : 10:57 AM

Off topic, there is a report about cleaning up art in Russia:

http://www.theguardian.com/world/2014/jul/01/russia-bans-swearing-arts

I note this because Prof. Levinson in the past was interested in how, e.g., the NYT was loathe to use "fuck" even when it was the subject at hand, such as a censorship issue.

# posted by

Joe : 11:08 AM

Does our CO gasbag ask for the " ... working-class and lower-middle-class whites ... " or some other category? (Do I recall correctly that our CO gasbag in the past has claimed a trace of indigenous NorthAmerican ancestry?)

As to Brett's questions, perhaps he does not understand the switch in parties in the former Confederate states resulting from Brown v. Bd. of Educ. (1954) and the Civil Rights acts of the mid 1960s. What exactly did the Nixon, Reagan, George H. W. Bush and George W. Bush Administrations do to " ... offer to help them escape dependency?"? Pull themselves up by their own bootstraps?

# posted by

Shag from Brookline : 11:13 AM

Joe's "off topic" link reminds me how much I miss George Carlin. With The Daily Show and the Colbert Report on its second week of hiatus, I'll check out Carlin's take on some of the same bad words in Russia per Putin on the Fritz.

# posted by

Shag from Brookline : 11:34 AM

John Oliver's new show has had some good stuff.

# posted by

Joe : 11:37 AM

Sandy:

I think it would be absolutely wonderful if the Forbath-Fishkin book on "the opportunity Constitution" became a best seller and structured a lot of the debate.

What on Earth is "the Anti-Oligarchy Constitution?"

Forbath-Fishkin do not propose any amendments to the Constitution.

Forbath-Fishkin suggest that equal protection of the law (government treating similarly situated people the same) instead requires the government to affirmatively redistribute wealth and promote "universal access to the middle class." However, the text of the Constitution does not require this and no American court in history has ever held this.

Forbath-Fishkin's essay takes us on a tour of the different forms of populism in American history - Jacksonian laissez faire where equality under the law was achieved by limiting government power so it would not favor the wealthy and connected to progressivism where equality of outcomes was imposed by government redistribution of wealth through taxes, the welfare state and unions. Both of these political economies were implemented through legislation and regulation, not by and often in facial violation of the Constitution.

Perhaps, Forbath-Fishkin are simply asking the courts to rubber stamp progressive legislation and regulation ala the New Deal courts.

It is almost impossible to tell from this essay.

# posted by

Bart DePalma : 3:28 PM

Keep in mind that our CO gasbag's review of "The Anti-Oligarchy Constitution" is by someone who thinks that America's greatest days were during "The Gilded Age." Jack Balkin has pointed out that this may be "The Second Gilded Age." The first "Gilded Age" had its oligarchies that became such by being subsidized. Teddy Roosevelt's Republican progressive atit-trust laws were a result of "The Gilded Age" excesses. "The Second Gilded Age"is being supported by the Roberts Court's conservatives.

Formally amending the Constitution by means of Article V is futile in this day and age. (Read Richard Albert's article on Article V.) To thwart "The Second Gilded Age," see Jack Balkin's post preceding this post.

Imagine in this day and age the mindset of anyone claiming America's best days were "The Gilded Age," long before he was born. That's our CO gasbag, who is like the snakes at Franklin Park Zoo years ago that didn't have a pit to hiss in.

# posted by

Shag from Brookline : 4:30 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 5:08 PM

Shag:

Do you realize that during the so called "Gilded Age," government made up less than 5% of GDP, the U.S. Code could be contained in a single book, and there were no appreciable regulations, progressive income tax or welfare state.

In what possible way does our current progressive and socialist political economy resemble that period?

In any case, my question stands: What exactly is "the Anti-Oligarchy Constitution?"

Do you have a clue what Forbath-Fishkin are proposing?

# posted by

Bart DePalma : 5:14 PM

I assume, based upon what are his expressed views, that our CO gasbag is aware that "The Gilded Age" followed the Reconstruction era with Jim Crow statutes in the former Confederate states, perhaps what our CO gasbag considers America's best days.

