Balkinization  

Wednesday, February 10, 2010

George Orwell, meet Orrin Hatch

Sandy Levinson

In an article aptly titled "Republicans Block Confirmation of Labor Lawyer" by mounting yet another filibuster--the vote was 52-33, which was obviously not enough to meet the now sacred 60-vote barrier--the Times quotes Republican Sen. Orrin Hatch's response to the possibility that the President of the United States might use his constitutional prerogative to make a recess appointment: "I sincerely hope the White House does not circumvent the will of the Senate by appointing him when the Senate is out of session." There are certainly serious arguments to be made against recess appointments, but it is truly Orwellian to say that an appointment "circumvent[s] the will of the Senate" when bullies like the current Republican phalanx in the Senate, for whom Hatch was simply a mouthpiece, are quite obviously doing whatever they can to prevent the Senate from affecting its will (which, save for treaties, convictions of impeachment, expulsions of members of the Senate, and proposal of constitutional amendments, requires only a majority vote).

I wonder what President Obama (or, for that matter, former President George W. Bush) will say the next time they talk about the American project of promoting "democracy" around the world. Would anyone point to the United States Senate as a "democratic" institution, under any plausible 21st century definition of "democracy"? Please don't both responding that the Founding Generation didn't believe in "democracy." I'm well aware of that. My question is why we should take them any more seriously on that than on the belief that many of them had that slavery was perfectly all right or, at least, was not suffiently evil that anything really had to be done about it. (Or, if one is a fan of the Founding Fathers and believes we should be bound by their particular conceptions of "republicanism," then I assume that this implies vigorous opposition to all American presidents, of both parties, who suggest that the United States should in fact be promoting "democracy" instead of 18th century "republicanism," by which, among other things, the subordination of women (along with slavery) would be perfectly fine.)



Comments:

Not the first time Hatch comes off as a sanctimonious hypocrite. He is an unpleasant fellow at times.

Not only is 60 votes sacred, you don't even need 40 to block things now. 33 will do all the same particularly with one or more senators in the majority likely unavailable for such 'minor' things.

I have defended filibusters on principle but it's like fire: if it's recklessly used by children, it's hard to do it. Some here keep on trying though. Onward!

And, when people say "democracy" these days, they mean our brand, which is a republican democracy with various limits on strict democracy. Whatever it is, the brand of party funhouse politics going on now is both not ideal nor what many Framers quite had in mind. (FWIW)
 

I think the founding fathers were, in fact, correct in their opposition to democracy. Pure, unrestricted democracy is a nasty system, whose only positive point is that it's the minority being oppressed, not the majority, which is better on a pure statistical basis.

Democracy is only desirable if severely restrained. If we forget that, and remove the restraints in the name of making our system more democratic, we will regret it.
 

Brett is so fearful of "tyranny of the majority" that he happily accepts "tyranny of the minority." What is objectionable is "tyranny" itself, of course, and there is no reason in the world to prefer minority tyranny to the majority type.

Also, I have no idea what Brett means by "unrestricted democracy." Is that a "pure" one-house parliamentary system with no constitutional limits of any kind (including institutional judicial review)? I don't advocate that, and I know of few people who do. Most Americans are "liberal democrats," which means, by definition, that there are constitutional constraints, derived from liberal political theory, on what a majority can do. But surely the majority can do something, especially if it actually takes the trouble to turn out and vote and win an election. What the Republican bullies in the Senate are trying to due, in essence, is to nullify the 2008 election.
 

Guys. It's politics. When Dems are doing it, its bad to Repubs. When Repubs are doing it, its bad to Dems. There's no tyranny here, except that of the ex-nominee's radical views on labor.
 

As a general rule, Sandy, I am far less concerned about legislation being blocked, than it being advanced. Genuine tyranny is far more a matter of things being done, than things being obstructed. As you should remember, the next time the people around you viciously refrain from acting.

In the present instance, if the members of the Democratic majority in Congress had any confidence that they actually WERE doing the people's will, they'd have no trouble brushing aside the obstacles facing them. The filibuster isn't a constitutionally hardwired feature of the Senate, and it clearly can be dispensed with any time the majority of the moment really wants to dispense with it.

But they're not prepared to go to great lengths to accomplish their goals, when they're well aware that their goals don't have all that much support. The fact that they were elected doesn't automatically mean the public is going to support anything they get it into their heads to do, and that's something most politicians understand at a gut level. The ones that forget it tend to lose elections, after all.

Should they decide to do something genuinely popular, you'll discover to your amazement they are able to accomplish it.
 

Jordan is right in one sense, "It's politics." But is there anything about which that can't be said? I.e., with regard to the Nazi takeover, "It's politics." Maoism, "It's politics," Jefferson Davis and secession, "It's politics." Jordan seems to use "politics" in a denigrating way. It's all just a cynical game. Actually, it isn't. And people die, with some regularity, over "political" disputes.
 

Sandy: Would anyone point to the United States Senate as a "democratic" institution, under any plausible 21st century definition of "democracy"?

Yes. Simply a variation which requires a democratic super majority in most cases.

Please don't both responding that the Founding Generation didn't believe in "democracy." I'm well aware of that. My question is why we should take them any more seriously on that than on the belief that many of them had that slavery was perfectly all right or, at least, was not suffiently evil that anything really had to be done about it.

If your point is that we should not support Republican government simply because the Founders chose it, I agree. Instead, measure the Founder's wisdom by measuring the success of the institution at issue.

Our republican government has presided over the historical rise of America from a few poor rebellious colonies to history's most powerful nation in a less than two centuries. No other nation with a democratic government you would prefer has been nearly as successful or as long lived.

Perhaps you measure the success of government by the expansion of government power and control. Under that measurement, our limited republican government is a failure and will be a constant source of irritation to you. However, it is arguably the inability of the Republican government to rapidly expand its power that was arguably a primary cause of the nation's success.

As to your slavery red herring, I have no problem admitting that the Founders compromise allowing continued slavery was a failure which collapsed in less than a century and was constitutionally corrected. Of course, the failure of the institution of slavery hardly means that republican government is likewise a failure any more than the success of republican government means that slavery was a success.
 

And, Jordan's wrong in that Republicans have been more hypocritical over time on this issue.
 

I doubt very many here (or anywhere, for that matter) would agree with whatever metrics Bart would use as the measure of "government effectiveness".

So let's talk metrics:

Certainly no society which believes that getting treatment for illnesses without having to go bankrupt can see the USA as having a working government at present.

I doubt anyone anywhere can respect a government which cannot control its financial oligarchs or even ameliorate their greedy excesses.

And there can't be anyone sane who thinks a government which has no mechanism for breaking deadlocks like we have in the Senate is a "working" government. They'll probably think a little better of Obama after the recess appointments, though.
 

I note that Shrub seldom said "democracy" preferring "liberty" and "freedom" and such. I don't think this was an accident. My guess is Shrub didn't want examination of exactly the sort you mention. Or to take another example, most of our voting doesn't meet international standards.
 

Sandy,

I really admire your persistence tenacity on these issues, but I'm thinking more and more that those of us who actually believe in democracy need to do a lot more than we have. I've been getting the sense that were in a situation a lot like that in 1800 with federalists and anti-federalists, only this time around the federalists are better organized than we are.

I suspect Obama is going to wake up after the fall elections, but regardless, we need to be ready for a long struggle. Including, organizing the progressive wing of the Democratic Party to support a third candidate for the Presidency in 2012 if Obama doesn't shape up. Same goes for our senators.

I still like Obama, and I'm reserving judgment until after the elections, but I'll say this much right now: If Robert Gates and the rest of the Bush gang at DoD is not replaced by 2012, I will not be supporting Barrack Obama again. further.
 

