The Fallacy of Strict Constructionism

Strict Constructionism is the name given to conservative judicial philosophy in the United States and given lip service by Conservatives regardless of their actual preferences in judicial decisions. It correctly posits the Constitution as the ultimate guide/constraint on public policy by all three branches of government, and insists that the "plain meaning of the text" should guide any questions regarding the application of the Constitution to public policy questions. In cases where the meaning of the text is open to question, we should be guided by the "Original Intent" of the Framers, as known through the historical documents of the time, particularly the Federalist Papers and James Madison's notes from the Constitutional Convention.

(image from PBS.ORG)

This doctrine is based on a number of fallacies, the most important of which is the assumption that the Constitution was ever intended to be some sort of "sacred writ" immune from interpretation.

The Constitution was (and remains) an explicitly POLITICAL document, in that it was written as it was with the intent of garnering sufficient political support to insure its ratification. When the Framers couldn't garner enough consensus in their ranks regarding a particular topic, they had recourse to a heirarchy of tactics in writing text that was acceptable to a sufficient number of delegates.

As a first resort, they would compromise. We see this in "the great compromise" which resulted in the creation of a bicameral legislature. We also see it in the frequently misunderstood 3/5ths compromise.

(image from the B.S. Report)

However, the Framers frequently couldn't compromise, either. In such cases, they would intentionally leave the language of the Constitution vague. An example of this intentional vagary can be seen in the tension between the President's role as "Commander in Chief" and the enumerated powers of Congress over the military. The "plain language" of Article I gives control of the military budget to Congress. However, the "plain language" of Article II makes the President the final authority regarding military operations. Can Congress prevent a military operation by refusing to fund it? Can the President order a military operation without obtaining a Congressional appropriation?

We don't know what the Framers thought about this, because the "Framers" disagreed on the subject. The "original intent" of the Framers was different from faction to faction. Consequently, the determination of these questions has been left to 1) the Supreme Court, which has frequently refused to intervene in disputes between the other two branches and 2) established precedent. In the example of military authority, the relevant precedent was set by Theodore Roosevelt. When Congress refused to appropriate money to send "The Great White Fleet" on a show-the-flag tour of the world, Roosevelt ordered them to sail halfway round the world. Congress then had to appropriate enough money to get the fleet back to the United States, completing the circumnavigation. 3) Clarifying legislation, such as the War Powers Act, which every subsequent President has insisted is unconstitutional.

 (image from kirkwoodk12.mo.us)

On certain issues, the Framers couldn't compromise, and neither side would tolerate vague language regarding the issue. In such cases, the Framers would insert both mutually contradictory directives in the Constitution, so that each side could point to a particular provision and claim victory. The best known example of this is the flatly irreconcilable vision of Federal power made in the "necessary and proper" clause in Article I, Section 8, and the 10th Amendment.

In cases where the Framers deliberately tried to have it both ways, the Supreme Court has been stuck trying to untangle the mess. The best example of this is the case of McCullough v. Maryland, where the Supreme Court explicitly rejected the idea that Congress was limited to those powers explicitly granted to it in Article I section 8, (with all other powers being reserved to the States) and instead embraced a more expansive view of Federal power based on the idea of "implied powers", i.e. powers the Feds can safely be assumed to have simply because governance is impossible without them. Subsequent Supreme Court decisions have extended and reinforced this view, and constitute a complete refutation (refudiation?) of the central tenet of the Tea Bagger view of Federal power.

(Sorry, I couldn't resist.  Image from daemonsbooks.com)

Finally, when the Framers couldn't compromise, couldn't fudge, couldn't agree to have it both ways...

they simply ignored the issue. The best example of this is the question of slavery, both in new states and in the free states. This particular tactic lead us into the Civil War.

Another hole in the strict constructionist view of the Constitution is the fact that the Framers themselves explicitly repudiated the doctrine. James Madison refused to make his notes from the Constitutional Convention public for two decades, because he didn't want them being used to determine "original intent" in interpreting the Constitution. George Washington didn't believe the Constitution would remain in effect more than 20 years or so. And Thomas Jefferson (more properly viewed as a "Founding Father" than as a "Framer" explicitly disavowed the original intent doctrine in a letter he wrote to Madison in 1789, in which he asserted "...the earth belongs in usufruct to the living: that the dead have neither rights nor powers over it."