I have read the Fishkin et al article and it explores various time periods in our history. The Fishkin et al book I assume will fill in more details. Surely our CO gasbag knows what an oligarchy is. Fishkin et al provide a history of cycles. Their basic theme is that the aim of the Constitution was against oligarchies, that laissez-faire from time to time would overcome temporarily.

But back to America's good old "The Gilded Age" days venerated by our CO gasbag. Alas, our CO gasbag leaves out Jim Crow, women's suffrage and most of all inequality. And he seems to suggest that we ought to get rid of all laws and regulations since "The Gilded Age." No need for a pure food law. No need for clean water. No need for health care. No need for child labor laws. (I could go on and on.) But our CO gasbag is simply an idiot who probably survives because of regulations in his practice. Who needs regulation on DUI? Who needs regulation on Ganja?

Why did "The Gilded Age" utopia end? Then we wouldn't need so many lawyers? This was a cycle that was corrected by progressives.

# posted by

Shag from Brookline : 8:02 PM

Shag:

Oligarchy simply means that a relatively few people control a government or country, which makes it a singularly useless term because that could apply to multiple political economies.

For progressives and socialists, oligarchy is shorthand for the wealthy. Your proposition that the wealthy control the United States or its government is absurd.

Ask yourself a simple question: Is the Obama regime the government people would choose if their goal was to make money?

# posted by

Bart DePalma : 11:40 PM

Shag:

Laissez faire limited government was and still is the anti-thesis of Jim Crow and all other government racial discrimination.

In stark contrast, progressives were and still are rather enthusiastic supporters of government racial discrimination.

# posted by

Bart DePalma : 11:45 PM

Here's another doozy by our CO gasbag:

"Laissez faire limited government was and still is the anti-thesis of Jim Crow and all other government racial discrimination."

Before Jim Crow there was slavery. Didn't laissez-faire contribute to that as the slaves had no bargaining power?

Imagine, without government there would be no racial discrimination because of laissez-fair, free markets, per our CO gasbag. Of course the slaves were not free and even after the Civil War Amendments Jim Crow laws limited the freedom of former slaves and their progeny.

Imagine, our CO gasbag claims that it is the government that brings about racial discrimination. Perhaps the Court had something to do with this with Plessy v. Ferguson, until a later Court with Brown v. Bd. of Educ. came along, followed by the civil rights movement that provided the 1960s Civil Rights Act. Does our CO gasbag suggest that Brown and the Civil Rights Acts are the causes of racial discrimination? Reading between the lines of our CO gasbag, he seems to think racial discrimination did not exist before Brown in 1954. Alas, it seems that Ganja has captured our CO gasbag's historical genes in the Mile High State (of mind). Bros in CO, please note.

# posted by

Shag from Brookline : 7:48 AM

I don't know if our CO gasbag has yet to read Joey Fishkin's post subsequent to this, but kere's a key paragraph:

"In the article, Willy and I are exploring a tradition in American constitutional thought that views the American Constitution as fundamentally and structurally opposed to oligarchic concentrations of political and economic power. One of the signal moments for this constitutional tradition was the Progressive era, the fruits of which included several notable Article V Amendments, as Sandy notes. At least two of those, the income tax (the Sixteenth) and the direct election of Senators (the Seventeenth), are very deeply entwined with the anti-oligarchic tradition we are writing about. So, does that mean that Progressives favored the third type of argument over the other two? No, not at all. Many of the same people who were for these Amendments also argued that dethroning that era’s reigning oligarchs, and restoring rule by the people and economic opportunity for all, was necessary to vindicate an older set of American constitutional principles—principles that can be found either in the Declaration of Independence or in fundamental features of the Constitution itself."

# posted by

Shag from Brookline : 8:13 AM

Here's an earlier doozy from our CO gasbag:

"Do you realize that during the so called "Gilded Age," government made up less than 5% of GDP, the U.S. Code could be contained in a single book, and there were no appreciable regulations, progressive income tax or welfare state."

