Balkinization  

Tuesday, February 09, 2016

Bernie Sanders' continuing obtuseness

Sandy Levinson

First, just to clear something up.  I have been accused of "hating" the U.S Constitution.  I do not.  There are some attractive things in it, beginning, most importantly, with the Preamble, which is inspiring in setting out the point of our constitutional order.  I'd also include some of the features "below the fold."  Obviously, I think there is also a lot to criticize in the Constitution, which is why I continue to advocate a new constitutional convention.  And, of course, I'm more than happy to wrap myself in the mantle of the Founders, especially the Publius of Federalists 1 and 14, who emphasized our ability to engage in "reflection and choice," based on the "lessons of experience," as to how we should be governed.

What has turned me into something of a crank is not my dislike of the Constitution, per se but, rather, the inexplicable wilful refusal to assess it, in any serious way, that is typical of even the elite punditry and almost all of those running for political office.  A refreshing counter-example is Texas Governor Greg Abbott, who has notably called for a new constitutional convention to consider nine separate amendments that he christens the "Texas Plan."  His suggestions are generally (no not completely) terrible, but that is almost beside the point.  He deserves great credit for putting the adequacy of the Constitution on the table as something seriously to discuss.

As one can tell from the subject heading, though, my ire is directed at Bernie Sanders, the ostensibly "revolutionary" candidate who is making all sorts of promises that cannot possibly be carried through in our present political system, operating under the 1787 Constitution, unless one truly believes in magic.

So why does Sen. Sanders, whom I admire and have contributed to (in his campaigns for the Senate) display the obtuseness I identify with inside-the-Beltway pundits who are more than willing to denounce given individuals, but pull back from engaging in genuinely systematic analysis?  It has occurred to me that one possibility is that the Senator from Vermont would have to address the embarrassing fact that one of the most indefensible features of our Constitution is the decision, made under threat of walking out by Delaware and other small states, to award equal voting power to all states in the Senate.  I happen to like the Vermont senatorial delegation of Sanders and Leahy more than any other dynamic duo, and I probably like the Texas duo of Cornyn and Cruz (who would bring down any rating on his own) least of all.  But there is really no justification for Vermont having the same number of votes as Texas. Vermont in 2014 had a population of of roughly 650,000 people; Texas is approaching 27 million people.  This, of course, is not the most extreme disparity; that's reserved for Wyoming and California.

If one wants to talk about how the "game is rigged," one could do worse than begin with the U.S. Senate, whose equal-vote rule helps to explain why we have a terrible agricultural policy (including subsidies for the dairy industry that I am certain that Sen. Sanders has voted for) and why, in addition, we are unlikely ever to get a cogent energy policy, given the excessive voting power of senators from coal-producing states.  As I've said many times before, but never tire of repeating, James Madison was absolutely right when he described  the allocation of voting power in the Senate as an "evil," even if, as with the compromise over slavery, it was arguably in 1787 a "lesser evil" to having no constitution at all.  We did get rid of slavery, at least as a formal institution (at the cost of 750,000 lives).  Alas, we're still stuck with the Senate.

Perhaps Sen. Sanders recognizes that he could scarcely embark on a serious discussion of the Senate without challenging the legitimacy of his own excessive power in that institution.  But, honestly, who knows.  The only thing we can know with certainty is that he is deluding his impressionable supporters to believe that the very act of electing him would the revolutionary transformation that would make all things possible.  It won't be, and the Constitution guarantees that, unless one can believe that Sanders will see, when he gets to the White House, a Senate with at least 60 Democrats, all pledged to support a democratic socialist program, and a House that has flipped to a strong Democratic majority equally committed to becoming as much like Scandanavia as possible.  One might offer the same cautionary warnings to Tea Party devotees, already livid over the inconsequentiality of the 2014 elections, should, for example, Ted Cruz become president while the Democrats take back the Senate (and thus don't have to worry about a Republican Senate simply eliminating the filibuster).  A Cruz presidency would be terrible beyond belief, but not because under "divided government" the Republicans would in fact be able to enact into law their perfidious agenda. 

I am truly afraid that Sanders is wasting an opportunity to educate the public about important constitutional issues.  To say that every American should be recognized as having a "right' to health care is lovely (even if somewhat meaningless, as a practical matter).  What he should be addressing is why it has proved impossible, over the past century, to engage in genuinely radical reform of the health-care-delivery industry, which is a mixture of American ideology and the institutions foisted on us by those who mistrusted democracy in 1787.  I'd like to "feel the Bern," but I feel that we are being confronted with yet another politician who believes that he (or she) by virtue of good intentions and an inchoate "movement" can turn the dinosaur that is the American constitutional order around. 

Comments:

Sanders is concerned about various things with a reach to society overall and focusing on how bad the Senate is, putting aside the problem of self-interest, seems not the first thing he would logically start with. This criticism of him is misguided.

I think a more useful constitutional argument, though he probably promotes it in a fashion, is to promote the Guarantee Clause's potential in respect to electoral reform. He educates the public about "important constitutional issues" involving equality, the importance of natural persons over corporate persons, rights of minorities, the power of Congress to promote his platform and other matters.

Also, a "genuinely radical reform" of the health care delivery industry isn't just a matter of the Senate being malapportioned. OTOH, millions more people having health coverage, means to cut down costs etc., is "genuinely major reform" and as Prof. Akhil Amar, Balkin, et. al. showed, constitutional arguments were involved.
 

What does Sanders anticipate, should he be elected?

I expect he anticipates a Senate with enough Democrats that he can't be convicted and removed from office.

A Department of Justice that works for him, so that he and anyone who assists him is immune from federal prosecution. State, too, as the technique of federalizing and then dropping state prosecutions in order to shield federal officers who violate state law is well established.

And an Executive branch bureaucracy that has no concern about the law in doing his bidding, because they share in his immunity to it.

IOW, he anticipates being a dictator in all but name. And sees no point in talking about the deficiencies of a constitution he doesn't mean to be bound by.