Any appeal to the original intent of the framers is contrary to the original intent of the Framers.

(image from visitingdc.com)

Conservatives will object to my arguments on the basis of "consequence" (or, the fallacy of the slippery slope). If the meaning of the Constitution is open to interpretation, what keeps any potential tyrant from deciding the Constitution allows him to become dictator?

The answer is obvious. It is not the responsibility of dead men to protect us from tyranny, it is our own responsibility. The dead men have given us the best possible guidance in doing so, but that guidance consists of hints, general principles and precedent. They have not given us a sacred document that must be read according to the "jot and tittle" standard applied by crazy fundamentalists to the Bible.

(image from vaticanassassins.org

Finally, the whole notion of judicial conservatism is merely a political slogan designed to delegitimize progressive judicial decisions. Conservative jurists are every bit as activist as liberal jurists, as is shown by the Supreme Court's recent decisions in Citizens United and the lifting of Chicago's gun ban.

When you overturn 200 years of stare decisis, you're a fucking activist.

(image from enormousthrivingplants.blogspot.com

In case I wasn't clear...

in my post on financial bubbles, let me eliminate all ambiguity.  


"Capitalism", as practiced in the United States, and most of the developed world is fundamentally corrupt at its core.  Its successful practitioners almost invariably lie, deceive, mislead, misrepresent, bully, threaten (both tacitly and explicitly), bribe and steal.


The above behaviors are carried out, over and over again, in the course of daily business.  It is done as part of routine business operations, and it takes place as part of dominance behaviors having nothing to do with business operations.  This behavior is carried out by a particular subculture to whom we may refer as "Commercial Elites".  The behavior itself is a form of coercion, in that it leverages asymmetries in power between parties in a transaction in such a way as to cause the weaker party to act in ways it would not otherwise have acted.  Such coercion may take the form of a bribe rather than a threat.

(image from candlemaking.com)

Commercial Elites are no more innately evil than any other identifiable subgroup of our species.  But they have "power", in the sense that they can impel behavior in others that would not otherwise be present.  And, like any other group of human beings with power, they use that power to influence what we are told are purely "market" transactions.  


Every elite will promulgate an ideology (often a religion) that legitimates both their greater power and the use of that power to further their own interests.  Commercial Elites promote a particular type of Capitalism that is excessively deferential to those elites, that exalts its practitioners to the status of heroes, and that defends the privileged position of Commercial Elites by predicting catastrophic economic consequences should their behavior be moderated.

(image from tree-hugger.com)

It would be a mistake to conflate coercive business behavior with crime.  Lots of utterly sleazy business transactions  are perfectly legal.  They are legal because Commercial Elites invest trivial sums of money (by their standards) in the campaigns of politicians.  The fact of their legality is itself a product of the power of Commercial Elites.  But of course, there's plenty of criminal behavior, too.

It would also be a mistake to conflate every single business person with the coercive subset of that group.  I have very little experience interacting with this group, so you should ignore my estimate that no more than 40% of them are actively corrupt (in the moral rather than legal sense).  But many, many more members know about coercive business practices and stay silent. 

And of course, any subset of humanity is as corrupt as Commercial Elites.  But lacking power, their corruption lacks specific, obvious national consequence.

(image from silive.com)

"Capitalism", (by  which I mean the practice of Commerce as it is carried out in the United States today) has been successfully legitimized in the minds of the American mass populace by  associating it with such potent nationalist symbols as "liberty", the "founding fathers", and "rugged individualism" despite having no relationship to any of those things.  This makes attempts to moderate the behavior of Commercial Elites through public policy processes inherently difficult.

"Capitalism" (much like Marxism) has also been legitimized by claims that its outcomes are somehow rational, or scientific, or objective.  And in fact, one can imagine a world where demand and supply are always moderated by price and price only.

(image from freecomputerwallpaper.com)

It has been said so often that it is a cliché; the "market" is a purely intellectual construct, an abstraction employed because of its utility both descriptively and predictively...


and then, having covered their intellectual asses, the Capitalism Apologists promptly reify the market, citing the "efficiency" of an admitted intellectual abstraction in defending existing supply and pricing arrangements.  But those existing arrangements are not typically arrived at through the beautifully meshed operations of supply and demand mediated by price.  So-called market outcomes are primarily the result of power differences between the parties in an transaction. 