Imagine what America would look like today if these "The Gilded Age" cited stats had continued along the same lines, including the economy. Consider technological and other changes that took place since that had to be addressed. What would have been America's role internationally?

Our CO gasbag provides a voice from the dead touting the good old days of America that he experienced vicariously. More like a wet dream.

# posted by

Shag from Brookline : 8:47 AM

Shag from Brookline said...

Here's another doozy by our CO gasbag: "Laissez faire limited government was and still is the anti-thesis of Jim Crow and all other government racial discrimination."

Before Jim Crow there was slavery. Didn't laissez-faire contribute to that as the slaves had no bargaining power?.

My friend, you do realize that slavery and Jim Crow were both imposed and/or enforced by an oppressive government, and are thus by definition the anti-thesis of laissez faire limited government?

Imagine, our CO gasbag claims that it is the government that brings about racial discrimination. Perhaps the Court had something to do with this with Plessy v. Ferguson, until a later Court with Brown v. Bd. of Educ. came along, followed by the civil rights movement that provided the 1960s Civil Rights Act.

Plessy blessed the Jim Crow laws while Brown and the CRA reversed them. The problem was always oppressive government imposing the laws.

"Fishkin: In the article, Willy and I are exploring a tradition in American constitutional thought that views the American Constitution as fundamentally and structurally opposed to oligarchic concentrations of political and economic power. One of the signal moments for this constitutional tradition was the Progressive era, the fruits of which included several notable Article V Amendments, as Sandy notes. At least two of those, the income tax (the Sixteenth) and the direct election of Senators (the Seventeenth), are very deeply entwined with the anti-oligarchic tradition we are writing about. So, does that mean that Progressives favored the third type of argument over the other two? No, not at all. Many of the same people who were for these Amendments also argued that dethroning that era’s reigning oligarchs, and restoring rule by the people and economic opportunity for all, was necessary to vindicate an older set of American constitutional principles—principles that can be found either in the Declaration of Independence or in fundamental features of the Constitution itself."

If the Constitution was "fundamentally and structurally opposed to oligarchic concentrations of political and economic power," why then did progressives need to amend it (and later to judicially rewrite it) to implement their policies?

Pretty clearly, progressive "constitutional thought" was at odds with actual constitutional text. Indeed, early progressive leaders like Woodrow Wilson openly recognized that the Constitution was the primary obstacle to progressive government.

Which again begs the question: What exactly is "the Anti-Oligarchy Constitution?" I have yet to see a citation to a single constitutional provision or a recommendation of a new amendment.

# posted by

Bart DePalma : 9:06 AM

I went into the archives of this Blog (via Google, I confess), for a comment I made to JB's 2/2/07 post Money can't buy you love, but it might buy you science" (yes, JB permitted comments back then). This comment will serve as the foundation for my response to our CO gasbag:

*****

Perhaps the chilling effect of this debate will cool down global warming. Or is it a heated debate that will accelerate global warming?

In the Middle Ages a man came into an inn on a cold day, blowing into his hands. He was asked why he was doing that and replied, 'Why, to warm my cold hands.' Then he sat down at the dinner table with other guests and a hot bowl of soup. As he ate, he would blow on his spoon laden with soup. He was asked why he was doing that and replied, 'Why, to cool my hot soup.' The questioner then screamed, 'He must be the devil himself, he blows both hot and cold!'"
# posted by Blogger Shag from Brookline : 8:12 AM

*****

Our CO gasbag claims to be a libertarian. He thinks it is laws that create racial discrimination, suggesting perhaps a preference to anarchy rather than a government of laws. But compare this to one of our CO gasbag's responses to me:

"Plessy blessed the Jim Crow laws while Brown and the CRA reversed them. The problem was always oppressive government imposing the laws."

So our CO gasbag seems to recognize that good progressive laws ("Brown and the CRA") can reverse bad conservative laws that imposed Jim Crow and Plessy for so many years. (Yes, I'm aware of the NRA theme of good guy with a gun stopping a bad guy with a gun in making the preceding comment.)