Maybe I'm overly pessimistic, and reading too much into a red diaper baby talking about revolution. But he doesn't have to innovate to become a dictator. He just has to take what previous Presidents have done, and turn the dial to eleven. And it's already at nine.

Our constitution has demonstrated a structural flaw, that there is no restraint on a President if he just has 34 Senators on his side. Nothing, within the system, can stop him from doing as he likes.
 

This should help.

http://www.thefiscaltimes.com/Columns/2016/02/09/Why-Working-Class-Choosing-Trump-and-Sanders#
 

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Politicians tend to be pretty narrowly focused on the immediate goal, especially if there aren't any votes to be had elsewhere. Bernie has issues he wants to publicize, so he's doing that. He probably figures Prof. Levinson has the Constitution covered.
 

As one can tell from the subject heading, though, my ire is directed at Bernie Sanders, the ostensibly "revolutionary" candidate who is making all sorts of promises that cannot possibly be carried through in our present political system, operating under the 1787 Constitution, unless one truly believes in magic.

Almost none of the progressive state could have been enacted under the 1787 Constitution, but that did not stop the enactment.

"But there is really no justification for Vermont having the same number of votes as Texas. Vermont in 2014 had a population of of roughly 650,000 people; Texas is approaching 27 million people."

The people not only have local concerns which are aggregated by population in the House, but they also have geographic concerns. The interests of urban, suburban and rural areas are not the same and often at odds with one another. Under a representative democracy based solely on population, only urban interests and to a lesser extent suburban interests would be addressed and the more populous areas can not only override rural interests, but subjugate rural areas to urban rule.

"If one wants to talk about how the "game is rigged," one could do worse than begin with the U.S. Senate, whose equal-vote rule helps to explain why we have a terrible agricultural policy (including subsidies for the dairy industry that I am certain that Sen. Sanders has voted for) and why, in addition, we are unlikely ever to get a cogent energy policy, given the excessive voting power of senators from coal-producing states."

The population based House originates all funding bills and did not agree to provide agricultural subsidies for nearly a century and a half until largely urban progressives thought it would be a good idea for the federal government to direct agriculture.

The largely urban insanity seeking to outlaw mining of oil, gas and coal in rural areas - the epitome of urban subjugation of rural areas - is precisely what the Senate was meant to prevent.

 

SPAM I AM! closes his latest anti-progressive rant with this:

"The largely urban insanity seeking to outlaw mining of oil, gas and coal in rural areas - the epitome of urban subjugation of rural areas - is precisely what the Senate was meant to prevent."

Sandy referenced the role of Delaware in 1787 regarding Senate suffrage. Delaware was a slave state. The Senate suffrage provisions in the 1787 Constitution were part of the means to protect slavery. Consider the Article V Senate suffrage protection of slavery, especially as American grew beyond the original 13 states.

SPAM I AM! provides no timeframe for what he refers to as urban insanity. Consider the damage to the environment caused by the "mining of oil, gas and coal in rural areas" before the need to regulate all kinds of mining was recognized and accepted by means of a republican form of government. And the claim of "urban subjugation of rural areas" fails to recognize the many changes taking place as America grew, epitomized by WW I's "How'ya Gonna Keep 'Em Down on the Farm, After they've Seen Paree." The Constitution recognizes freedom of movement.

So once again SPAM I AM! engages in Fractured Fairy Tales history.

To resolve the Senate suffrage protection provided by Article V, how realistic would it be for a small state to give it up in the manner set forth in Article v?
 

The most realistic approach is for an amendment to pass removing the special Art. V rule, which might get one or more small states support for various possible reasons (e.g., a small liberal state will recognize it will help national liberal policy or will go along with other usual bedfellows). Then, a new rule is put in place.

Or, possibly, the Senate's powers are altered.
 

"Maybe I'm overly pessimistic"

I'd say this is the understatement of the day, but that itself would then replace it.
 

"Almost none of the progressive state could have been enacted under the 1787 Constitution"

In fact, all of it was.

"geographic concerns"

People matter in a democracy, not places. What's worse than an urban-suburban majority ruling over a rural minority? A rural minority ruling over an urban-suburban majority. Whatever flaws the first has the latter has the potential for them all plus one: lacking the consent of the majority.

"did not agree to provide agricultural subsidies for nearly a century and a half"

If you ignore things like government providing the land, Indian removal/policing, land grant universities, a variety of agricultural subsidies, etc., throughout that time I guess you could say that.

Other than that, how did you enjoy the play, Mrs. Lincoln?


 

"I have been accused of "hating" the U.S Constitution. I do not."

This reminds me of the following quote by Al Franken:

"[conservatives] love America like a 4-year-old loves his mommy. Liberals love America like grown-ups. To a 4-year-old, everything Mommy does is wonderful and anyone who criticizes Mommy is bad. Grown-up love means actually understanding what you love, taking the good with the bad and helping your loved one grow. Love takes attention and work and is the best thing in the world. That's why we liberals want America to do the right thing. We know America is the hope of the world, and we love it and want it to do well."

I submit the increasingly necessary Professor Levinson loves the Constitution like a grown up.
 

More like a person who loves their s.o. but wants to change him/her in various ways.

Or, a friend who loves their friend, but wants to stage a major intervention.
 

Also, these N.H. numbers do not look good for Rafael Cruz (R-Calgary)!
 

As we know from Iowa, the true winner is #3 ... he still has a shot there.


 

"Almost none of the progressive state could have been enacted under the 1787 Constitution"

Mr. W: In fact, all of it was.


In violation of the Constitution, not through it.

BD: "geographic concerns"

People matter in a democracy, not places. What's worse than an urban-suburban majority ruling over a rural minority? A rural minority ruling over an urban-suburban majority.


A rural minority cannot rule over an urban-suburban majority under our bicameral system. Under Article I, Congress cannot exercise power without the agreement of both the population based House and the geographically based Senate. This is effective supermajority rule.

