GOP's Whitewashed (mis)reading of the Constitution

I was having a conversation with a fellow philosophy faculty member, and he made the rather coherent argument that even if we ignore the ideological pluralism of the Founding Fathers, the claim that we have to stick to their intentions is essentially a logical fallacy writ large.

Appeal to Tradition

It is relevant to ask why older/traditional is "better" than living interpretation.

 

Except it's not an appeal to tradition. It goes back to the very principles of having a written law in the first place.

The whole point of a written legal code is so that those who are in power cannot change the laws based upon their whims. When you combine that with the philosophical basis for the Constitution (as described in the Declaration of Independence) that the authority to govern derives from the consent of the governed, and that it is the People who are sovereign, not the government, it is clear that the purpose of a written constitution is to clearly delineate the powers and authority that the People grant to the government. That power and authority are necessarily finite and limited.

If you follow the "living interpretation" approach, those powers become virtually unlimited, because you are basically ceding to the government the ability to decide what its own powers will be. A "living interpretation" places no outer limits on what power the government can interpret into the Constitution.

Logically, if the People only granted the government powers A, B, and C, then unless the People later also grant them powers D, E, and F, the government doesn't have powers D, E, or F. The government doesn't have the authority or the right to later come along and claim D, E, and F. (Or, if you prefer, D, E, and F are plausible under some historical sources, but X, Y, and Z are clearly not granted by any historical source.) You need at least some measure of original intent, or else the actual meaning of the document becomes completely malleable, and therefore worthless.

Kimball Kinnison

EDIT: The Constitution is like a contract. If we enter into a written contract to grant you some authority from me, then while there might be some wiggle room in the contract based on our different perspectives, you can't just reinterpret the contract to mean something completely different from what we started with. You can't just say that because I gave you authority to conduct real estate transactions (with a limited power of attorney) that you also have authority to make healthcare decisions for me, even if you present a tenuous link between my real estate and my healthcare.

 

As I understand it, the Constitution was made deliberately vague so as to satisfy all the delegates who were present at the constitutional convention. This thing was made to be flexible. The Constitution didn't stop us from kicking Native Americans off their ancestral lands, it didn't stop us from fighting over slavery, or from going to war with Spain and Mexico, it didn't stop us from putting Japanese-Americans in internment camps, and it certainly didn't stop the accumulation of war powers under the executive branch during WWII, the Cold War and the War on Terror. I think we have a living Constitution whether we like it or not, because everyone is simply going to interpret it differently. You say that "Dred Scot is one of the worst non-originalist decisions ever made, and quite a few supporters of originalism have said as much", but are you referring to contemporary originalists, or the originalists of yesteryear? Because if originalists of different generations say different things, then that just goes to show that there's a living Constitution.

 

Or it means that more historical scholarship on the question is required.

I am an originalist, but I've never claimed that there is only one, true, perfect originalist interpretation. However, if you want to exercise any powers under the Constitution, then you need to justify that you actually have those powers by pointing to how they were granted to you. That would require demonstrating the relevant portion of the Constitution and then giving a historical argument (complete with sources) demonstrating that the power was actually granted. At that point, the side with the most compelling historical argument should be the victorious one (with the Supreme Court acting as the arbiters of which argument is most compelling).

It shouldn't be a case of "The Court said X in this case, which we can push to mean Y in this case", but rather "We want to do Y, and this is allowed by the Constitution because it says A, which historical documents B, C, and D show was meant to give us the power to do Y." The former provides a much more malleable basis that can then be twisted almost any way the Courts want. The latter at least provides a better standard, and prevents someone from just inventing new powers out of thin air.

Kimball Kinnison

 

We'll discuss this later - I was just posting it as an interesting take on a recurring debate. Suffice it to say that I find your reasoning fundamentally flawed, but until I have the revisions done on a manuscript and university web content migrated, it'll have to wait.

 

This is about healthcare and the "forcing people to buy insurance" deal isn't it? Because if it is, then what's the difference between that and simply raising taxes to subsidize insurance companies while forcing them to provide insurance to certain people?

http://www.cbsnews.com/stories/2011/01/16/sunday/commentaries/main7251883.shtml?tag=cbsnewsSectionContent.13

 

It is related to healthcare, but I have been making this same argument since long before the healthcare bill was ever dreamed up.

And the difference is that one uses means that are authorized by the Constitution, and the other does not.

This is one area where the rule requiring each bill to specify which part of the Constitution it is based on will really help. When trying to sell the bill to the public, Obama and many of the Democrats went out of their way to say that the mandate wasn't a tax. Now that it is threatened, they are trying to squeeze it in under the taxing power. If the bill were required to have specified under which section and clause of the Constitution it was authorized, then it would prevent that sort of bait and switch. You couldn't write the bill based on the Commerce Clause, and then fall back on the taxing power when it looks like you overstepped your authority.

Requiring such a declaration up fron would make it far easier to assess the constitutionality of each bill.

Kimball Kinnison

 

Seems like somewhat of a trivial argument to me, one based on a technicality. Tax or mandate, the end result is about the same.

Well that's just politicians being politicians. Harry Reid says a bunch of hawkish things from time to time to pull his rear end out of the fire, and John McCain's been doing the same lately. I personally wasn't paying too much attention when the Democrats were trying to pass healthcare reform (I just heard Rush Limbaugh and company screaming so I tuned out) but now that I'm looking at it, yeah, the mandate looks like it was a tax to begin with.

 

You might find it an interesting take on this recurring debate, but, as I said, originalism isn't an appeal to tradition.