Perhaps our CO gasbag may challenge that the former were indeed progressive. If so, I'm sure Bros in CO will note such.

Our CO gasbag still seems to claiming that "The Gilded Age" was America at its best, including because the U.S. Code was in one volume. But there was a great deal of racial discrimination back then under the laws existing at both the federal and state levels. Now we have many , many volumes of the U.S. Code in addition to even more volumes of regulations. So our CO gasbag's "concession" that "Brown and the CRA" in reversing Jim Crow and Plessy suggests that he blows both hot and cold on the need for government and laws.

Note that our CO gasbag ignored responding to this comment of mine:

"Imagine what America would look like today if these 'The Gilded Age' cited stats had continued along the same lines, including the economy. Consider technological and other changes that took place since that had to be addressed. What would have been America's role internationally?"

Perhaps "The Gilded Age" had a lot in common with the Middle Ages. Perhaps Brown and the CRA were part of America's "Age of Enlightenment."

# posted by

Shag from Brookline : 8:11 AM

Shag:

Our CO gasbag claims to be a libertarian. He thinks it is laws that create racial discrimination...

Both governments and individuals can discriminate. Your citations to slavery and Jim Crow are examples of government discrimination. Without the government refusing to recognize African Americans as people with rights, granting property rights to slaves and imposing Jim Crow, neither slavery or Jim Crow could exist.

So our CO gasbag seems to recognize that good progressive laws ("Brown and the CRA")...

Enforcing rights and the equal in equal protection of the law are a classical liberal/libertarian policies which only some progressives supported. Once again, millions of progressives actively supported Jim Crow.

Our CO gasbag still seems to claiming that "The Gilded Age" was America at its best, including because the U.S. Code was in one volume. But there was a great deal of racial discrimination back then under the laws existing at both the federal and state levels...Imagine what America would look like today if these 'The Gilded Age' cited stats had continued along the same lines, including the economy. Consider technological and other changes that took place since that had to be addressed. What would have been America's role internationally?"

Jacksonian laissez faire was limited government for favored groups. If you expand that freedom to everyone, the laissez faire was a superior political economy to our current progressive/socialist one. Our history is one long example of expanding liberty to new groups, so this is likely to have happened if laissez faire continued.

Progressives offered one policy which maintained supermajority popular support and which would be an improvement on laissez faire - social insurance for the disabled and involuntarily unemployed. Strip away or replace with market alternatives the rest of the progressive/socialist tax, regulatory and welfare state policies and you have a damn near ideal political economy.

# posted by

Bart DePalma : 2:49 PM

Bart, you've lost your fucking mind.

# posted by

Anonymous : 5:11 PM

In response to Bartbuster, one can't lose what one never had.

Yes, our CO gasbag blows both hot and cold. Why he probably thinks the Republican Party of today is the Party of Lincoln. Political changes take place over time. The "classic liberal" is not the liberal of today While there may have been differences in the past of American politics between liberals and progressives, for the most part these are today (and going back to the Warren Court) virtually synonymous. But our CO gasbag tries to separate and distinguish liberals from progressives by blowing hot and cold.

Our CO gasbag seems to credit " ... classical liberal/libertarian policies ... " for the Warren Court's Brown v. Bd. of Educ. and the Civil Rights movement/Acts that followed aimed at eliminating racial discrimination. Query: Are those the same libertarians on display at the VC, or in the nature of Rand Paul and his racist daddy? The same conservative libertarians who reviled the Warren (and early Burger) Court?

Up is down and down is up for our revisionist CO gasbag, sort of like Alice in Ganjaland.

# posted by

Shag from Brookline : 7:33 AM

Danielle Allen in her latest book examines the value and promise of political equality articulated by the Declaration of Independence in "Our Declaration: A Reading of the Declaration of Independence in Defense of Equality."

