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of the text is open to question, we should be guided by the "Original Intent" of the Framers, as known through the historical documents of the time, particularly the Federalist Papers and James Madison's notes from the Constitutional Convention.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

The illegal immigration debate.

This is a very, very tough issue for me...

I start with the postulate that the only legitimate function of government is to promote the welfare of its citizens.  This is something at which they typically fail, but in my view it's the only thing they ought to be doing.

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(image from photobucket.com)

If this is the case, then our immigration policy should be clear.  We should only admit those immigrants likely to enhance the general prosperity of our economy.  That would seem to consist of workers currently being admitted as temporary workers under H1 visas.  If we can get them to stay, we should.  They tend to be highly paid, and by definition they have skill sets for which there's constant demand, even in this economy.  The argument has been made that this has the effect of depressing wages in the nursing and tech industries.  By and large, I'm willing to allow that, as providing a more generalized benefit to the country than the cost it exacts from a subgroup of the nation's citizens.  I think the health of the whole country suffers when there's a nursing shortage.

 (image from eduinreview.com)

This logic does not apply to H2 visas, nor does it apply to illegal immigrants.  The effect of increasing the labor supply in the fields of agriculture or construction or hospitality will again be to depress the average wage in those fields.  But this increased productivity benefits a far more narrow segment of the citizenry than is the case with nurses or programmers.  Meanwhile, the number of people whose wages are impacted is much larger in the case of low-skill, low wage jobs.  Instead of the costs being born by a small segment of the middle class, the costs are born by the working and lower classes.  And the difference between $8 and $12 per hour is MUCH greater than the difference between $20 and $30 per hour.

It is constantly claimed that "Americans don't want these jobs."  That is demonstrably untrue.  Americans don't want those jobs at that particular rate of pay.  If you pay a busboy $12 an hour, you'll have a line of American applicants stretching into your dining room.  If you can't afford to pay a living wage to your employees, you need to raise your prices.  And, I want to see your books, because you're doing something wrong.

On the other hand...

it's awfully hard for me to justify telling Mexicans that they can't look for work in parts of our country that we stole from them, in an unjustifiable war of aggression aimed at creating more slave states.

There's no justice...

My son and I are re-watching HBO's Carnivale.  The show originally ran for two season's, between 2003 and 2005.

I loved it at the time, and seeing it again reminds me of it's brilliance.  Some things I loved at the time (Hill Street Blues, Babylon 5) don't hold up well.  I don't know if I've changed or the times have changed.  I do know that Highlander is now unwatchable.  I can't believe that Christopher Lambert is dating Sophie Marceau.  In fact, I see it as evidence of some sort of nefarious conspiracy...

(image from la-star.com)

Carnivale however, holds up brilliantly.  It may be the most terrifying thing I've ever watched, and I'm including Twin Peaks in my list of comparisons.  Of course, Twin Peaks was on broadcast...

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(image from John Kenneth Muir, on wordpress,com)

and we're not talking clumsy, bludgeoning, slasher flick terrifying.  We're talking quiet, disorienting, creepy terrifying.  The slasher flick, unless very well done, either bores me or merely grosses me out.  Carnivale combines the grinding, hopeless despair of the Dust Bowl with the savagery of ignorant poverty.  It throws in the voyeuristic creepiness of physical deformity, and contrasts it with the mundane details of the daily life of the exhibits in a freak show.  It adds the menace of a supernatural struggle between good and evil which only rarely manifests itself openly, but is at the same time ubiquitous.  Carnivale's opening credits scare the living hell out of me, and they're simply clips of news footage from the era.

  (images from btvision.com, starpulse.com & ign.com)

It was too good to last, of course.  HBO canceled it after two seasons.  Just like Deadwood.  Just like Rome.  The difference is that I know how Deadwood ended; it's a matter of verifiable historical fact.  And I, Claudius is essentially the sequel to Rome, despite having been filmed 30 years earlier.  But I will never, ever know how Carnivale ends.  I think television interruptus  is even more frustrating than the other kind...

it never goes away.

 

Media Goofiness...