Appeal to tradition is the claim that simply because something is old, it is better than something new. That is absolutely not the claim with originalism. Originalism is the claim that the meaning of the Constitution doesn't change unless the document itself is amended. Those are two very different claims. It is the claim that there is an established procedure for changing the Constitution, and so other methods are inappropriate to use.

The end result might be the same, but the ends do not justify the means.

Consider, for example, the drinking age. Currently, it is set nationwide at 21. However, Congress didn't just pass a law saying that no one under the age of 21 is allowed to drink alcohol, because they lack the authority to do so. Instead, they made the receipt of transportation funding (which they are authorized to give out) contingent upon a state setting the drinking age to 21. The end result is the same (a drinking age of 21), but one approach is prohibited by the Constitution, while the other is not (at least under current Supreme Court precedent).

At what point did it become acceptable for public servants to outright lie about the legislation they are passing?

The structure of the mandate isn't the form of a general tax applicable to everyone. If they had raised taxes across the board and then offered a credit for those who have insurance, then your argument would make sense. However, they didn't do that. They instead made it a penalty only on those who do not have insurance. You might argue that it's the same basic effect, but it uses two widely different means to achieve that effect, and the one that they chose is far more constitutionally problematic.

Kimball Kinnison

 

Easy: Around 2001. Earlier than that, but heey...'Mericans have short memories.

 

The point I was making, Kimball, is that legislating from the bench is common. You can see it mostly on the Right, but it's occasionally seen on the Left.

 

Define "legislating from the bench" first.

I would say that both sides are about equally guilty of it. It wasn't the right that led to such rulings as Roe v. Wade, or Kelo v. New London. The right wasn't primarily responsible for the radical shift in Commerce Clause interpretation starting in the 1930s. Rulings like that which essentially rewrote the Constitution have come from the left quite a bit more than just "occasionally".

Kimball Kinnison

 

Yeah those radical left-wing SCOTUS rulings from the 1930's like FINALLY upholding federal child labor laws! Conservatives of that era were SO right about that.

 

Right in which sense? Just because you believe that it was morally right to uphold those laws does not mean that it was legally right.

Consider, for example, the matter of pornography. There are many people who believe that pornography is morally wrong. However, under the Constitution, Congress lacks the authority to do so (as it would violate the First Amendment protections on Free Speech). To those people, the court striking down restrictions on pornography would be morally right, but it would still be legally wrong.

Similarly, if Congress lacked the constitutional authority to pass laws restricting child labor (and it did lack that authority until the Supreme Court vastly expanded the Commerce Clause in the 1930s), then legally the laws were wrong, even if they were morally right.

The courts are supposed to rule based on the legality of the matter, not the morality.

Kimball Kinnison

 

NIAWYC

The Democrats should have specified their Constitutional authority for the individual mandate. It would have avoided all the problems. I mean, if they'd really been honest, the text of the law should've looked something like this.

 

The SCOTUS rulings on child labor laws prior to those passed in the New Deal struck down those passed by Woodrow Wilson in the 19-teens that only set restrictions on child labor on goods to be sold interstate and of course the Constitution does specifically grant the federal government the power to regulate interstate commerce, so those were radically conservative rulings in my view. Are you saying child labor laws don't insure domestic Tranquility or promote the general Welfare?

 

It doesn't matter whether or not the laws "insure domestic Tranquility" or "promote the general Welfare". Why? Because those phrases come from the Preamble to the Constitution, and the Preamble doesn't grant any powers to Congress to pass laws. The powers of Congress are outlined in Article I Section 8.

While Article I Section 8 does mention the general welfare, it doesn't say that Congress has the power to pass any law it wants to promote the general welfare. It only says that Congress has the power to lay and collect taxes to provide for the general welfare (in what is referred to as the Taxing and Spending Clause). That isn't, however, a general grant of authority to do whatever Congress wants in the name of the "general welfare". They are limited only to taxation and spending of tax revenues.

As for interstate commerce, the Commerce Clause was understood to only give Congress the power to regulate the actual act of commerce (i.e. the transportation of goods or the providing of services) across state lines. The original goal of that clause was to prevent states from erecting trade barriers within the US by taxing products brought in from out of state. The entire idea that it also allowed Congress to regulate anything even tangentially related to such commerce, or that might conceivably move in interstate commerce, wasn't adopted by the Supreme Court until the 1930s as well.

Kimball Kinnison

 

I understand that the conservative interpretation of the Constitution says the federal government can't do anything not specifically referenced in it, I just hope you do too. James Madison fought against the word "expressly" being in the 10th Amendment and won, if you choose to ascribe any significance to that. The Constitution specifically allows the federal government to do certain things, specifically prohibits it from doing others, and is otherwise up to interpretation. My favorite line about the Constitution is that when it passed nearly everybody agreed it was a perfect document and nearly no one agreed on what it meant. And that was describing the people who drafted and signed onto the damn thing.

 

Marshall was an activist judge! Damn that commie John Adams for appointing him.

 

Indeed!

 

Bringing this back to the original topic, Michele Bachmann is now talking about how the Founding Fathers had a dream for diversity (Dear God, this is like she learns American history from kids' TV. I can cite examples. Captain Planet and Power Rangers come to mind.), and these same men abolished slavery. (Never mind that slavery was abolished almost a century later.)

 

Yeah, it's one thing to have a rarely-seen or new interpretation of historical events, and another to be flat-out wrong. Many of the Founding Fathers wrote anti-slavery sentiments in private letters, journals, and the like. That is true. But they did so while owning slaves and only freeing them upon their deaths if at all.

I've seen one commenter defending Bachmann by saying the 3/5 compromise was "meant to slow the growth of slavery in the South". That's just...just...



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