It is an intriguing read, including on the "democratic" method used in its creation and how it can be a guide at how we can govern today. The "slow reading" approach in taking it bit by bit is pretty fascinating.

http://blog.constitutioncenter.org/2014/07/video-danielle-allen-on-equality-and-the-declaration-of-independence/

The word 'democratic' is tossed around a lot and she provides a good definition which shows it is not mere majority rule but does require a special responsibility that to me is not shown by many of those who insist on certain supermajority mechanisms.

# posted by

Joe : 10:07 AM

To Joe's point on "democratic," it as well as "republicanism" are not the same as capitalism.

# posted by

Shag from Brookline : 10:14 AM

Shag:

The "classic liberal" is not the liberal of today While there may have been differences in the past of American politics between liberals and progressives, for the most part these are today (and going back to the Warren Court) virtually synonymous.

Good heavens.

Liberalism (as that term was understood traditionally here and still is overseas) and progressivism are polar opposite political economies.

Liberalism is limiting government power to maximize individual liberty and was what the Founders attempted to achieve with the Constitution.

Progressivism was originally created by Bismarck as an authoritarian regime to make the German people dependent upon the state and direct the economy to support the German war machine. This ideology migrated here at the end of the 19th century and immediately went to war with liberalism.

Progressivism is a totalitarian political economy in that there is almost no area of people's lives progressives do not believe that government cannot improve and thus progressives recognize almost no limit on government power.

Progressivism is a kissing cousin to socialism and fascism. Prior to the WWII, fascists like Mussolini were rock stars to the progressive movement. FDR's "brain trust" very openly modeled their New Deal on Hitler's Germany. Prior to the Cold War, progressives openly though the USSR was a bold experiment in human progress. Afterward, they still believed this, but became more circumspect.

# posted by

Bart DePalma : 10:44 AM

Our CO gasbag is living in the past, presumably with wet dreams of "The Gilded Age," according to him America's best days. Our CO gasbag is "Humpty-Dumpty" in Alice in Ganjaland. I can't wait until Ken Burns' new documentary on the Roosevelts, including the Progressive Teddy and the Liberal/Progressive FDR. This may bring our CO gasbag up-to-date.

# posted by

Shag from Brookline : 11:52 AM

With regard to the Declaration of Independence, I understand that Jefferson in an earlier draft had included criticism of King George and Great Britain for their roles in slavery and the slave trade involving the Colonies. Perhaps it was our CO gasbag's "classic liberals" that brought about deletion of that criticism. While the Declaration has been lauded over the years for its all men are created in attacking slavery, this deletion might suggest to originalists that the Declaration was indeed a slavery supporting document.

And I suppose it was our CO gasbag's "classic liberals" who framed, ratified the 1887-9 Constitution as a slavery supporting document.

But liberals/progressives, of today are not the same as our CO gasbag's "classic liberals" of the late 18th century. Many libertarians today claim that the Constitution as enacted was libertarian, which might put libertarians in that "classic liberals" category, perhaps not that different from many libertarians today. (Query: Do real libertarians today really, really accept whole-heartedly Brown v. Bd. of Educ.?)

Liberals/progressives will not be defined by conservatives (many of whom fear the changing demographics). Kudos to JB for his recent two (2) posts at this Blog.

# posted by

Shag from Brookline : 12:55 PM

I pushed back a bit in the past regarding the deletion when Shag brought it up, but the book offers an interesting perspective I don't recall seeing elsewhere ...

Some are upset that the DOI speaks of "all men created equal," which seems sexist. But, the deleted section also uses "men" in a fashion that covers all slaves. So, the earlier use of "men" was collective.

The author noted that she first heard this perspective from her father -- apparently, they talked a lot about the DOI around the dinner table.

# posted by

Joe : 2:49 PM

Shag from Brookline said...

With regard to the Declaration of Independence, I understand that Jefferson in an earlier draft had included criticism of King George and Great Britain for their roles in slavery and the slave trade involving the Colonies. Perhaps it was our CO gasbag's "classic liberals" that brought about deletion of that criticism.

Jefferson was a classical liberal archetype.

Classical liberals became "radical Republicans," freed the slaves and attempted to extend the guarantee of individual liberty to all people.