It's been awfully frustrating to watch the criticism of President Obama's reaction to the oil spill.  Right-wing talk radio has been pushing the "Obama's Katrina" meme for 6 weeks now, but I really don't resent that any more than I do any of their other stupidity.  Jim Quinn for example, is a birther and a conspiracy fantasist so nutty that he was one of those claiming that GM franchises were being closed because they were owned by Republican campaign contributors.  His co-host was warning us that the health-care bill was evidence that the Rapture was imminent, back when the debate was at its height.  So they needed a new schtick to distract their listeners from the fact that Jesus didn't return and prevent passage of the bill they were promising would be defeated.

(image from catholic-resources.org)

Limbaugh and Beck both took a run at blaming Obama for the spill, but have been less persistent on the topic.  Beck is using every available second of his show to flog "his" new novel (apparently he used a ghost-writer, or co-author or something) and so has less time.  Limbaugh pushed it harder for at least a couple of days, but seems to have dropped it recently. He may have started up again, without my knowing it.  (I can only take so much of these guys).

(image from wordpress.com)

Less forgivable is money-honey Maria Bartiromo.  This morning, I aspirated coffee as this shameless Wall Street apologist asserted that the Gulf oil spill was the fault of the government.  Asked if BP bore any of the responsibility, she replied "If the government can't prevent this, then why am I paying taxes?"

Such a question calls for so many replies it's hard to get them out in any coherent fashion, but here's my best shot....

in the first place, you DON'T pay your taxes.  You shelter income, you employ people who's only function in life is to minimize your tax obligation, and those employees deliberately obfuscate, mislead and misinterpret the law so as to minimize the taxes you pay.  This country has given you everything you have, and you repay it by ripping it off of every penny you dare.  You're a rotten citizen.  And whiney.

In the second place, you and your ilk WROTE the laws which which prevented government from adequately regulating your rapacious buddies.  You CANNOT advocate reduced government regulation and then bitch about the inadequacy of regulation.  Okay, I guess you can do that, but doing so makes it absolutely clear that you have no intellectual credibility, and that every word that leaves your mouth is nothing more than the dishonest squirming of a crook whose crimes have led to catastrophe.  You're a lousy American.

(image from clipartof.com)

I feel better now...

it's been instructive to watch those critics of Obama's handling of the spill who aren't being paid to lie and slander.  When cornered with the question, "What is it you think he should do that he's not doing?", they're reduced to faulting Obama's "lack of emotion", or "failure to lead".  And then, they call him unpresidential for using a variation of the term "kick ass".  (NPR on 6/9)

They've got short memories.  We HAD a president who placed a premium on  image over substance.  He was prone to saying macho emotional bullshit like "Bring it on!" and "Lock and load!"  He was also the single worst president since James Buchanan.   I didn't vote for Obama because I wanted him to play the role of president in a melodrama.  I voted for him because he advocated sensible public policies which are likely to serve the country's long term interests.  

What kind of childish expectations does Chris Matthews have of our President?  Does he want to sieze BP's assets?  Why is he so obsessed with Obama phoning Tony Hayward?  What would that accomplish?  Would it clean off one additional pelican?  Would it result in a faster payment of damages by BP?

 

 (image from aug.edu)

There ARE things the administration could be doing better.  I'd like the National Guard to be issued orders that they are not to prevent journalists from photographing damage. (I suspect Bobby Jindal's behind their orders to hinder journalists)  I'd like to see the Feds repair all that boom lying uselessly on the beach, and then bill BP for the costs.

But the idea that this catastrophe is ANYTHING other than the inevitable result of the obsequious pandering to big oil advocated by the "drill baby drill" crowd is nothing more than a politically motivated attempt to create a false equivalency between the current president and the hapless, clueless amateur who preceded him.  The "liberal" media needs to quit buying their bullshit.

This is going to sound intensely weird...

but I had an epiphany this morning.  No one squeamish should read more...

(landcareresearch.co.nz)

Cockroaches are repulsive creatures.  Hideous.  Dirty.  I only had one place where they were a problem...

(homesweethovel.com)

Rats are worse.  Bugshit is less repulsive than ratshit, and it wasn't a swarm of angry roaches that devoured Willard.