BD: "did not agree to provide agricultural subsidies for nearly a century and a half"

If you ignore things like government providing the land, Indian removal/policing, land grant universities, a variety of agricultural subsidies, etc., throughout that time I guess you could say that.


Providing security over US territory is not providing the land or a subsidy to farmers. Land grant universities covered a wide range of eduction and also were not a subsidy to farmers.

Congress occasionally enacted spending which assisted farmers, but large scale agricultural subsidies of the kind to which Sandy was referring started under the Agricultural Adjustment Act of 1933 enacted with the full support of urban Congress critters in the House.

Also, these N.H. numbers do not look good for Rafael Cruz (R-Calgary)!

The results look good, so far.

Trump was the closest thing to the local candidate and was always going to win this purple/blue state.

Kasich will be a distant second after spending all his money and time in NH and is no threat to do anything later.

Cruz put very little money and comparatively few visits into NH, but will still be in the middle of the pack.

Now we head to the South where the so called conservative lane of the primary race turns into a super highway. Team Cruz has organized the entire region and Cruz has spent considerable time there already.
 

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"Or, possibly, the Senate's powers are altered. "

Yes, that would be a constitutional approach most likely to work: Leave representation in the Senate alone, and just turn it into a ceremonial body with no actual power.

Not likely to work, because you still need the support of the 14 smallest states, and they know what the end game is here: The entire country gets run for the benefit of the biggest 7-8 states, with everybody else run roughshod over.
 

Brett: Not likely to work, because you still need the support of the 14 smallest states, and they know what the end game is here: The entire country gets run for the benefit of the biggest 7-8 states, with everybody else run roughshod over.

The Western states with massive swaths of federally controlled land know this feeling well.
 

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To get back to Sandy Levinson's themes.

Listening to Sanders speech (I listened to Clinton, Trump and Kasich), a major theme was how the system was a threat to our democracy. As Mr. W. noted recently, the Guarantee Clause can be used in the area of campaign finance regulation. Mark Field also discussed recently the understanding of a "republic" and "republican government" by the Founders. It isn't the Senate but there are ways (and others, such as equal protection, self-government etc.) to use constitutional language here.
 

It's probably unclear to you why Luxumberg and the PRC have the same number of votes in the UN General Assembly, too. Here's a clue: Same reason.
 

In response to Brett:

1) Just what powers the Senate would have is debatable. For instance, the Senate can be given powers over treaties, appointments, trying impeachments and other matters while the House could have general power over the purse etc. It can have a limited power of veto only delaying things. etc. It need not be a "ceremonial" body.

2) "Everybody else" is not "run roughshod over" especially when "everybody" is not land, but human beings whose interests are not limited to the state where they live. Still, the sort of moderated majority rule that would be in place either way does lead to some people losing out. Elections have consequences etc. OTOH, now, the interests of people are "run roughshod" (I wouldn't use such hyperbole, but okay) on but Brett et. al. doesn't care as much since they lean liberal.

3) Pretty hard for 7-8 states to control things here -- a range of states as diverse as Texas, NY, Florida et. al. would have to en banc (Republicans and Democrats) combine together to get the votes. People here will have a diverse range of interests and combine in various ways. Plus, to add this part, there are various checks in the Constitution (if not as broad as implied by Shelby County v. Holder) that protect states as states.

Anyway, why Vermont, with less people than let's say the combined population of two of the more populous counties in SC, should have equal influence here as CA is unclear to me. That is to the degree now present in the Senate. That seems a rather artificial approach of dividing interests.
 

"It's probably unclear to you why Luxumberg and the PRC have the same number of votes in the UN General Assembly, too. Here's a clue: Same reason."

New York and South Carolina aren't countries. This isn't the UN. And, no, I don't think for purposes of domestic government, giving equal power akin to that a good idea.

The lack of clarity isn't on this end.
 

It's probably unclear to you why Luxumberg and the PRC have the same number of votes in the UN General Assembly, too. Here's a clue: Same reason.

WY and CA are separate countries speaking different languages and inhabited by distinct ethnic groups?

Well, ok. If the UN is the ideal system, I guess we have no choice.
 

New York and South Carolina were separate countries, when the Constitution was written.
 

New York and South Carolina were separate countries, when the Constitution was written.
# posted by Blogger Brett : 10:13 AM


So what? That is completely irrelevant.

In any case, when did wingnuts like you decide that the UN has a system that we should emulate?
 

Got it backwards, BB; The US is the system that the UN was emulating.

And the reason it matters is that the sovereign states that formed the US were not willing to form it if their separate interests were not protected. Later states were simply guaranteed the right to join on an equal basis to the older states.

The US constitution doesn't make much sense if you think of the US as a unitary nation. As the federation it was actually intended to be? Makes sense from that perspective.
 

"New York and South Carolina were separate countries, when the Constitution was written."

They were separate "states" that under the Articles of Confederation "delegated to the United States" (a country) various powers that a country tended to have.

The U.S., a nation, acted. For instance, "No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States."

Doesn't sound like Luxembourg and China. Anyway, yes "so what" today?

"The US constitution doesn't make much sense if you think of the US as a unitary nation."

It isn't an all or nothing deal. James Madison opposed the two senator rule. I think if he won that US Constitution would have made sense.
 

Got it backwards, BB; The US is the system that the UN was emulating.

# posted by Blogger Brett : 11:04 AM


Not really, but let's run with that. When did wingnuts like you become such big fans of the UN?

 

"They were separate "states" that under the Articles of Confederation "delegated to the United States" (a country) various powers that a country tended to have."

And retained other powers that a country tended to have. That's what makes a federation intermediate between a loose collection of sovereign states, and a sovereign state itself.
 

You said they were "separate countries" -- now you are saying they are some sort of "intermediate" thing.

Powers delegated to the nation (the states acting collectively in Congress assembled) under Articles: treaties and related things, armed forces (as compared to state militia), war-making and more.