Do real libertarians today really, really accept whole-heartedly Brown v. Bd. of Educ.

The original Brown decision eliminating the abomination of separate but equal, yes.

# posted by

Bart DePalma : 3:22 PM

Joe, as usual an interesting point. Does the Constitution avoid the use of "man," "men," "male," "males," focusing upon "person." "citizen," but reference the masculine "he" in certain places in establishing the role of "men," etc, avoiding the DOI "collective" you referenced? (If I have time later I'll review the 1787-91 Constitution/Bill of Rights line by line, unless there is a reliable source that has done so.)

# posted by

Shag from Brookline : 3:25 PM

So our CO gasbag suggests that post-"original Brown," libertarians shifted away from the civil rights movement and the Civil Rights Acts of the 1960s?

ALERT! CO Bros, how will our CO gasbag respond?

# posted by

Shag from Brookline : 3:33 PM

Shag:

So our CO gasbag suggests that post-"original Brown," libertarians shifted away from the civil rights movement and the Civil Rights Acts of the 1960s?

No, I am suggesting that progressives abandoned their brief dalliance with individual liberty and equality under the law in Brown and moved rapidly to social engineering through forced busing and new government racial preferences and discrimination.

In the end, progressives will always try to remake the world through government force.

# posted by

Bart DePalma : 6:54 PM

Our CO gasbag's denial of my suggestion is an admission that real libertarians (like himself) opposed the civil rights movement and the 1960s Civil Rights Acts. Perhaps our CO gasbag expected that the "original" Brown would be self-executing ipso facto in undoing centuries of slavery and Jim Crow despite the reactions of the former slave states to the "original" - yes, the "original" - Brown, in addition to what followed. Our CO gasbag obviously fears the changing demographics as he once again reverts to "hysterical" revisionism.

# posted by

Shag from Brookline : 7:30 PM

Over at the Legal History Blog's Sunday Book Talk feature an audio interview (21 minutes) link is provided for talks with Ian Haney Lopez about his new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism & Wrecked the Middle Class" (Oxford University Press) (2014) focused on post-Brown v. Bd. of Educ. and the 1960s Civil Rights Acts, especially the Voting Rights Act of '64.

Query: Was George Wallace as much a real libertarian as our CO gasbag?

# posted by

Shag from Brookline : 8:37 AM

Shag:

George Wallace was a racist Democrat progressive.

A conservative Republican president who cut spending during recessions to balance the budget sent in troops to enforce the Constitution against these progressives.

When you are in a hole, it would benefit you to stop digging.

You cannot win this argument.

# posted by

Bart DePalma : 9:05 AM

Again, our CO gasbag reverts to "hysterical" revisionism. George Wallace may have bee a Democrat at an earlier date in his political career but how can our CO gasbag ignore the Dixiecrat movement in the former slave states that became a significant portion of the GOP including to this day. Yes, it was in response to the "original" Brown decision. The Tea Party is an extension on this GOP base. Both bases of the current GOP fear the changing demographics.

Apparently our CO gasbag approves of Ike's sending in the troop to back up Brown. The Bros in CO may be pleased to note this. But perhaps our CO gasbag can detail post-"original" Brown + Ike sending in the troops what he disagrees with as the civil rights movement proceeded, including the Civil Rights Acts of the 1960s.

Our CO gasbag's advice:

"When you are in a hole, it would benefit you to stop digging."

is a reminder of the hole that may have reached China that he dug during his support of the Bush/Cheney 8 years that he is still stuck in.

Were Thurmond et al who switched from Democrats to Republicans also progressives as our CO gasbag claims George Wallace was? Is the GOP base since the "original" Brown progressive? Surely our CO gasbag realizes that racism played a major role in party-switch. And Nixon's Southern Strategy continues to this day with newer coded racial appeals.

# posted by

Shag from Brookline : 9:57 AM

Shag:

No Republican representative has proposed policies of government racial discrimination, including Thurmond after he switched parties.

Government racial discrimination is solely a Democrat and largely a progressive policy.

Stop digging, my friend.