Ya, well that's why we have a (supposedly) limited democracy as opposed to the no-holds-barred Athenian variety. But slavery was nothing like a mistake, it was a deliberate political compromise and a crime against humanity. Tom Paine understood that. I've often wondered what might have happened if he'd gone into politics here instead of going to France.
 

Sandy:

Brett is so fearful of "tyranny of the majority" that he happily accepts "tyranny of the minority." What is objectionable is "tyranny" itself, of course, and there is no reason in the world to prefer minority tyranny to the majority type.

Tyranny is abusing the power of the state to impose one's will on another. Thus, while a democracy can result in a "tyranny of the majority," it should not result in a "tyranny of the minority." (See comments below for the exception to that rule).

You prefer a relatively pure representative democracy and oppose the many of the elements of our Republic which check the power of a simple majority or the "tyranny of the majority." OK. However, such checks are not "tyranny," but rather the antithesis of tyranny.

But surely the majority can do something, especially if it actually takes the trouble to turn out and vote and win an election. What the Republican bullies in the Senate are trying to due, in essence, is to nullify the 2008 election.

Ah, now we get to the nub of the matter.

Sandy, I am curious, to whom do you refer when you speak of "the majority?" Is this a majority of representatives or of the voters?

This is an important distinction where the majority party misrepresented how it intended to govern in order to get elected and whose governing policies are now almost without exception opposed by a majority or plurality of voters.

Your comment about the will of the voters in 2008 tends to suggest you believe that representatives are bound to vote the will of their constituents and you are referring to a majority of voters.

However, your complaint that the evil GOP "bullies are stopping legislation supported by a majority of representatives against the will of their constituents suggests that you are referring to a majority of representatives.

The latter arguably constitutes a true "tyranny of the minority," where a majority of representatives on behalf of a minority of the voters are abusing the power of the state to impose their will on the majority of voters.
 

Becker is no "radical."
 

Just a detail: I believe -- and I welcome correction -- that recess appointments are of very limited value because they expire when the new congress is seated next January, and an individual cannot be re-appointed (without confirmation)

I add that I was disappointed less by Sen. HAtch, of whom my expectations are limited, than by the fact that 7 Democrats took a walk on the vote. These are bad times for labor
 

The recess appointment "shall expire at the End of their next Session" ... the "next session" begins next January.

A recess appointment would end when that session ends, not at the end of the current session. There is some debate with mid-session "recess" appointments partially for this very reason -- doing it that way can have a recess appointment of nearly two years.

Byrd is ill but if seven voted, not that I would be surprised if one or more had no love for the person, the Republicans probably would have got their troops together too.

So, I'm not so sure how useful that would have been.
 

With regard to recess appointments, the strategy of the GOP here is to prevent the appointments from getting a vote. Once the appointment has been made, via a recess appointment, the GOP will attempt to make hay out of the issue, but that will resound only in the ears of those who are already dead set against anything and everything Obama does.

The rest of the country will simply see positions filled. Once the session ends and the positions become vacant, Obama can renominate the same people, pointing out that they've been doing the job for a year, and that the only reason they hadn't been approved before was that they hadn't been allowed a vote, and I doubt it will redound to the credit of the GOP if they again refuse to allow a vote.

If you look at the history of such appointments, a large number of them are approved after the fact (indicating that the blocking of the vote is simply grandstanding). The exceptions are the egregiously unqualified, such as Bolton.
 

It is intellectually lazy to argue against Republican forms of government by equating it with slavery and women not having the right to vote. The former has nothing to do with the latter two!

It is the same as trying to argue against the ideas of states rights and interposition with by stating that the Slave owners in the South and Jim Crow supporters argued the same. They are just two bad ways a good argument was soiled. The original interpositons based on the 10 amendment were against the Alien and Sedition Acts. Anyone want to go back to those?

Some of what the Founders believed was off. But lets not throw out the baby with the bath water with statements like many you made in this post. In fact, most of what they instituted was for good reasons and we repeal it to our own peril.
 

Brett stated:

"Genuine tyranny is far more a matter of things being done, than things being obstructed."

Well put!
 

More on this specific matter.
 

"Once the session ends and the positions become vacant, Obama can renominate the same people, pointing out that they've been doing the job for a year, and that the only reason they hadn't been approved before was that they hadn't been allowed a vote, and I doubt it will redound to the credit of the GOP if they again refuse to allow a vote."

If Obama doesn't dramatically improve his vetting process, recess appointments could really come back to bite him. You can't share the blame for appointing a tax cheat to run the Treasury, for instance, if you made him a recess appointment. And you don't get the benefit of the Senate double checking your vetting, either.
 

From Sandy's above thread:

The worst of all worlds, from my perspective, would be the joint combination of a major "Tea Partier" trying to initiate such a debate and the mindless response by liberals that we have a perfect Constitution that shouldn't even be discussed, let alone amended...

When I have (what I regard) as a half-way original thought, I'll certainly allow comment!


This is a fully original and very interesting thought.

The Tea Party movement shares a common theme of a return to first constitutional principles, but never really explores what it would take to get there. After all, there is a party, then a government, to take back over the next couple election cycles.

Realistically, the Tea Party would need to extensively amend the Constitution to return to first principles of limited government plus add a couple additional reforms to check the modern welfare state which the Founders never confronted. For example:

1) Expressly forbid the delegation of legislative, executive and judicial powers to another branch or bureaucracy. The bureaucracy could study and recommend regulatory legislation, but could not enact it.

2) Clarify the provision for a decalration of war to define what is a war and when the President needs to seek this permission.

3) Clarify the P&I Clause of the 14A to expressly state that states may not abridge any right guaranteed by the Federal Constitution.

4) Clarify the Commerce Clause to define interstate and commerce to limit this provision to interstate trade and nothing else.

5) Add another provision to Sec 8 Art I creating a catchall provision allowing Congress to enact legislation to regulate any interstate act, but expressly excepting any interstate act which indirectly affects interstate acts.

6) Clarify the Second Amendment to expressly protect the right of the citizenry to keep and carry weapons commonly owned the the population.

7) Amend Article III with a provision expressly granting the right of judicial review to the Courts, but expressly limiting that power to the original meaning of the text of the Constitution.

8) Add a check on judicial review to Article II, permitting the a majority of the House followed by 2/3 of the Senate to overrule a Supreme Court interpretation of the Constitution. There needs to be a democratic check on the Supreme Court, but one with a high threshold.

9) Require a 3/5 majority of both chambers of Congress or a majority vote of the People during an election for Congress to raise taxes or borrow money unless we are in a state of declared war.

10) Amend the Constitution to eliminate all entitlements to a good, service or payment by the federal government and expressly limit receipt of such goods, services and payments to the funds appropriated by Congress that year.
 

An interesting list, Bart. Regarding

6) Clarify the Second Amendment to expressly protect the right of the citizenry to keep and carry weapons commonly owned the the population.

This suffers from the same drawback as Scalia's similar language in Heller: By banning new developments in weaponry before they can be commonly owned, this permits Congress to freeze the advancement of civilian weaponry. And ratifies the current artificial nature of what's commonly owned produced by earlier bans. It would even encourage bans on weaponry we can now own, but which hasn't gotten much market penetration, such as holo-sights.

I really don't want us, by the year 2100, to be limited to the equivalent of flintlocks.

Regarding 8,

8) Add a check on judicial review to Article II, permitting the a majority of the House followed by 2/3 of the Senate to overrule a Supreme Court interpretation of the Constitution. There needs to be a democratic check on the Supreme Court, but one with a high threshold.