The sorts of things Luxembourg and China have. It isn't just like the UN, I guess.

Changing the subject, yes, the U.S. has a federal system that, more so before 1787, gives subdivisions more power than other countries. They still aren't mini-nations.
 

Brett's:

"That's what makes a federation intermediate between a loose collection of sovereign states, and a sovereign state itself."

How is the 1787 Constitution factored into this? It significantly strengthened the role of the central government, accentuated by the Supremacy Clause, lessening the powers of the states.

By the Bybee [expletives deleted], the 1787 Constitution has not served a a model for constitutions adopted in the 20th century by nations that gained freedom and sought appropriate forms of governance, many if not most adopting parliamentary forms of governance.
 

The United States have a federal system, that more so after 1787, delegates to the federal government some of the powers independent countries would normally exercise on their own behalf. That doesn't make them non-countries. It makes them, within the US, a half-way state between countries and simple adminstrative districts.

Just explaining to BB why the Senate actually made sense. If you were going to write a constitution for the US as a unitary nation, rather than a federation, it would be rather different from the one we have.

It would also be a bad idea, the US being larger and more heterogeneous than makes sense for a unitary nation. Which is why the effort on the part of the federal government to simply swallow up the sovereignty of the individual states is causing such problems. The US doesn't make any sense as a unitary nation.
 

"How is the 1787 Constitution factored into this? It significantly strengthened the role of the central government, accentuated by the Supremacy Clause, lessening the powers of the states."

But still didn't go so far as to abolish the independent sovereignty of the states. It just adjusted the ballance between states and the federal government a little (too much). The federal government still lacks some normal attributes of a nation-state, such as the general police power, or the authority to regulate local commerce.

Kind of an odd national government that lacks the general police power outside of federal enclaves.
 

The US doesn't make any sense as a unitary nation.

I remember that line from the Pledge of Allegiance.
 

Has Brett finally found a balm to soothe his chronic case of Wickburn?

Who's challenging federalism under the Constitution? The issue might come up during a second constitutional convention, including consideration of a federal general police power.
 

And of course, that make it all make sense, abolishing state sovereignty, and requiring Alaska to live under the same laws as Hawaii, Montana the same as Rhode Island. Why, the power of pledges is incredible, and Francis Bellamy's words count for more than the actual Constitution.
 

"You said they were "separate countries" -- now you are saying they are some sort of "intermediate" thing."

It's backpedaling, is what it is. A necessary exercise when one says things like this: "That doesn't make them non-countries. It makes them, within the US, a half-way state between countries and simple adminstrative districts."
 

"requiring Alaska to live under the same laws as Hawaii, Montana the same as Rhode Island"

Why have Austin live under the same laws as Dallas, Lubbock under the same laws as Briscoe?
 

The Constitution is the law of the land ... applies to each state.

I got to mail something -- same first class stamp rate for each state.

iacta alea est.
 

I said they were separate countries going in. They agreed to delegate *part*, and only part, of their sovereignty to the central government. That was the Articles of Confederation.

With the Constitution, they adjusted the balance a bit, (And I think too much.) but still did not cede all their sovereignty to the central government. Hence the US is, still, a federation of sovereign states.

It's a federation of sovereign states where the federal government is trying to centralize all power, and become a national government instead. But it hasn't yet succeeded in this effort.
 

It is, of course, the Constitution which makes us all live under the same laws to an even greater extent than was true under the Articles. The whole point was to give the national government the power to make laws in cases involving the general interests of the Union, cases where the states were separately incompetent, and cases where the national harmony would be affected. The Pledge merely reflects a truth to which all Americans agree.
 

I merely suggested that federalism might be an issue raised at a second constitutional convention. The discussion could go in various directions, reflecting federalism issues over the life of the Constitution. I personally have no specific recommendations but a discussion result in a resolve that many could agree upon. I've been reading on my desktop Jack Rakoves's review of Mary Bilder's "Madison's Hand" which includes questions and comments in its 44 pages (double/triple spaced?). The Legal History Blog provides a link to the review on SSNR. On the subject of federalism, there is interesting discussion on Madison's negatives on state legislation that the delegates did not accept. I imagine that delegates to a second convention would address the history of the first convention, the ratification process, various amendments adopted and some not, the Court's decisions, etc, in their deliberations, rather than a tabula rasa approach.

I'm sure Brett would want such a convention to cure his chronic case of Wickburn.
 

"I said they were separate countries going in."

What you said was: "New York and South Carolina were separate countries, when the Constitution was written."

When the Constitution was written NY and SC were joined in a 'perpetual union' under the Articles, a union where even you concede they ceded many of the attributes of a sovereign country.
 

I want a convention because, for at least a short while after the Constitution is massively amended, 'living' constitutionalism is a non-starter. The language is current, too many people around who darned well know what it means, you'd get laughed at if you tried to pull that garbage. Living constitutionalism is the kind of scam that takes a long buildup to pull off.

So a Convention stands a chance of restoring the rule of law, for a while. As I've remarked before, even a considerably worse constitution than the one we nominally have, is better than a perfect constitution *that isn't actually in force*.

In part this is a calculation that people who tend to agree with me control state governments, people who disagree with me the federal, and so I'm likely to not find the new one too offensive.
 

"The language is current, too many people around who darned well know what it means, you'd get laughed at if you tried to pull that garbage."

It's difficult for people who live in a simplified, black-and-white world to see that this is silly. They started arguing about what was Constitutional and what was not about exactly after the thing was ratified.
 

You want to live in a world where there's no black and white, Mr. Whiskas, you'd best find some way to acknowledge that there's eggshell and charcoal, and it's possible to distinguish them. Because if you reject black and white, AND distinguishing shades of grey, you're just blind.
 

Brett, the only reason they could agree on the Constitution is because it had shades of gray. The whole black and white thing is pure fantasy on your part.
 