# posted by

Bart DePalma : 12:03 PM

The "Zackin, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES" book looks interesting. Levinson provided a supportive blurb. As the side panel notes, SL wrote a book regarding state constitutions.

# posted by

Joe : 12:24 PM

Our CO gasbag's:

"Government racial discrimination is solely a Democrat and largely a progressive policy."

may be in reference to the Civil Rights Acts of the 1960s, perhaps identifying post-"original" Brown matters he disagrees with. I'm sure CO Bros will be raising their eyebrows.

# posted by

Shag from Brookline : 2:35 PM

Here's a comment of mine from the Archives of this Blog on David Gans' 5/17/12 post "Brown v. Brown: The Equal Protection Clause at a Crossroads":

***
Our Dyslexic Duo, Bert and Brat, provide simple answers to complex questions. They are of the view that the Civil War Amendments resolved issues of race after decades of slavery. But they ignore the long history of what actually happened on the ground (and hanging from trees) following these Amendments. While our Dyslexic Duo does not directly attack Brown, and indirectly seems to accept Brown, all Brown did according to them was emphasize equal rights. But they then challenge the history after Brown to the present by attacking equal results as not the equivalent of equal rights. But how does one gain equal rights when in a deep hole? Does one have to climb out by oneself? Of course the Civil War Amendments do empower Congress to take steps to enforce the Amendments. But our Dyslexic Duo take the simpletonian libertarian low road: "Climb out of that deep hole by yourselves to gain your equal rights."
# posted by Blogger Shag from Brookline : 6:47 AM

***

Our CO gasbag demonstrates this simpletonian libertarian low road on this current thread, slicing and dicing down to the "original" Brown decision as acceptable but nothing thereafter (except perhaps Ike's sending in the troops to enforce the "original" Brown?). Those interested can go back into the Archives for comments on the 58th anniversary of Brown. Perhaps our CO gasbag expected the "original" Brown to be self executing in the hearts and minds of those primarily in the former slave states who fought tooth and nail for decades after the "original" Brown decision. (Note: A recent item on the Internet noted that in Mississippi 37% of whites would favor the old Confederacy.)

# posted by

Shag from Brookline : 7:58 AM

Here's a link to the 37% Mississippians:

http://www.drudge.com/news/180453/37-mississippi-repubs-would-back

via the Drudge Report.

# posted by

Shag from Brookline : 8:32 AM

So how much of the GOP base (including the Tea Party) consists of Neo-Confederacy conservatives along the lines of the Mississippi GOP 37%?

# posted by

Shag from Brookline : 9:56 AM

Shag:

Talk to yourself much?

# posted by

Bart DePalma : 9:59 AM

I understand our CO gasbag "talks to himself" on his blog.

# posted by

Shag from Brookline : 11:45 AM

This comment has been removed by the author.

# posted by

Anonymous : 1:52 PM

Anyone trying to talk to Baghdad Bart is basically talking to themself.

# posted by

Anonymous : 1:53 PM

Mark Graber's contribution to the BU Law School Symposium on "Political Dysfunction ... " titled "Belling the Partisan Cats: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order" is available via a link at Larry Solum's Legal Theory Blog with Solum's "Highly Recommended." For those encouraged by JB's "Reclaiming the Constitution," Graber's article provides important background. Graber starts off with significant references to constitutional reformers, especaily Sandy Levinson (who also participated in the Symposium at BU Law), but recognizes the problems with a constitutional convention under V. Rather, Graber discusses constitutional orders going back to the original Constitutional Convention. The historical analysis is well done, especially of the New Deal/Great Society constitutional order which he describes as politically non-ideological in comparison to the current constitutional order of ideological divide with political dysfunction.

Graber states that this current constitutional divide started in the 1970s. But in my view the seeds were planted in 1954 with the "original" Brown decision as that and the resulting civil rights movement and the 1960s Civil Rights Acts followed by Nixon's Southern Strategy (that both Reagan and George H.W. Bush utilized in not so subtle ways), as the start of ideological political parties with changing positions evidenced today, perhaps "fostered" by the election of President Obama in 2008 and his reelection in 2012.