The SUpreme court upholds some provision of the Constitution which is popular with the states, but unpopular with federal office holders, Congress votes to over-ride, and the provision in question has now been 'repealed' without the states having any chance to refuse ratification. Doesn't strike me as a good change. It's not like the last century the Supreme court has a history of excessively overturning federal laws.

Here are a few of my own proposals:

1) Require all votes in Congress to be electronically recorded roll call votes, to put an end to the leadership's no quorum "voice" votes.

2) Expressly overturn the "enrolled bill" rule, among others, with a statement that there are NO "political issues", all Constitutional clauses are to be regarded as judiciable, and statements by office holders are not to be held dispositive where evidence is available.

3) Amend Article 7 to provide that any proposed amendment ratified by the requisit number of states with identical language shall become part of the Constitution, regardless of origin. This would remove the current ability of Congress to prevent the Constitution from being amended in ways unfavorable to the federal government. By itself, this would go a long way to redress the imbalance of power between state and federal levels of government.

4) An amendment to the effect that any Presidential nominees not brought to an up/down vote within 90 days of their nomination are automatically approved, similar to the way legislation becomes law if the President ignores it.

I'll have a few more after I've thought about it.
 

Brett et al:

Now that I have had a chance to think about the subject, here are ten proposed amendments to remedy the worst judicial constitutional revisions of our governing system since Reconstruction and to check the recent expansions of federal power unforeseen by the Founders:

1) Congress shall have the power to regulate acts between the several States, but not acts within a State.

This catchall should address the need for the federal government to regulate interstate activities not clearly addressed in Article I, but restore federalism.

2) Congress may not levy additional taxes or fees nor enter into debt except by a 3/5ths vote of both the House of Representatives and the Senate, or by a majority vote of the People during an election for Senators and Representatives, except to raise and support the military during a declared war.

This takes care of two proverbial birds with one stone - checking the growth of government while putting teeth into the declaration of war clause.

3) No person is entitled to a government service or payment under law except as funded by Congress or the legislatures of the several States.

This reverses the Due Process theory that you have an entitlement to a government service or payment even if the legislature declines to pay for it.

4) Congress shall make no law requiring a person to purchase or obtain a good or service.

This preempts recent moves in Congress to require the People to purchase goods and services preferred by the government.

5) The judicial power shall include interpretation of the law, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the text of the law as it was commonly understood by the People at the time the law was enacted.

This codifies the power of judicial interpretation with express limits on the judicial power to rewrite the law under the guise of interpretation.
 

6) Congress shall have the power to revise a judicial interpretation of this Constitution. Such revision must be introduced in the House of Representatives and be approved by a 3/5ths vote of both the House of Representatives and the Senate. Such revision thus approved is binding upon the Executive and the Judiciary.

There has been a debate since the ratification of the Constitution as to which branches have the power to interpret the Constitution. To date, the judiciary seized this power and the elected branches conceded it. However, the wholesale rewriting of the Constitution by an unelected judiciary under the guise of interpretation requires a democratic check, albeit with a high threshold.

7) Neither the Congress, the President or the Judiciary shall have the power to delegate powers granted by the Constitution to another branch of government. No executive department or agency shall exercise legislative or judicial power. All regulations which were not enacted by Congress shall be void one year after ratification of this Amendment.

The greatest danger to the democratic institutions of our Republic was the delegation of legislative and judicial power to an unelected Executive bureaucracy over the past century. This returns the federal government to its democratic first principles. The Congress will be given a year to enact none, some or all of the current regulations. All future regulations generated by the bureaucracy must be submitted to Congress to be enacted into law as legislation. This will halt attacks on our Republic like EPA blackmailing Congress to enact cap and tax or EPA will impose worse regulations by fiat.

8) No state or local government shall enact a law abridging a right or freedom guaranteed by this Constitution.

This fixes the Reconstruction Era judicial gutting of the 14th Amendment.

9) Foreign enemy belligerents at war with the United States do not enjoy any rights or freedoms under this Constitution.

This reverses the recent judicial arrogation of executive CiC powers by granting foreign enemy belligerents constitutional rights for the first time in history.

10) Persons who are not citizens do not enjoy a right to government services or payments except as provided by law.

This reverses the Warren Court insanity of granting non-citizens rights to government services and payments and forcing citizens to pay for them.

I would appreciate structural and policy critiques.
 

If the federal government is too weak to deal with a situation, which is arguably the case now, the result is not that the "market" fixes the problem. Instead, what happens is that some executive usurps unconstitutional power, with the acquiescence of the population (and the eager acceptance by the authoritarians and the oligarchs).

For example, see the recent actions of Bernanke, Bush, Cheney, etc.

Thus, Bart's proposals, if accepted, would be a recipe for executive dictatorship.

Those who cannot understand this fundamental dynamic are woefully blind to human nature. Unless, of course they think they would enjoy living in a dictatorship.
 

C. is on the money -- Republican obstructionism will in various cases lead to the Obama led executive department to have more power. And, then, Obama will be blamed by certain quarters.

This sort of thing reminds one of blaming sky gods for no rain.
 

C2H50H said...

If the federal government is too weak to deal with a situation, which is arguably the case now, the result is not that the "market" fixes the problem. Instead, what happens is that some executive usurps unconstitutional power...Thus, Bart's proposals, if accepted, would be a recipe for executive dictatorship.

How do you figure?

Amendment 7 strips the executive of its unconstitutional assumption of legislative and judicial power.

Amendments 1 & 4 restore limits on Congress' ability interfere in intra-state affairs, further limiting the Executive's enforcement power.

The executive is left with very little unilateral power over domestic affairs, which is how the office was originally designed.

Amendment 2 puts teeth in the declaration of war clause by forcing Congress to either declare war or muster a supermajority to fund a war. This checks the President's ability to unilaterally initiate any significant military action.

Indeed, the only expansions of power over the original Constitution - Amendments 1 and 6 - are both granted to Congress.

Congress was envisioned as the preeminent branch and these amendments restore that vision.
 

The "fundamental dynamic" is that you can't limit the power of government, or it ends up even more powerful????

Anyway, I think this whole "government too weak to deal with the situation" notion dismisses too easily the possibility that government, in many cases, is the source of the problem. And that you need to limit the damage it's causing, not empower it to repair the damage.
 

Bart,

Ask Brett whether it really matters what the Constitution says.

Also, wouldn't the executive's unitary powers (so often championed by yours truly) trump any of these other limitations?

I understand that a central tenet of right-libertarian (or is it "classical liberal", or "conservative", or "tea party" that you are pretending to be today?) is to ignore the way real populations and people behave, but this is too obvious to ignore: when presented with a perceived problem which cannot be solved by living within the rules, and absent some higher authority to enforce them, the rules will fold under public pressure.
 

Brett,

Absolutely, the government is often a source of problems. And huge corporations, with interest only in harvesting money from populations, are often a source of problems (see: Bhopal, or Philip-Morris). And ultra-rich and amoral individuals, like the Koch brothers (who, it turns out, were behind the inception of the "tea party" movement) are a source of problems. Plenty of us in this country don't think the Catholic Church -- or any other religious entity -- is entirely a force for good.

Heck, even the GOP hasn't always been a force for good. And movement conservatives have resisted almost all of the efforts to expand human freedom throughout history.

So I don't see "could be a problem" as grounds for hamstringing. Bart's rules would basically render the country less governable than California. Call me unconvinced that this is a good thing.

If anyone imagines that the executive won't "take the initiative" and usurp whatever power they think they can, just look at the example of Minnesota, where mild-mannered (actually, passive-aggressive) Tim Pawlenty "unalloted" state spending in a completely unprecedented (and, to at least one judge so far, unconstitutional) manner when he was trapped between the necessity to balance the state budget and his pledge to never raise taxes.
 