(image from activewin.com)

Capitalism is also cited as the primary causal variable in contemporary American prosperity.  This assertion calls for two responses...


the extent of American prosperity is massively overstated.  And Americans cannot internalize that fact beyond a vague anxiety about their personal circumstances..  We are not the 
richest country in the world.  We don't have the best healthcare in the world (if by "we" you mean most Americans).  We don't have the most leisure time in the world.  We don't have the best education system in the world.  We are a top 10 country, not number 1.  But if you can convince people that we are number 1 because of an almost religiously fundamentalist devotion to practicing economic activity in a way that defers to your personal interests....


that turns out to be an effective tactic.


American prosperity is not due to "Capitalism". (Again, as it's practiced here.)  American prosperity, such as it is, is a complex phenomenon.  Like all complex phenomena, it is multi-causal and changes over time.  But here's a striking relationship...  the public policies advocated by Capitalism apologists don't seem to have resulted in greater prosperity for the American people, despite their promises.  


It is claimed that Capitalism takes advantage of the particular expertise of private industry, but in fact, our so-called "Captains of Industry" are no more competent (just as they are no less moral) than any other subset of humanity.  There are smart business people, and there are business people that are astonishingly dumb, in about the same proportion you'd find among teachers, or cops, or government bureaucrats.  Furthermore, the relationship between competence and ultimate success is tenuous at best.

(image from solidprinciples.com.  Really.)

Ideologies are programmatic.  They advocate behaviors which, it is promised, will result in certain outcomes.  But, the public policies advocated by apologists for the American practice of Capitalism don't give us the outcomes the apologists predict.  Their supply-side tax cuts don't result in economic growth beyond the anemic Keynesian effect one would expect.  Their massive deficits don't magically vanish under a "rising tide" of economic growth that always comes in weaker than they promise.  And their fanatical deregulation inevitably empowers Commercial Elites to employ ever more coercion against those with whom they transact business.

The benefits which derive from American Capitalism have been grossly exaggerated.  The economic and social costs of regulating the behavior of Commercial Elites has been exaggerated even more.


Commercial Elites will ruthlessly exploit those with whom they do business to the extent that the existing regulatory environment allows them to do so.  As it is presently constituted, the regulatory environment of the United States fails to deter coercive business practices, including practices blatantly illegal under current law.  


Increasing regulatory restraint on Corporate Management will not make us poor.  It's not anathema to the principles of the Founding Fathers.  And it's the only defense we have against our rapacious exploitation by a privileged, hypocritical elite.

It occurs to me that I still haven't watched "Capitalism, a Love Story" by Michael Moore.  I think it's on pay-per-view...

certainly, the Penguins don't have any games scheduled.  

From Thucydides

Cleon (the speaker) was a contemporary of Thucydides.  In fact, I believe he was actually present for this speech.  

..."What you do not realize is that your Empire is a Tyranny over subjects who do not like it and who are always plotting against you; you will not make them obey you by injuring your own interests in order to do them a favor; your leadership depends on superior strength and not on any goodwill of theirs."...

This is a form of the 'peace through strength" argument, or deterrence, if you prefer.

...that lack of learning combined with a sound common sense is more helpful than the kind of cleverness that gets out of hand, and that as a general rule states are better governed by the man on the street than by intellectuals. These are the sort of people who want to appear wiser than the laws, who want to get their own way in every general discussion, because they feel they cannot show off their intelligence in matters of greater importance, and who, as a result, very often bring ruin on their own country. But the other kind - the people who are not so confident of their own intelligence - are prepared to admit that the laws are wiser than they are...

Anti-intellectualism didn't originate with Sarah Palin, either.

People are fond of claiming that "You can't change human nature." I'm a Behaviorist, I think people can be socialized into doing anything. But in the absence of contrary socialization, memes, mores and values persist indefinitely.

Incidentally, Diodotus' response to Cleon demonstrates the same phenomenon. His refutation of the deterrence value of execution holds up perfectly well 2500 years later.



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