Very few today directly challenge Brown v. Bd. of Education. But that foundational decision of the early Warren Court brought about these ideological changes such that today's Republican Party is no longer the Party of Lincoln.

The ACA plays a role in this current political dysfunction as Republicans are concerned that with its success the Democratic Party may endure for a long time as did the New Deal/Great Society with Social Security/Medicare/Medicaid/Civil Rights Acts. Graber notes in his article Billy (the unfunny) Kristol's urging during the Clinton Administration that the GOP had to fight its healthcare efforts as it would extend Democratic control if enacted.

Graber's article is one of the more interesting ones to come out of the BU Law School Symposium.

# posted by

Shag from Brookline : 7:52 AM

The first sentence of the second paragraph of my preceding comment should be clarified. It is based upon Graber's statement at page 639 of his article where he states:

"American partisan politics began to polarize during the 1970s."

While Graber mentions Jim Crow and some other references to race, I did not note any specific reference to Brown v. Bd. of Educ. But Brown indeed played a role in the polarization. We are not yet in a post-racial America. But there is a reluctance to openly discuss race. Racial code words seem to enlarge with polarization, including with the current events of Central American children at our Mexico border. Add to this the changing demographics that the Republican bases fear.

Indeed, very few directly challenge the "original" Brown, but indirectly?

# posted by

Shag from Brookline : 7:43 AM

Graber displays a delightful and necessary sense of humor with his articles and posts. Consider the beginning of the title of the article I earlier referenced:

"Belling the Partisan Cats: ... " which he elaborates on in the article.

However, The CJ Roberts VC (Vatican Conservative)-5 needs no "Belling" for the most part. When this VC votes 5-4 I hear as background music "The Bells of St. Mary" loud and clear.

Graber makes reference to elites, particularly the Justices. I became aware of C. Wright Mills' "The Power Elite" (1956) in my semi-retirement while auditing courses under a "senior" program at a local university around 2000-1. This book was eye-opening for me as I had finished up college/law school in 1954.

I was exposed as a pre-teen to the concept of "elite" via radio broadcasts of "Duffy's Tavern," which would start with a phone being answered (as best I recall) "Hello, Duffy's Tavern, where the elite meet to eat, Archie the Manager speaking, Duffy ain't here." (My friends and I would parody "the "elite meet to eat" in adolescent ways that I shall leave to the imagination.

Of course I did have an awareness of political elites in my adulthood but not to the detailed extent provided by Mills at all levels of governments. With the Internet, it seems that there has been an extension of the "elite." Graber makes the case for the Justices as elite very well. But in an earlier (1913) article by Graber, "The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial Decision Making," available via SSRN at:

http:ssrn.com/abstract=2248694

provides more detail on all kinds of elite, not just the Justices.

Graber shows his humor with this article's references to "Yo-Yos?" of decisions of the Court. Those who enjoyed reading the other article should enjoy this one as well, including its humor, including this on page 663:

"Finley Peter Dunne's Mr. Dooley articulated the most famous expression of this view when, commenting on Insular Cases. he wrote, 'no matter whether th' constitution follows th' flag or not, the supreme court follows th' illiction returns.'"

Graber well demonstrates that the Court for some time has not followed "illiction returns." Bush v. Gore is not referenced in this article. If Mr. Dunne were alive in late 2000 when Bush v. came down, he might have said "th' supreme Court provided the "illiction returns."

# posted by

Shag from Brookline : 10:32 AM

While today very few directly challenge Brown v. Bd. of Educ., the Legal History Blog has a description of John Kyle Day's book "The Southern Manifesto: Massive Resistance and the Fight to Preserve Segregation." Those like our CO gasbag who accept the "original Brown" but not much thereafter (except perhaps for Ike's military action) might understand that the "original Brown" would not be self-executing, especially in the hearts and minds of whites in the former slave states.

# posted by

Shag from Brookline : 10:48 AM

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# posted by

Cicy : 9:42 AM