C2H50H said...

Ask Brett whether it really matters what the Constitution says.

See my proposed Amendment 5. If that does not work, then impeachment may be unavoidable.

Also, wouldn't the executive's unitary powers (so often championed by yours truly) trump any of these other limitations?

The unitary executive theory merely argues that Congress may not exercise executive power such as deputizing special counsels. It has nothing at all to do with the scope of executive power.
 

The "fundamental dynamic" is that you can't limit the power of government, or it ends up even more powerful????

No, the basic dynamic is that a government which is too weak will end up as a despotism because people will be frustrated by the government's inability to achieve its ends; despotism is preferable to anarchy. This is very standard within political theory and pretty much universally acknowledged.
 

Bart,

How, without a time machine, are you going to determine the original meaning of anything? And even with a time machine, why should a future lawyer or judge believe these rules mean what you say they meant when you wrote them? Maybe you changed your mind the instant after you wrote them. I can just imagine the fun this would be in a future court.

All many of your proposed rules would do is give lawyers in the cast of John Yoo more leeway to argue holes in them.

Requiring a 3/5 majority to do anything is simply giving power to the minority to prevent the government acting. If that's your goal, why not just prohibit government from doing anything?

Eliminating executive regulations (number 1) means that government will never have the flexibility to respond to rapid change. That would be fine if things such as politics, economics, finance, or technology were static.

You know, if I, a non-lawyer, can drive a truck through your constitution, imagine what a competent lawyer could do with them. Somehow I don't think they're going to get any serious consideration.
 

"How, without a time machine, are you going to determine the original meaning of anything? "

By the power of the written word to transmit meanings across time? That's what writing was invented for, after all. It serves pretty well, too, where the people doing the reading aren't adamantly determined to impose their own meaning on a document that doesn't mean what they like.
 

Brett,

OK, so what was meant by "arms" (as in "right to bear arms") by the founders? This only took 200-odd years before the current SC decided it apparently meant "individual weapons you can buy at Walmart".

What does "speech" mean? (We now know it includes "money", which might have come as a surprise to the founders.)

How about "marriage"? The "press"?

And this has been only a bit over 200 years, with extensive writings to explicate the meanings. Of course, since the meaning of the words used in the explications may have changed...

You are deluding yourself if you imagine that you and, say, Benjamin Franklin, could sit down and have easy understanding when talking about social, political, economic, or technological issues. Frankly, I'd be willing to bet a great deal that you and Bart would quickly decide that any off the founders you rubbed shoulders with were DFH's, and they would decide you were Tories.

They might agree with your ideas on race, although I wouldn't take odds on that.
 

C2H50H said...

Brett, OK, so what was meant by "arms" (as in "right to bear arms") by the founders? This only took 200-odd years before the current SC decided it apparently meant "individual weapons you can buy at Walmart".

Arms are weapons.

The prefatory clause suggest that these weapons must at minimum be suitable for use in the general militia.

The main clause guarantees a right to of the People, thus it is perfectly logical to hold that these are weapons normally owned by the people.

The guarantee includes the right to bear or carry the arms, which means that they are small arms capable of being carried by the individual who enjoys the right.

Thus, arms means small arms normally owned by the people, including those suitable for militia duty.

That wasn't so hard, was it?
 

Bart,

I find your certainty about what was meant laughable, and I suspect the vast majority of historians would agree with me.
 

That wasn't so hard, was it?

# posted by Bart DePalma : 5:20 PM


Actually, I'm going with "what a pantload".
 

where the people doing the reading aren't adamantly determined to impose their own meaning on a document that doesn't mean what they like.

# posted by Brett : 4:49 PM


Like when you wingnuts decided that "militia" = "any asshole who wants a gun"? Your view of the 2nd is as blatant an example of "imposing their own meaning" as I have ever seen.
 

Bartbuster, I'm going to reply to you, though I'm aware it's probably a mistake: The precise definition of "militia" is largely irrelevant in the case of an amendment which guarantees the relevant right to the people, not the militia. At best it's a second order consideration, which might have some bearing on the nature of the weapons the people have the right to keep and bear.

And, C2H50H, nobody really thinks money is speech. Anymore than they think ink is "press". But try to argue that a law banning the use of ink to publish on certain topics doesn't violate the right to freedom of the press. It doesn't pass the laugh test.

Why would a law prohibiting you from spending money to BUY that ink, or rent the press, be any less an infringement?
 

which might have some bearing on the nature of the weapons the people have the right to keep and bear.

# posted by Brett : 8:39 PM


The "bearing" is pretty obvious. The right to bear arms is meant for use in a militia (in modern terms, that means National Guard). It clearly was NOT meant to give any asshole the right to carry a firearm, as you wingnuts have deluded yourselves into believing.
 

Bartbuster, they could easily have written the amendment to mean what you'd prefer it to mean. All it would have taken was to omit the word "people", and replace it with "militia". They didn't.

You want that substitution, propose an amendment.
 

Brett and Bart,

I said nothing about whether the interpretation of the law now is more correct than it was for the previous century or two, so your comments, while amusing, are moot.

I understand that you'd rather argue about what the terms should mean, or ignore the fact that the meanings have changed, but that's beside the point.

My point, which remains, is that the meanings of terms change over time.

That means Bart's proposal to insist on the "original meaning" of all terms is insane.
 

Bartbuster, they could easily have written the amendment to mean what you'd prefer it to mean. All it would have taken was to omit the word "people", and replace it with "militia". They didn't.

You want that substitution, propose an amendment.

# posted by Brett : 9:05 PM


No, they could have easily written it as you believe they intended and omitted the word "militia". The word "militia" is clearly a qualifier on the use of firearms. It's not even a close call.
 

"The word "militia" is clearly a qualifier on the use of firearms. It's not even a close call."

Ah, "gun aversive dyslexia" rears it's absurd head again.

C2H50H, it's the very nature of postmodern deconstruction, that it's pointless to argue with those who embrace it. The purpose of language might be to transmit meaning, but the aim of some people to jam that transmission.
 

Ah, "gun aversive dyslexia" rears it's absurd head again.

# posted by Brett : 9:33 PM


Ah, the "reading aversion dyslexia" rears it's absurd head again.
 

Brett, I own guns. The idea that I have a constitutional right to own guns is assinine.
 

Brett,

I see you still avoid actually confronting the facts I laid out, preferring to accuse me of "postmodern deconstruction" (which is basically a meaningless slur, may I say) instead of honestly admitting that you're wrong.

All of us who were either a committee secretary -- or married -- will attest to the way perfect understanding through language is simple to achieve.

Don't worry, I'm done wasting time arguing with someone who can't be honest.
 

C2H50H said...My point, which remains, is that the meanings of terms change over time.

Not under any legitimate rule of legal interpretation.

You always start with the text of a will, a contract, a statute and a constitution.

Where the text is ambiguous, you go next to the intent of the authors of the text at the time it was written. See parol evidence, legislative intent and original intent.

We are a supposed to be a nation of laws. You can only do this when words with which laws are written have meaning.

When you say you don't need no stinking meaning, you mean you don't need no stinking law. That way leads to anarchy or dictatorship.
 

When you say you don't need no stinking meaning, you mean you don't need no stinking law. That way leads to anarchy or dictatorship.

This is quite comical coming from the likes of you. I have never encountered anyone with less respect for the meaning of words than you, Baghdad.
 

Not under any legitimate rule of legal interpretation.

I don't care what rule of legal interpretation you use; words DO change meaning (or add meanings) over time, and (synchronically) between people! It's Linguistics 101, and it doesn't even require delving into postmodernism to explain it.