How might Brett as a delegate to a second constitutional convention address the matter of the changing demographics - in currently understood language, of course?
 

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Brett, I'm constantly acknowledging that some readings are more persuasive than others, what I'm not 'into' is thinking that where lots of people disagree over the meaning of a provision of what, after all,in addition to all the many vagaries that just ordinary language constantly attracts is a Constitution created via political compromise and purposely written in general terms, that it's a simple matter to see which side is correct and which side is being either willfully stupid or traitorous. The meaning of provisions of the Constitution was immediately the source of fierce debate by the very people who had authored it!
 

I finally finished reading Jack Rakove's SSRN review of Mary Bilder's "Madison's Hand." Though long, it is a worthwhile read. Here's the closing portion of Rakove final paragraph:

"But, in the second place, Madison’s Hand will arguably have a perverse
effect on the one form of scholarly inquiry that now seems to dominate legal
scholarship on the origins of the Constitution. I refer, of course, to the originalist
project, which has taken a profoundly non-historicist, or even anti-historicist, turn.
Insofar as historians demonstrate that the task of recovering the original meaning,
intentions, and understandings of the Constitution is a complicated and messy
project, they encourage putative originalists to take a different path, which is now
known as “semantic” or “public meaning” originalism. The concluding paragraph of
a review as lengthy as this one is hardly the place to pursue this vexed question.40
Suffice it to say that Madison’s Hand, by virtue of elaborating the complexity of the
historian’s quest, will likely fortify the anti-historicist bias of originalism as it is
currently practiced. How one could possibly discuss the original meaning of the
Constitution without closely examining the intentions of its framer-authors is a
mystery (Madison might call it one of the “arcana”) that still puzzles me, but I am
only a working historian—and Mary Bilder has just made that work all the more
challenging."

In my view, a second constitutional convention would include a lot of battles on originalism and living constitutionalism in reviewing the history and meaning of the 1787 Constitution as amended.
 

"How one could possibly discuss the original meaning of the Constitution without closely examining the intentions of its framer-authors is a mystery"

Rakove really considers this a mystery? Did he take first year law school contracts?

Original meaning is analogous to the four corners rule where you enforce the contract as written using the contemporaneous meaning of the words and terms. What the parties wrote and agreed to is the best evidence of their intent.

Original intent is the equivalent of parol evidence of the intents of the parties in entering into the contract. Because such evidence is almost always self serving and incomplete, parol evidence is generally barred unless the text of the contract is vague or missing terms.

Madison's journal is of interest to historians, but should have limited interest to someone interpreting the Constitution.
 

SPAM I AM!'s:

"Madison's journal is of interest to historians, but should have limited interest to someone interpreting the Constitution."

suggests the Court should ignore what Madison said - and when he said it.

Of course the contract rule relates to the parties to the contract. But there are contract rules - parol evidence under certain circumstances - providing for gaps in the four corners. The parties directly consented to the provisions of the contract. How many of us consented to the terms of the 1787 Constitution? Perhaps SPAM I AM! would have consented to its protection of slavery.

And keep in mind that SPAM I AM! often attempts to use history to support his positions, often with egregious mis-history. SPAM I AM! blows both hot and cold, mis-history when it serves his purposes and four corners when history suggests otherwise..
 

"How many of us consented to the terms of the 1787 Constitution?"

There are really only two things that give the current federal government any claim to rule over people who don't like it: The terms of the 1787 Constitution, and it's capacity/willingness to kill them if they don't submit.

It's a really bad idea for a government to dismiss the force of the formal basis for it's legitimacy, unless it's prepared to fall back on killing people. Which is probably why you don't hear statements like your's from actual officeholders, who'd face that choice if they rejected the idea that the 1787 constitution is actually binding on them.
 

BD: "Madison's journal is of interest to historians, but should have limited interest to someone interpreting the Constitution."

Shag: ...suggests the Court should ignore what Madison said - and when he said it.


Unless Madison is explaining the contemporaneous meaning of a term of art, yes.
 

"There are really only two things that give the current federal government any claim to rule over people who don't like it: The terms of the 1787 Constitution, and it's capacity/willingness to kill them if they don't submit."

I think the federal government has a claim to rule in large part because the people vote for the President and members of Congress, both of them involved in choosing those who interpret the laws in the courts. Majority rule is a fair approach, even if some people don't like the winners, especially when it is tempered with safeguards.

Brute force is not a great basis of legitimacy and sounds more like the proverbial state of nature government is supposed to move us pass. And, relatively speaking, the feds show little willingness to "kill" people as shown by reactions to various refusal to follow laws. Even tyrannies find brute force of limited value.

The terms of the Constitution -- the original and the amendments -- does provide a written framework, a baseline, to work off unlike the Brits with their "unwritten Constitution" (though the norm in recent years are to have written constitutions and bills of rights). But, legitimacy is not brought forth by trying to find out what it meant in the past, there never an agreed upon meaning for one thing, but current understanding. Various groups in particular -- voted or made up of the people (e.g., juries) -- having a special role in so doing this.

Something like this happens in other contexts too such as understanding religious works.

 

I think the federal government has a claim to rule in large part because the people vote for the President and members of Congress, both of them involved in choosing those who interpret the laws in the courts.

"Voting is an act of original sovereignty." James Wilson
 

"I think the federal government has a claim to rule in large part because the people vote for the President and members of Congress, both of them involved in choosing those who interpret the laws in the courts. Majority rule is a fair approach, even if some people don't like the winners, especially when it is tempered with safeguards. "

Well said, some have read the Declaration!
 

Bart brings up contract law, which is actually illustrative. Look how many cases fill the casebooks and dockets because of the different reasonable interpretations that exist for these documents (which tend to be less complicated than a Constitution, written in general terms and an agreement among multiple authors).
 