(img2.timeinc.net)

Besides, roaches are the third string, if the rats screw it up.  The rats know they're next up; they're pacing the sidelines, waiting for the call, hoping we go down...

(Did Zelazny say that somewhere?)

I should say that I can respect them while loathing them, just as with Alex Ovechkin.  I killed a rat once.  It took two guys and ten minutes and a steady rain of blows just to kill the thing, and two hours prior to that to catch it in a three room apartment.  I respect rats on a very Darwinian level. There aren't very many ecological niches they can't  exploit.

But it hit me this morning...

rats and roaches aren't our competitors.  They're not clever parasites, using our primate-shit-where-you-live  filthiness against us.  They aren't  the enemy...

(fileshack.com)

They're the emergency food supply.

I'd try agriculture first, of course.

Now this guy's a leader...

and without a doubt the greatest President of my lifetime so far (I remain ever hopeful).

Can you imagine George W. Bush doing this? Did Reagan ever do this?

A persistent label the Republicans have tried to pin on Obama is "weak". But he walked into a room full of his most bitter political enemies, and went eye-to-eye with them for 75 minutes.

The Republicans know perfectly well that they don't have anyone in the Congressional Party who can match Obama fact for fact. They don't have anyone who can match his charisma.

That's why there were no cameras at this event; Obama is better on camera than any of them. They got their clocks cleaned at the healthcare summit, their State of the Union responses were pitiful...

and of course, Obama has the objective truth on his side. That's a tough headwind.

I suppose it's possible to disagree with this President on policy. Inflation concerns are understandable, if misguided at this point in the business cycle. I'd be happier with a bigger budget for NASA..

But this President has killed more terrorists than Bush, inherited an uglier economy than did Reagan, convinced Pakistan to take aggressive action against the Taliban and risked the ire of an important constituency by pushing Israel on the settlement issue.

The Republicans should at least give him credit for having balls.

in reference to: Spirited Exchanges at Senate Republican Lunch With Obama - NYTimes.com (view on Google Sidewiki)

Not a word...

from Glenn Beck about the Pennsylvania 12th district.  Unless I missed it.  Instead he's reading the text of Arizona's anti-immigration bill.  I'm not sure that's going to be a ratings winner.  I suspect the text reading is a back-up plan; I'm sure he'd rather be crowing about the Republican capture of the late (corrupt) John Murtha's seat.  But things didn't work out that way...


still, it might force Limbaugh to work a little harder.  The portion of his program I heard yesterday was an almost word for word rip-off of Beck's program from two days ago.  Rush may have ratings envy.  Rush did go off the Beck script when the headline came across the wire that Germany had banned naked short selling; he immediately started screaming about European Socialists strangling efficient capital markets with their claw fingered regulations, and then attempted to explain to his listeners precisely what was meant by "naked short selling"...


only to stumble to a halt when he realized he had no idea what it meant.  After a quick commercial, he came back on with an accurate explanation of what it meant, kind of half-conceded that maybe this wasn't a catastrophe after all, and quickly got back on script.


The "conventional wisdom" has been that the country is experiencing an anti-Obama backlash.  The supporting evidence has been poorly attended tea-bagger rallies and Scott Brown's win in Massachusetts, combined with polling data gleaned from a population so disinterested that the views they "express" to a pollster will change with the first contradictory nudge....


ROTFLMAO.....


Beck has apparently written a novel, about a 100 year old plot to destroy America.  I wonder where he got the idea?


Anyway...


any discussion of the "mood" of the country can be dismissed.  The country has no mood, except for economic anxiety.  We can safely dismiss any polling data involving the fall elections until September, at the earliest.  Apocalyptic claims about Republicans retaking the House may indeed turn out to be accurate, but they are equally likely to prove wrong.  The determining factor in the fall elections is going to be the health of the economy, with secondary factors like money, organization and local issues explaining the rest of the result.


The only conclusion that can be drawn from last night's results is that it might not have been a good idea for the RCCC to drop a million bucks on the PA 12th, where there's a 2 to 1 registration advantage for the Democrats.  And even that conclusion is tentative...


the same candidates are going to face off in the fall.