The question is really whether certain concepts HAVE changed or not. "Arms" seems straightforward (to me, at least, although "bearing arms" may alter the meaning through convention), but concepts like "well-regulated" certainly never have had a single meaning to begin with.

To claim that every word has a single objective meaning and that subjectivity doesn't exist (ostensibly because postmodernism is "retarded") is ridiculous.
 

Yes, words do change meaning, and when you interpret law, you use the old meaning, because Merriam Webster might have the right to publish new editions of the dictionary, but not to change the law. A law prohibiting "wicked" behavior doesn't outlaw rad skateboard moves.

Bartbuster, I don't know that you own guns, though I have known a few gun owners who favored taking the right away, confident that they'd still get to exercise the remaining privilege. Damn fools, but we all tend to be foolish about SOMETHING, I suppose. I also know the arguments you're advancing. Which demonstrate a determination to ignore what the Second amendment actually SAYS, that the people have the right in question. Any attempt to 'interpret' "the people" as being only "the militia" is illegitimate. Only people who want the right the 2nd amendment guarantees rendered empty engage in that sort of sophistry.

Getting sort of vaguely back on topic, Sabato, in "A More Perfect Constitution: Why the Constitution Must Be Revised" argued that any constitutional convention would have to avoid touching even one word of the Bill of Rights, it's such a mine field of hot buttons. I'd say he's right.
 

Here's an entrepreneurial proposal:

Constitutional Tea Party, presenting its brand of tea bags with tags containing proposed amendments to the Constitution. As tea bags steep in hot water, tea drinkers can contemplate changes. Tea parties would permit for exchanges and discussions between drinkers of the various proposals on their respective tags (similar to sharing fortune cookie messages*). This may lead to a Constitutional Tea Party convention that will supply the necessary hot water to steep in.

*By the way, consider a promotional tie-in to Constitutional Fortune Cookies for synergy, resulting in an unconventional convention.
 

"The idea that I have a constitutional right to own guns is asinine."

You can believe that, but as general matter, Prof. Levinson some time ago disagreed with the "asinine" part, even if (to cite the title of the article) it was "embarrassing" to some people to admit it.

"words do change meaning, and when you interpret law, you use the old meaning"

This begs the question. What is "the old meaning" is the question.

Thus, the Supreme Court noted in 1908 (Weems v. U.S.):

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction

[the Commerce Clause is cited -- in 1908 -- as an example of the principle in action]

What is the 'original' meaning of constitutional terms? Were they purposely written in terms so easily (however "wrongful") flexible over time because it was originally understood that the specific meaning would not be fixed?

Why is it deemed unjust to assume Clarence Thomas could not marry his current wife? In 1883, the great Justice Harlan (dissenter in Plessy) joined in the upholding of a miscegenation law.

We are mighty selective in our "original" understandings. I repeatedly have asked Brett for a judge of when the Constitution was interpreted correctly, so I could determine how to do so. Clearly the 1930s won't work since the New Deal was upheld. Maybe 1908 is also wrong.

But that principle, one that recognized a "common law" development of constitutional terms, was always with us to some degree. The revolutionaries of 1776 becried violations of the Magna Charta. They didn't just try to find how King John understood it when not worrying about Robin Hood and Maid Marian.

The latter two are myths. So, I might add -- no matter how religiously we honor it -- is the clarity of constitutional meaning.
 

This comment has been removed by the author.
 

Via an error in posting, I did not change something: the ruling was in 1910.

Also, as to the miscegenation ruling, it was quite reasonably unanimously deemed what "equal protection" was originally understood to mean.

But, as Brown v. Bd. of Education noted, we must deal with the "present place in American life throughout the Nation" when interpreting that provision.

One more thing. More germane to the original post. The Declaration of Independence notes that the government is in place to protect our rights. The Constitution was established to serve that purpose, setting up an republican form of government to govern via the vote of those the people (the "electors") choose to do the job.

Brett in effect thinks government is dangerous to our rights. This is not quite the mentality behind the Constitution he deems our responsibility to follow.
 

"Brett in effect thinks government is dangerous to our rights. This is not quite the mentality behind the Constitution he deems our responsibility to follow."

Actually, it is.

'Government is not reason nor eloquence. It is force. And like fire, it is a dangerous servant, and a fearsome master.' --George Washington

Government is very dangerous to our rights. It is, also, regretably necessary. But you don't dare pretend it isn't a threat.
 

Any attempt to 'interpret' "the people" as being only "the militia" is illegitimate. Only people who want the right the 2nd amendment guarantees rendered empty engage in that sort of sophistry.

# posted by Brett : 6:53 AM


No, any attempt to ignore the obvious militia qualifier is illegitimate. Only people who want to ignore what the Constitution actually says engage in that sort of sophistry.

This game is fun.
 

Do you have the source and context of that quote? I did a search and found it cited a lot, but the actual original context was not provided.

And, yes, I don't pretend fire isn't a threat either. It still is often quite useful as compared to the alternative. So, preventing me from turning on the stove is often not a good thing.

---

* GW actually thought more government was necessary to "serve" us than let's say Madison, both of whom thought government was not just force but also based on some reason ("law" not just "men"), so the quote is of particular small value to me.
 

"Bart" DePalma:

Where the text is ambiguous, you go next to the intent of the authors of the text at the time it was written. See parol evidence, legislative intent and original intent.

Which explains why the Eleventh Amendment (according to conservatives) prohibits precisely what it explicitly leaves out.

Cheers,
 

"No, any attempt to ignore the obvious militia qualifier is illegitimate."

But I don't ignore it: It's weapons suitable for militia use that the amendment guarantees the people the right to keep and bear. Thus facilitating raising a militia, by assuring a population suitably armed, and familiar with those arms.

You don't draft a bill of rights out of trust in the government, it's an expression of distrust. In this case, the distrust had to do with whether the government would seek to discontinue the militia system, and render raising a militia impossible by disarming the populace.

After all, a well regulated militia might be necessary to the security of a free state, but are the people running the state in question guaranteed to WANT it to be free? Nope.
 

Joe said...

"words do change meaning, and when you interpret law, you use the old meaning"

This begs the question. What is "the old meaning" is the question. Thus, the Supreme Court noted in 1908 (Weems v. U.S.): "Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction."


The Weems court did not claim that they could not determine the original meaning, but rather that they thought to do so was bad policy and that they had a duty to rewrite the Constitution.

What is the 'original' meaning of constitutional terms? Were they purposely written in terms so easily (however "wrongful") flexible over time because it was originally understood that the specific meaning would not be fixed?

That is determined by the terms used. A right of the people to keep and bear arms is definitive. "Due process" is an invitation to the courts to fill in the procedural blanks. In both cases, the text determines the scope of judicial discretion.

Why is it deemed unjust to assume Clarence Thomas could not marry his current wife? In 1883, the great Justice Harlan (dissenter in Plessy) joined in the upholding of a miscegenation law.

Perfect example of why the left should beware the idea of a living Constitution. If the Plessy court had followed the plain meaning of the term "equal," a great deal of grief would have been avoided.

But, as Brown v. Bd. of Education noted, we must deal with the "present place in American life throughout the Nation" when interpreting that provision.

Like they did in Plessy?

I repeatedly have asked Brett for a judge of when the Constitution was interpreted correctly, so I could determine how to do so.

Which provision? There was never a case properly defining the entire Constitution.

But that principle, one that recognized a "common law" development of constitutional terms, was always with us to some degree. The revolutionaries of 1776 becried violations of the Magna Charta.

The US implicitly rejected the British common law constitutional model by adopting a written Constitution and then a written Bill of Rights.

Brett in effect thinks government is dangerous to our rights. This is not quite the mentality behind the Constitution he deems our responsibility to follow.