Much of contract law was based on common law, laws made by judges, frequently changed and not uniform. Then legislatures addressed contract law, via uniform acts, that included explanations and examples, with citations to even common law. Despite attempts at uniformity, many, many cases arose involving contracts and their interpretation, as Mr. W points out. Just consider how in the states different states interpret UCC provisions differently. How else can we keep up full employment for lawyers?
 

"Majority rule is a fair approach, even if some people don't like the winners, especially when it is tempered with safeguards."

I personally think Lysander Spooner had the better of that argument. The consent of the governed is all very well and good for that fraction of the governed who actually consent, but the idea that it justifies the exercise of power over the governed who don't consent is just one of those special excuses we make for government, to pretend it's different from any other protection racket.

In any event, given the comparative popularity of the Constitution, and the federal government, the latter would be very ill advised to try going it without the excuse for ruling the former provides. That realization is probably why they're still clinging to the excuse.
 

Brett:

Arguably, the form of government which maximizes personal liberty is that which limits itself to keeping people from harming and thus denying liberty to one another. This requires an exercise of government power and such power is best exercised by the consent of a majority to supermajority of the people. You cannot rule through unanimous consent.
 

The problem comes in, Bart, when you define the problem away. It's one thing to say, "There's a problem here, we really are imposing on the losers, it's worth it sometimes, but sometimes it isn't." At least you're factoring the costs as well as the benefits. Yes, sometimes it actually IS worth it crushing the minority, forcing them to comply.

It's quite another to pretend that the losers aren't being imposed upon, and so there's no cost to be balanced against the putative benefit.

Once you buy into the notion that the fraction of the governed who are shouting, "H*ll, no, I didn't consent!" *really* consented, you've lost sight of the cost, and you'll imagine that it's just fine to do anything, so long as you win a vote by even a plurality, or just haven't yet pissed people off enough for them to take up arms against you.

We must not take that step of pretending that opposition or resignation are consent. Maybe consent isn't necessary sometimes, but you've got to recognize that you're doing without it.
 

"Consent" has different shades of meaning, but a basic meaning is "permission for something to happen or agreement to do something." We the People do that. We are not rebelling by armed force or by passive resistance. We are giving permission. In fact, we are taking part in the government, including by voting and accepting the various benefits government offers over living like beyond the thunderdrome or something.

And, the government has a "claim to rule" in part because we the people choose its members, to get back to what I specifically referenced. At times, the people govern directly (juries, militia, ballot measures), other times they by some sort of majority rule choose representatives. Unlike some places, we also deem it important to have specific safeguards that cannot be taking away by simple majority rule. But, the UK parliamentary supremacy model is still "fair" if not fully ideal.

The government does offer protection as the Declaration of Independence argues but it is not like any other "racket" in large part because unlike the mob or something, again, we the people don't just take it because they will kill us if we don't and particularly because there are various safeguards Big Louie don't offer.

The people bitch about the feds all the time but they bottom line rather as a general matter not have the "federal government" as a general institution taken away from them. If anything, many seem to want them to have more power (e.g., Trump with his waterboarding talk). It's easier to support some principle or text like the Constitution, especially since its so pliable, than specific people or government that requires you to give up something. So, sure, even when the government (including WE THE PEOPLE) ignore it, the Constitution is appealed to.

 

Since it might be singled out, to add to the last part, I don't think the Constitution is being ignored by as a whole. The idea of a "Constitution" and underlining constitutional principles and rights (such as the meat to 'liberty' or 'due process') also goes beyond the mere text.

Also, this isn't a no "cost" thing. There are "impositions." But, net, government is better than the alternative and shown to be since the dawn of human civilization. Even anarchy in any realistic sense will lack total agreement by everyone, especially children etc. and things will be delegated to others in various respects simply because agreeing about every little thing will be impractical.
 

See, paragraph four, on display. If we haven't revolted, we've consented.
 

Madison to Jefferson, 4 Feb 1790:

“I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred where no positive dissent appears. … On what principle does the voice of the majority bind the minority? It does not result … from the law of nature, but from compact founded on convenience. … If this assent can not be given tacitly, or be not implied where no positive evidence forbids, persons born in Society would not on attaining ripe age be bound by acts of the Majority; and either a unanimous repetition of every law would be necessary on the accession of new members, or an express assent must be obtained from these to the rule by which the voice of the Majority is made the voice of the whole.”
 

sanders is hoping and planning for a change in the legislature.
 

Brett:

So long as there is equal enforcement of the law and the government is limited to preventing people from harming others, majority or preferably supermajority rule cannot "crush" a minority because none of us has the liberty to harm others.

The trick is to compel equal enforcement and to limit the government. Our present Constitution can definitely be improved in these areas.
 

See, paragraph four, on display. If we haven't revolted, we've consented.
# posted by Blogger Brett : 1:26 PM


You can always leave. There are plenty of places you can go where you don't have to revolt or consent. Unfortunately, they're all hellholes.
 

"See, paragraph four, on display. If we haven't revolted, we've consented."

We are not merely not revolting. We are taking part in government and accepting its benefits. If even this isn't "consent," words are being used curiously.
 

One of the things that I think Brett and Bart and many like them don't get is that you can 'run roughshod' over someone by blocking collective actions that a majority thinks is important and necessary. It's an odd omission on their part considering their veneration of our Founding, if you read the Declaration about as many of the complaints iterated there had to do with the Crown *blocking* actions the colonists thought important than his *imposing* actions on them.

If I were Brett or Bart now that I've mentioned that our Founders felt ill treated by George III's blocking of government action they thought necessary, I'd analogize that to their support for anti-majoritarian structures in our system and say that Brett and Bart are supporters of George III style tyranny.

But fortunately, I'm not into such silly hyperbole.
 

Mr. W:

The folks with the complaints against the Crown were the ones who drafted the Constitution to comprehensively limit government power over the people.

Although the precedent for democracy was sparse, the Constitution's drafters did correctly fear and work to limit a democratic tyranny of the majority. They did this by dividing and limiting government power and carving out from government infringement areas of personal liberty in a Bill of Rights.