You are kidding, right? No one trusted an unfettered central government. The great debate over the Constitution was whether to merely strictly limit the Federal government with checks and balances and a reservation of all unenumerated powers to the states or to geld it completely like the later Confederacy. The Federalist Papers spent most of their time discussing how the government would be checked so we would never have another monarchy. The Bill of Rights were demanded because the states did not trust the federal government to observe unwritten rights.
 

But I don't ignore it: It's weapons suitable for militia use that the amendment guarantees the people the right to keep and bear.

# posted by Brett : 12:22 PM


Are there any weapons that you consider unfit for militia use?
 

"Are there any weapons that you consider unfit for militia use?"

Pretty much any weapon Congress deems suitable for the average foot soldier to carry, is by definition suitable for militia use. I might have personal opinions on the matter, but they're of no constitutional significance.
 

Pretty much any weapon Congress deems suitable for the average foot soldier to carry, is by definition suitable for militia use.

# posted by Brett : 12:44 PM


So you'd favor the banning of virtually every type of handgun?

And do you really think the Founders intended for people to own automatic weapons?
 

BB:

The prefatory militia clause is not grammatically limiting. It merely addresses one reason for the right set forth in the main clause. Freedom of speech provisions in some state constitutions have the same format and mention the importance of political speech in the prefatory clause, but the right to free speech guaranteed by those provisions has never been limited to political speech.

Thus, the proper analysis if the militia clause is that the term arms must at minimum reach those weapons normally carried by the militia. This is the strongest argument for the inclusion of automatic rifles. The textual counter argument is that automatic rifles are not the type normally owned by the People. The argument in favor of automatic rifles is the superior textual argument because this is the standard small arm of the militia.

BTW, handguns are standard militia arms as well.
 

BTW, handguns are standard militia arms as well.

# posted by Bart DePalma : 2:04 PM


You need to learn how to read.
 

If a Constitutional Convention were to be called, I would suspect that after so many years and so much controversy such a Convention would address a top to bottom review. Perhaps such a Convention might emulate the National Conference of Commissioners on Uniform State Laws. Perhaps our "dyslexsick" constitutional experts Brat and Bert could serve as commissioners to make sure that originalism is properly incorporated in the results of such a Convention to give life to the dead hands of the founders/framers/ratifiers, to make sure that their concept of small government for a then nation of just under 4 million when the Industrial Revolution was in its infancy could carry over for its current population of over 300 million with America's currently expanding high tech revolution in a much more complicated world.
 

Freedom of speech provisions in some state constitutions

We're not talking about state constitutions.
 

shag:

...to make sure that their concept of small government for a then nation of just under 4 million when the Industrial Revolution was in its infancy could carry over for its current population of over 300 million with America's currently expanding high tech revolution in a much more complicated world.

The more complex the world, the less likely that socialist attempts to run it will succeed. Thus, limited government becomes ever more important. Better to leave it to the experts - the People.
 

The more complex the world, the less likely that socialist attempts to run it will succeed.

# posted by Bart DePalma : 3:30 PM


According to you? Why should anyone listen to an idiot like you?
 

"weapons suitable for being carried by the national guard" -- yup, like the AA12, the M16 with M203, and my personal favorite, the M10 machine pistol with suppressor.

According to both Brett's and Bart's theories of what the 2nd amendment means, we should be able to not only own these weapons but also to "bear" them, which, since gun safes were not in common use in 1800, meant "carry them around with us everywhere".

Of course, it was also the rule, back then, that "the people" (meaning wealthy white landowners) often bought their own "arms" and could then "bear" any arms they could afford, we would logically, according to their theory, have to allow cars fitted with chain guns, hellfire missiles, and, since criminals could very well own or rent aircraft, they would be able to have SAM launchers on their SUV's.

The wording doesn't preclude this, the meaning in the day would clearly have allowed it, so, according to B&B, it's a done deal. Of course, after a few people start "bearing" arms like these, I foresee a serious arms race, ending in what, tactical nukes?
 

A challenge:

rectify:
"The more complex the world, the less likely that socialist attempts to run it will succeed."


with


"We are a supposed to be a nation of laws. You can only do this when words with which laws are written have meaning.

When you say you don't need no stinking meaning, you mean you don't need no stinking law. That way leads to anarchy or dictatorship."


Gotta love the passionate defense of maintaining and respecting the established meanings of words so they do not get interpreted into meaninglessness by someone who will throw around "socialist" to describe any policy he disagrees with. I really have missed this - it's always such joy to read the comments!
 

This:

"The more complex the world, the less likely that socialist attempts to run it will succeed. Thus, limited government becomes ever more important. Better to leave it to the experts - the People."

is our yodeler's version of "Give Me The Simple Life," perhaps the theme of the Tea Party movement. At least the intellect fits.
 

Not sure how, except to the degree BP disagrees with the result, how the Weems Court wanted to re-write the Constitution. Difference of opinion is not the same thing as bad faith.

After all, we don't have to take what the text specifically meant to the original community that drafted/ratified it, as the miscegenation example shows.

OTOH, not sure how this shows the perils of "living" constitutionalism. Courts then and now say they are interpreting the meaning of the text. Overall, in many ways, the current understanding is better for liberals.

[I don't accept "living constitutionalism" here with all the baggage that slogan brings for the purposes of this post.]

Yes, we had to interpret the specific meaning of the 14A at Plessy as it was understood then too. Not being soothsayers, we can only live the Constitution to the best of our abilities now, even if we will understand things better in the future. Of course, some then understood segregation in the case was wrong.

My reply was to Brett; Brett repeatedly has noted how the Court has interpreted the Constitution as a whole (yeah, you are right, sorta need to be more nuanced than that) badly after the New Deal. So, I wondered when they did it right. If they never did it right -- he never answered me -- that's okay as his opinion too.

Saying the text solves the interpretation problem as you spelled out is question begging too. But, we can't just do that really, since we need to understand "implications" that go beyond the specific text. See, I guess, Arne's 11A citation.

As to "implication" as to common law ... the Brits had written rights too. The Magna Charta is written down. The Framers repeatedly discussed how British and other practice helps us understand what the components of eh Constitution mean.

But, "just say so" implications IS part of the problem here. Adding words helps here. Thus:

"No one trusted an unfettered central government."

This not being the point (many DID OTOH up to a point trust "government" ... the very point of the Constitutional Convention being to form a more perfect one), this is not really helpful.

For instance, a major point of the BOR was the felt belief that a written list of rights would be useful when governmental actors known as courts looked at them and determined if someone's rights were being violated.

OTOH, if the Senate blocks nominations to fill them, this job is that much harder. Or, some other governmental job whose purpose is to help protect a "more perfect Union."

More complicated than unsourced slogans, but hey, it's life.
 

C2H5OH, your argument that allowing Americans, in Tenche Coxe's words, every terrible implement of the soldier, would be bad policy, isn't a bad argument that the 2nd amendment doesn't mean that.

It's no kind of argument, at all. It's completely irrelevant to the question.

It's in the nature of documents, that they can mean things you don't like. It's inherent in honest interpretation, that you will sometimes find documents mean something you don't like. It would be totally freakish if a 200 year old Constitution always meant something that was good policy today.

The question isn't whether the Constitution is sometimes going to mean things that are bad policy. It means some things that *I* think are bad policy. And there's nothing it COULD mean, that somebody wouldn't think was bad policy.

The moment somebody starts talking to me about whether a given interpretation of the Constitution would be good policy, they lose me completely. Because that's not the sort of thing you'd even bother to bring up, if you're committed to honestly interpreting it, I know you've left the realm of argument, and entered the realm of sophistry.