Brett and I are in good company.

 

SPAM I AM!'s:

"Brett and I are in good company."

with the "Constitution's drafters" based on:

"They did this by dividing and limiting government power and carving out from government infringement areas of personal liberty in a Bill of Rights."

needs completion, as what they did back in the late 18th century included the design of AND protecting the institution of slavery in so many ways. Where was the personal liberty of the slaves, not to mention Native Americans, women, etc?

Much earlier in this thread (before the mostly liberal, some progressives Thursday lunch), I posed the following:

"How might Brett as a delegate to a second constitutional convention address the matter of the changing demographics - in currently understood language, of course?"

Brett did not take the bail (although he might have nibbled a bit in his nimble mind), but I extend this to SPAM I AM! as he sometimes seems to speak for Brett.

 

Shag:

The Constitution will always have a caveat for Democrat and later progressive slavery, Jim Crow, racial and gender preferences, and the wide spectrum of progressive selective applications of the law and redistributions of wealth.

We need to amend the Constitution with a more detailed provision guaranteeing equal application of the law.
 

"the ones who drafted the Constitution to comprehensively limit government power"

Actually, the pro-Constitution Founders were those that were moving to have a more vigorous central government, the anti-Federalists invoked the language of those you run with. The Federalists were the Progressives of their day, the anti-Federalists the Tea Party, and they lost.

"We need to amend the Constitution with a more detailed provision guaranteeing equal application of the law."

I thought your stand was that the 9th Amendment already included this (written in invisible ink of course, and in direct conflict with numerous provisions of the Constitution existing at the time and later of course...).

 

SPAM I AM! apparently looks upon the KKK as progressives, likewise the current GOP base resulting from Nixon's Southern Strategy that began in 1968 as progressives, likewise the White Supremacist groups that support Republican Donald Trump as progressives, ad nauseum. While SPAM I AM! nibbled at the bait, he avoided the hook, as the barb was too difficult for him to swallow, offering mere platitudes.
 

Looking at history, including the events surrounding the ratification, of constitutional text and principle only takes us so far but as Mark Field's quotes suggest, they are not just useful to conservatives. When people like Jack Balkin (in his "Commerce" article, e.g.) use it in that way, however, they must be doing it wrong. Since "the left" or "progressives" are aided in the process.

Also, interesting account of a lawsuit on "nationals" in American Samoa.
 

link to account: http://www.bna.com/supreme-court-american-b57982067167/
 

Shag:

The KKK and other southern Democrats were indeed populists and then progressives.

Trump is a progressive plutocrat posing as a populist who demagogues immigration.

For crying out loud, Trump was one of the world's plutocrats who gave money to the Clinton Foundation and Slush Fund from which Bill and Hillary draw the money to pay for their lavish travel, lodging and dining expenses.

If the major parties offer us the NYC progressive plutocrat demagogue and the felon dowager queen in waiting, I am voting libertarian. There is no lesser of those two evils from which to choose.


 

SPAM I AM!: provides this incomplete sentence:

"The KKK and other southern Democrats were indeed populists and then progressives. "

but now are the base of the Republican Party. Is SPAM I AM! suggesting they continue to be progressives? If so, do they know that?

As to Trump, what he did for the Clintons in earlier years, he is leading the other Republican candidates by quite a bit, including thae White Supremacist wing of the GOP! Trump and they today are now progressives?

SPAM I AM! continues with his HUMPTY-DUMPTY version of progressives.

And SPAIM I AM! still declines to take the bait.
 

There are many former or partly former progressives in the GOP base.

White working class voters used to be the bedrock of the New Deal coalition until the upper middle class urban progressives went Euro-socialist, multicultural and secular.

These new left Democrats started pushing white working class folks out of the party in the 1970s and Obama completed that removal over the past eight years.

Trump is playing the populist to appeal to these voters much like Huey Long did during the last progressive depression.
 

According to SPAM I AM! conservatives are a minority in the Republican party. And libertarians are an even smaller minority in the GOP. Rand Paul leaned libertarian as a presidential candidate and look where that got him. I think I'll work on a HUMPTY-DUMPTY definition of who/what is a republican nowadays.
 

All right, after LOL-ing over SPAM I AM!'s efforts at a back door jibe:

" ... much like Huey Long did during the last progressive depression."

that came about after 12 years of Republicans Harding, Coolidge and Hoover. SPAM I AM! has on several occasions HUMPTY-DUMPTIED Hoover as a progressive, ignoring that the crash of '29 came about in the first year of Hoover's term after the Roaring Twenties of Harding/Hoover roiled the unregulated economy.

 

Shag:

Hoover was indeed the leader of the progressive wing of the GOP for years. Harding and Coolidge largely ignored the economic recommendations of their commerce secretary. Hoover would have to take the big chair himself before he could inflict his progressive misdirections of the economy on the nation. FDR did not reverse any of Hoover's policies, the New Deal built on them.

Progressive Fed easy money inflated the stock market during the late 20s, the market corrected in late 1929 and then largely recovered by early 1930. This was not the cause of the 1930-32 recession or the following years of depression without recovery.

I have given you a bibliography to educate yourself on this period. Try reading it. Willful ignorance is a terrible thing.
 

Interesting discussion of Alexander Hamilton:

http://ywc.podomatic.com/entry/2016-02-12T10_24_08-08_00



 

SPAM I AM!'s:

"I have given you a bibliography to educate yourself on this period. Try reading it. Willful ignorance is a terrible thing."

ignores his lack of credibility over the years at this Blog with mis-history, sometimes with his hyperbolic Chicken Little "THE SKY IS FALLING, THE SKY IS FALLING!;" his Aesop's "The Boy Who Cried Wolf" so often no one could believe him; his HUMPTY-DUMPTYmeanings of words to suit his purposes; his Shermanesque Fractured Fairy Tales; his hysterical understanding of primary sources. Bibliography? Rather, Blogography.
 

"The KKK and other southern Democrats were indeed populists and then progressives."

The KKK in non-Southern places, and places where the GOP was popular, like Indiana, were affiliated with the GOP. As you might imagine, they played into whatever power structure was in that locale.

It's interesting that Bart ignores Robert LaFollette and Henry Wallace, who were the nominees of the actual PROGRESSIVE PARTY in 1924 and 1948 and who were hated with white hot hatred by the KKK.


 

Indiana Klan:
https://en.wikipedia.org/wiki/Indiana_Republican_Party#History

Maine Klan:
https://en.wikipedia.org/wiki/Ku_Klux_Klan_in_Maine#The_Klan_and_the_Maine_Republican_Party
 

Joe, I checked out your link re: Hamilton and listened to a portion only but I do plan to get back to it. A couple of years ago prior to the Thursday lunches, I'd arrive early and check out outdoor used books stalls. I bought Claude G. Bowers' "Jefferson and Hamilton, The Struggle for Democracy in America" published in 1927 at a modest price. I was intrigued by the Table of Contents in the old style of topics in each chapter. I had long been a fan of Jefferson and knew of the rivalry with Hamilton that was cut short by Aaron Burr. From time to time I would check certain parts of the book based on topics in certain chapters. I don't know how well Bowers' history holds up. But with the more recent interest in Hamilton attributable to the history, perhaps I should get more into this book, although my eyesight limitations continue. Perhaps Google Books includes this; I haven't yet checked. Chapter I. has the intriguing title "Days of Comedy." I thought this might be of interest to you.
 

Mr. W:

It is true that the so called "Second Klan" briefly ran as Republicans in a couple northern states out of necessity because Republicans made up a majority of the electorate, mostly on an anti-immigrant platform. As your Wiki link noted:

One African American newspaper stated "the Ku Klux Klan has captured boot and breeches, the Republican party in Indiana and have [sic] turned what has been historically an organization of constitutional freedom into an agency for the promotion of religious and racial hate...

Like any other political party, Republicans can go temporarily brain dead and vote in miscreants. However, the GOP never allied with the Klan terrorists to impose a system of government racial discrimination like the Democrats did with Jim Crow. As soon as the Klan showed its colors, GOP support vanished:

In 1922, when the Klan-dominated General Assembly tried to pass a Klan Day in the Indiana State Fair, Republican Governor Warren T. McCray vetoed the bill and earned the ire of Stephenson and the Klan. The peak of their power and influence was in 1925, when the Klan had McCray arrested, imprisoned, and thrown out of office on a charge of mail fraud and replaced with Republican Governor Edward Jackson, who was a KKK member. Stephenson is infamous for his words "I am the law in Indiana."

The Klan quickly fell apart under the revelation that Stephenson had abducted, raped, and murdered Madge Oberholtzer. More of a populist organization that believed in the Klan's image of defending the race and "Protestant Womanhood," the Klan's power and influence in both Indiana and its politics dissolved quickly.

 

Julie Silverbrook was interviewed in the link. She is the executive director of he Constitutional Sources Project and very passionate about the Constitution in general (during one Republican Debate, she tweeted the whole Constitution).

I have listened to the soundtrack of the popular Hamilton musical & can see why so many like it. I also reserved the Ron Chernow biography, which was a primary source. The link, other than general interest, is to supplement the comments that the Constitution (putting aside certain spin) was ratified to expand federal power, various later amendments doing that even more.

This is partially why some don't like it that much, the fellow travelers to Sandy Levinson who wish to amend it for somewhat different reasons, though as is not surprising, both sides will work with what they have and spin it their way. This as has been noted goes back to the Founding & also involved one side calling the side frauds for "pretending" to follow the actual Constitution.

http://balkin.blogspot.com/2015/05/the-jefferson-rule-interview-with-david.html

The Constitution balanced expanded governmental power (including of the courts), but as Mr. W. noted, republican government in large part is a matter of allowing the people, by a form of moderated majority rule, to do things.

The book Shag references looks rather large. Rather the Edward Samuel Corwin bio of John Marshall from the 1920s that is about 1/4 as long. But, the ex
 

(The expanded table of contents practice is charming)

Random thought: maybe, the Tea Party should sponsor a movement for Snapple or some other tea to put constitutional quotes on bottle caps like fun facts and sayings are put there now.
 

Joe:

Given that our schools barely teach the Constitution any longer and, when they do, often mis-teach it, that is great idea.
 

I have given you a bibliography to educate yourself on this period. Try reading it. Willful ignorance is a terrible thing.
# posted by Blogger Bart DePalma : 5:06 PM


LOL



 

Apart from the passing of a legal giant and savior of the Second Amendment, Justice Scalia's passing with 11 months left in an Obama term is a constitutional disaster of massive proportions.

Obama will nominate a female minority with mainline progressive credentials and dare the GOP Senate to vote her down during an election year.

The GOP Senate will likely cave after much posturing.

The resulting progressive majority will then rubber stamp every lawless decree of this administration and probably proceed to gut the First and Second Amendments again.

Dark times for the rule of law and individual liberty.
 

This comment has been removed by the author.
 

"Tea Party conservatives such as Sens. Ted Cruz, R-Texas, and Mike Lee, R-Utah, appeared impressed as well. Cruz, who clerked with Srinivasan at the 4th Circuit Court of Appeals, quipped, "I am hopeful that our friendship will not be seen as a strike against you by some."

http://www.usatoday.com/story/news/politics/2013/04/10/obama-republicans-senate-judges-srinivasan/2068991/

Prof. Dorf comments: http://www.dorfonlaw.org/2016/02/a-personal-remembrance-of-justice-scalia.html
 

I respect Scalia, though I think him wrong on various things, including because he gave as good as he got. He cheapened his position at times being a clown, but he was one of the greats as a general matter. RIP and sorry for his family and friends including RBG who not too long ago had to deal with the death of her husband.

 

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