When you find the highest law of the land means something you think is bad policy, there are two sets of choices that confront you:

1. Do you obey the highest law of the land, or violate it?

2. Do you amend the highest law of the land, or lie about it's meaning?

I don't particularly respect the latter options, and they have some remarkably serious drawbacks their proponents are rarely willing to acknowlege: They require institutionalized dishonesty in the legal system to pull off, and once you are doing them, where do you stop?

But that is the road our nation went down, and it's the source of much that ails us. And even if we were to have a constitutional convention, and produce the definatively perfect constitution, it almost guarantees that the effort would be for naught.

Because what's the point in crafting a good constitution, if it's going to be violated and lied about by the government?
 

Surely a Constitutional Convention, if convened, would have to consider a provision for constitutional interpretation. A forest of trees and Internet space will be absorbed by the recent San Diego conference of constitutional scholars that has addressed distinctions between constitutional interpretation and constitutional construction. Larry Solum has a current post at his Legal Theory Blog on such distinctions. Perhaps somehow the various views presented and 'discoursed" at - and after - the conference may at some point be distilled into proposals that might be considered at a Constitutional Convention for:

Interpretation, and

Construction

of the Constitution in an effort to resolve controversies since Ed Meese's original intent for interpreting the Constitution to which more recently there has been added the controversy of the role of construction (if interpretation fails).

But the distilling process may be intoxicating.
 

Brett,

You don't seem to understand that I was not arguing pro or con the interpretations. I was merely pointing out the consequences of idiotically literal interpretation of an ancient document as a guide to current policy.

I see that you finally admit, at last, by implication, that the Constitution may no longer be meaningful in modern situations.

You don't believe that literal interpretation of the Bible is a worthwhile guide to life, science, and the universe today, do you? Scratch that, perhaps you do.

What you still don't get, even with all the explanation, is that "arms", "bear", and many of the rest of the very words used in that ancient document no longer have the meaning they once did -- and that's a major source of the lack of relevance of some of the articles. Or perhaps you do, but refuse to admit it, since you apparently cannot admit that you've lost an argument.
 

nerpzillicus said...

A challenge:

rectify:

"The more complex the world, the less likely that socialist attempts to run it will succeed."

with

"We are a supposed to be a nation of laws. You can only do this when words with which laws are written have meaning.

When you say you don't need no stinking meaning, you mean you don't need no stinking law. That way leads to anarchy or dictatorship."

Gotta love the passionate defense of maintaining and respecting the established meanings of words so they do not get interpreted into meaninglessness by someone who will throw around "socialist" to describe any policy he disagrees with.


You may notice that my first cited comment does not call any particular policy socialist. Generic socialism is government direction of the economy to redistribute wealth from those who create it to those the government favors. My unremarkable observation was that socialist direction of the economy becomes more difficult the more complex the economy.
 

I've lost track. To what does "that's a major source of the lack of relevance of some of the articles" refer?
 

Welcome back, Nerp!

You are going to need a sharper clue-stick to pierce the bubble of hypocrisy surrounding Bart.

Arguing for the constancy of meaning of words while completely re-defining the term socialism in the same breath, as it were.

That displays less self-awareness than Humpty-Dumpty did, astounding as that may seem.
 

Joe,

I assume you are referring to my comment, in which case (and forgive me for the muddiness of my language -- my native language is mathematics, and English is just so unwieldy) it means the change in the meanings of the words over time.
 

Thanks, C2H50H.

As I understand it, there is not a "lack of relevance" even as the meaning of the words develop over time. The relevance is just in various ways of a different sort.

My .02.

As to Brett's Washington quote, I can't find a source. David Boaz at Cato notes:

"Quotations from respected sources, such as the Founders and Tocqueville and Churchill, are often apocryphal. George Washington apparently didn’t say, “Government is not reason, it is not eloquence — it is force! Like fire, it is a dangerous servant and a fearsome master.” Jefferson, alas, doesn’t seem to have said, “That government is best that governs least,” though he certainly believed it. A tip: If you find the quote on the Internet without any source given other than the alleged speaker, then he probably didn’t say it.

So, if anyone knows the source (Wikiquotes notes a 20th Century socialist might be the first one to "quote" it), it would be appreciated. And, happy Mardi Gras!
 

Mr. DePalma,

I don't know, maybe something like this:


Shag from Brookline said...

Witness the financial and banking crises under Bush/Cheney.

Sorry Sandy, but I am briefly going off topic.

I am writing a book about Mr. Obama's rather successful efforts to socialize the banks, the auto industry and perhaps health care (I am still waiting to see what emerges there).

I just finished the chapter on the irony of the failure of the government to socialize home ownership led to the mortgage meltdown and recession that opened the door for the election of our first socialist President.

Your crack repeating the common wisdom on the left that a lack of bank regulation caused the mortgage mess gave me a chuckle given that it was in fact Fed and HUD regulations ordering mortgage lenders, Freddie and Fannie to adopt "flexible underwriting standards" that led to mass mortgage defaults.

Here are some of the low lights of this regulatory disaster:

> In 1993, the Boston Fed published a manual for mortgage lenders providing point by point instructions on how they were to gut their underwriting standards to meet Community Reinvestment Act (CRA) targets and kindly reminded the banks that failure to follow these suggestions could lead to civil suits with punitive damages.

> In 1993, Congress enacted legislation providing HUD with the power to create regulations compelling Fannie and Feddie to meet equal housing goals.

> A couple years later, HUD first suggested and then ordered Fannie and Freddie to purchase enough CRA junk mortgages to make them 50% of their portfolios.

> To ensure that Fannie did not resist the Hud regs, Clintonistas Frankling Raines and Jamie Gorelick were put in charge of Fannie. (Why does Gorelick's name pop up during every disaster of this era?) Both made a killing buying up these junk mortgages before fleeing under an accounting scandal.

> In 2003, the Boston Fed governor who issued the manual gutting lending standards took over Freddie, where he ignored repeated warnings by his risk manager that the CRA junk mortgages were compromising the company and the country and went on to pocket over $20 million buying up this trash before he was fired during the 2008 nationalization of Freddie and Fannie.

> Fannie and Freddie's model bank that they held out as an example for others to follow was none other than Countrywide.

Socialism American style. I can hardly wait to see how it works with GM and Chrysler.
# posted by Blogger Bart DePalma : 6:13 PM

http://balkin.blogspot.com/2009/06/another-call-for-constitutional.html

Factual errors aside (like the CRA had nothing to do with sub-prime mortgages, and Fannie and Freddie were actually late in the game on securitized risk, but that's to be expected...), you can see why I have trouble believing your loyalty to upholding the meaning of words when "socialism" can mean, literally, everything and anything.

As I said, I love the comments!
 

Nerp:

I completed that chapter in my book a couple months ago. I am not going to repost all 12 pages here. You will have to wait for the book. However, here are a selection of endnotes.

Of note, my original post came early in my research and is incomplete. I later learned that the Clinton DoJ and HUD coercion on mortgage lenders to make CRA junk loans was far more extensive than I originally believed. They were actively coordinating with ACORN and other "social justice" groups to make home ownership a right regardless of ability to pay. Also, the foreclosures during the mortgage meltdown are very disproportionately concentrated in minority and immigrant communities who received the CRA subprime mortgages.

Educate yourself before you spout off again.

Peter Schweizer, Architects of Ruin (Harper Collins 2009).

http://www.federalreserve.gov/newsevents/speech/Bernanke20070330a.htm

Steven Malanga, “ACORN Squash,” Wall Street Journal (August 26, 2006).

CRA mortgage posted on ACORN website. Stan Liebowitz, “The Real Scandal,” New York Post (February 5, 2008) http://www.nypost.com/seven/02052008/postopinion/opedcolumnists/the_real_scandal_243911.htm

Sol Stern, ACORN’s Nutty Regime for Cities,” City Journal (Spring 2003).

Stan J. Liebowitz, “Anotomy of a Train Wreck: Causes of the Mortgage Meltdown,” Independent Policy Report p. 6-7 (October 3, 2008). http://www.independent.org/publications/policy_reports/detail.asp?type=full&id=30

Paulette Thomas, “Boston Fed Finds Racial Discrimination in Mortgage Lending Is Still Widespread,” Wall Street Journal (October 9, 1992).

“Closing the Gap: A Guide to Equal Opportunity Lending,” Boston Federal Reserve (1993). http://www.bos.frb.org/commdev/commaff/closingt.pdf

Angela D. Chatman, “Fair Housing Optimism Is Infectious at Summit,” Cleveland Plain Dealer (January 30, 1994).

Carol D. Leonnig, “How HUD Mortgage Policy Fed The Crisis,” Washington Post (June 10, 2008). http://www.washingtonpost.com/wp-dyn/content/article/2008/06/09/AR2008060902626.html

Natasha Shulman, “Reaching the Immigrant Market: Creating Home Ownership Opportunities for New Americans,” p. 56 Institute for the Study of International Migration, Georgetown University 2003.

Steven A. Holmes, “Fannie Mae Eases Credit To Aid Mortgage Lending,” New York Times (September 30, 1999). http://www.nytimes.com/1999/09/30/business/fannie-mae-eases-credit-to-aid-mortgage-lending.html?pagewanted=print

“Fannie Mae’s Targeted Community Reinvestment Act Loan Volume Passes $10 Billion Mark,” Business Wire (May 7, 2001). http://findarticles.com/p/articles/mi_m0EIN/is_2001_May_7/ai_74223918/

“OFHEO to Sue Former Fannie Execs,” WebCPA.com (November 27, 2006). http://www.webcpa.com/news/22660-1.html

Charles Duhigg, “At Freddie Mac, Chief Discarded Warning Signs,” New York Times (August 5, 2008). http://www.nytimes.com/2008/08/05/business/05freddie.html?_r=2&pagewanted=1&th&emc=th

Jesse Jackson and Jesse Jackson, Jr., It’s About the Money (Three Rivers Press 1999).

National Community Reinvestment Coalition, “CRA Commitments” report p.8 (September 2007). http://www.community-wealth.org/_pdfs/articles-publications/cdfis/report-silver-brown.pdf
CIA World Fact Book.

http://www.irrationalexuberance.com/ This site offers updated information relating to the book “Irrational Exuberance” by Robert J. Shiller.

Kristopher S, Gerardi and Paul S. Willen, “Subprime Mortgages, Foreclosures and Unrban Neighborhoods,” Federal Reserve Bank of Boston, Public Discussion Papers, no. 08-6.

Rakesh Kochhar, Ana Gonzalez-Barrera and Daniel Dockterman, “Through Boom and Bust: Minorities, Immigrants and Home Ownership,” Pew Hispanic Research Center, May 12, 2009. http://pewhispanic.org/reports/report.php?ReportID=109

 

In my comment above I have a copy-and-paste error to the merriam-webster on-line dictionary definition of "socialism".

--- I'd hate to have someone think I didn't know how to embed a link in a comment. That would be just so embarrassing...

Speaking of which, I estimate that the estimable Bart has given us hundreds of pages of stuff to read, most of which (the non-WSJ part) doesn't actually support his thesis but is included entirely for the purpose of quote-mining.

Personally, I find Matt Taibbi's elucidation of the issues a lot more believable -- but then, I wasn't just looking for confirmation of my bias.
 

Mr. DePalma,

First – kudos on the defense about the misuse of the word “socialism” - nailed me there.

Second, Are we really going back to the CRA? How many times must your theory be debunked?

But, I haven't done it in a while, so it'll be a fun jaunt down memory lane. I have begun looking at the sources you cite, but I can tell already I need to warn you about “correlation is not causation.” All your evidence shows is that lending under CRA went up during the boom years. In fact, with reference to “Through Boom and Bust: Minorities, Immigrants and Home Ownership,” Pew Hispanic Research Center, guess what it says – white homeownership went up, too! Guess they were responsible, eh? And lending to Asians went up most of all – it has to be racial! From 1996 to the peaks, white homeownership went up 5.6%, black homeownership 7.5%, hispanic homeownership 7.7%, and Asian 11.7%! (And the white 5.6% > black 7.5% by absolute number of owners). However, from the peaks to the latest numbers in the report, white homeownership dropped 1.2%, black 1.9%, hispanic 0.9%, and Asian 1.7% (scarily meaning hispanics actually borrowed more wisely, and were less risky, than whites. Spooooky!)

You are not looking to see if the CRA loans ARE the bad loans. There's nothing inherently wrong with more lending by CRA compliant institutions unless the lending was to less qualified people. We've been through this before. CRA lending went up, but those weren't the bad loans. The sub-prime loans, the vast majority of which were issued by originators not subject to the CRA, are the problem. Many of those loans went to minorities, but not because the government forced those originators to do it. Instead, it was because those less-than-scrupulous originators not subject to the CRA were looking for people to exploit when they knew they could sell the bad paper they were creating upstream. For instance, see Sheila Bair -

I think we can agree that a complex interplay of risky behaviors by lenders, borrowers, and investors led to the current financial storm. To be sure, there's plenty of blame to go around. However, I want to give you my verdict on CRA: NOT guilty.

Point of fact: Only about one-in-four higher-priced first mortgage loans were made by CRA-covered banks during the hey-day years of subprime mortgage lending (2004-2006). The rest were made by private independent mortgage companies and large bank affiliates not covered by CRA rules.

You've heard the line of attack: The government told banks they had to make loans to people who were bad credit risks, and who could not afford to repay, just to prove that they were making loans to low- and moderate-income people.

Let me ask you: where in the CRA does it say: make loans to people who can't afford to repay? No-where! And the fact is, the lending practices that are causing problems today were driven by a desire for market share and revenue growth ... pure and simple.

http://www.fdic.gov/news/news/speeches/archives/2008/chairman/spdec1708.html

Also check out the Traiger & Hinckley reports re relative default, application acceptance rates between LMI (Low and Moderate Income) borrowers and MUI (middle and upper income) borrowers as the credit crunch began. Very little fall off for the LMI's, big drop for MUI – this had to do with over inflated home prices, not CRA.
 

Loans were given to people unqualified to pay them back – undoubtedly black, white, brown and everybody else. This was because the originators, due to securitization, did not care if the loans would be paid back, they only cared about making the origination fee. Greedy bankers, who thought they had eliminated risk through clever packaging bought them up without reservations. Then they bought phantom comfort in CDS from AIG, and we all know where the money comes from at that point. Those are the facts. There is simply no causation from CRA.

In the end, the whole thing boils down to people thinking home prices wouldn't fall, and even if they did, AIG has a credit default swap for that. Period. That's your cause. Nothing political, not Bush's fault, not the CRA's. Too much faith in magical financial instruments and mathematical models.

You simply want to blame the government for the failures of the market. Facts be damned.

I would suggest you do further fact checking before you publish your book, but based on your history - you won't; and based on your presumptive audience - well, they ain't the type to care about “facts,” anyway. So good luck on the NY Times bestsellers list. You've got at least one thing going for you - along with Hogwarts, Bella and Edward, and Glen Beck, the one thing America can never get enough of is alternate realities to escape to.
 

Nice breakdown, Nerp. I'd add that the executive branch has been very keen on promoting "ownership society" for a very long time, regardless of party.
 

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