[Rushtalk] New Media Push: "Give Up" on Constitution

John A. Quayle blueoval57 at verizon.net
Tue Jan 1 23:50:32 MST 2013

At 12:34 AM 1/2/2013, Paf Dvorak wrote:
>At 11:33 PM 1/1/2013 -0500, John A. Quayle wrote:
>>Godfather Politics
>>Media Push: "Give Up" on Constitution
>Rather than allowing this above "Godfather" to 
>do our thinking (or lack thereof) for us, we'd 
>do well to read this well thought out and correct op-ed for ourselves:

         Constitutional BONDAGE?!? Mein himmel!! 
Ach tu lieber! Even with that so-called 
"bondage", the progressive/commies are eating us 
alive! Do you have any flippin' idea what there'd 
be without the Constitution?!? It's clear that 
this "well-thought-out" piece was written by a complete imbecile!

>Op-Ed Contributor
>Let’s Give Up on the Constitution
>For Op-Ed, follow 
>and to hear from the editorial page editor, 
>Andrew Rosenthal, follow <https://twitter.com/#%21/andyrNYT>@andyrNYT.
>AS the nation teeters at the edge of fiscal 
>chaos, observers are reaching the conclusion 
>that the American system of government is 
>broken. But almost no one blames the culprit: 
>our insistence on obedience to the Constitution, 
>with all its archaic, idiosyncratic and downright evil provisions.
>Consider, for example, the assertion by the 
>Senate minority leader last week that the House 
>could not take up a plan by Senate Democrats to 
>extend tax cuts on households making $250,000 or 
>less because the Constitution requires that 
>revenue measures originate in the lower chamber. 
>Why should anyone care? Why should a lame-duck 
>House, 27 members of which were defeated for 
>re-election, have a stranglehold on our economy? 
>Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
>Our obsession with the Constitution has saddled 
>us with a dysfunctional political system, kept 
>us from debating the merits of divisive issues 
>and inflamed our public discourse. Instead of 
>arguing about what is to be done, we argue about 
>what James Madison might have wanted done 225 years ago.
>As someone who has taught constitutional law for 
>almost 40 years, I am ashamed it took me so long 
>to see how bizarre all this is. Imagine that 
>after careful study a government official ­ say, 
>the president or one of the party leaders in 
>Congress ­ reaches a considered judgment that a 
>particular course of action is best for the 
>country. Suddenly, someone bursts into the room 
>with new information: a group of white 
>propertied men who have been dead for two 
>centuries, knew nothing of our present 
>situation, acted illegally under existing law 
>and thought it was fine to own slaves might have 
>disagreed with this course of action. Is it even 
>remotely rational that the official should 
>change his or her mind because of this divination?
>Constitutional disobedience may seem radical, 
>but it is as old as the Republic. In fact, the 
>Constitution itself was born of constitutional 
>disobedience. When George Washington and the 
>other framers went to Philadelphia in 1787, they 
>were instructed to suggest amendments to the 
>Articles of Confederation, which would have had 
>to be ratified by the legislatures of all 13 
>states. Instead, in violation of their mandate, 
>they abandoned the Articles, wrote a new 
>Constitution and provided that it would take 
>effect after ratification by only nine states, 
>and by conventions in those states rather than the state legislatures.
>No sooner was the Constitution in place than our 
>leaders began ignoring it. John Adams supported 
>the Alien and Sedition Acts, which violated the 
>First Amendment’s guarantee of freedom of 
>speech. Thomas Jefferson thought every 
>constitution should expire after a single 
>generation. He believed the most consequential 
>act of his presidency ­ the purchase of the 
>Louisiana Territory ­ exceeded his constitutional powers.
>Before the Civil War, abolitionists like Wendell 
>Phillips and William Lloyd Garrison conceded 
>that the Constitution protected slavery, but 
>denounced it as a pact with the devil that 
>should be ignored. When Abraham Lincoln issued 
>the Emancipation Proclamation ­ 150 years ago 
>tomorrow ­ he justified it as a military 
>necessity under his power as commander in chief. 
>Eventually, though, he embraced the freeing of 
>slaves as a central war aim, though nearly 
>everyone conceded that the federal government 
>lacked the constitutional power to disrupt 
>slavery where it already existed. Moreover, when 
>the law finally caught up with the facts on the 
>ground through passage of the 13th Amendment, 
>ratification was achieved in a manner at odds 
>with constitutional requirements. (The Southern 
>states were denied representation in Congress on 
>the theory that they had left the Union, yet 
>their reconstructed legislatures later provided 
>the crucial votes to ratify the amendment.)
>In his Constitution Day speech in 1937, Franklin 
>D. Roosevelt professed devotion to the document, 
>but as a statement of aspirations rather than 
>obligations. This reading no doubt contributed 
>to his willingness to extend federal power 
>beyond anything the framers imagined, and to 
>threaten the Supreme Court when it stood in the 
>way of his New Deal legislation. In 1954, when 
>the court decided Brown v. Board of Education, 
>Justice Robert H. Jackson said he was voting for 
>it as a moral and political necessity although 
>he thought it had no basis in the Constitution. The list goes on and on.
>The fact that dissenting justices regularly, 
>publicly and vociferously assert that their 
>colleagues have ignored the Constitution ­ in 
>landmark cases from Miranda v. Arizona to Roe v. 
>Wade to Romer v. Evans to Bush v. Gore ­ should 
>give us pause. The two main rival interpretive 
>methods, “originalism” (divining the framers’ 
>intent) and “living constitutionalism” 
>(reinterpreting the text in light of modern 
>demands), cannot be reconciled. Some decisions 
>have been grounded in one school of thought, and 
>some in the other. Whichever your philosophy, 
>many of the results ­ by definition ­ must be wrong.
>IN the face of this long history of 
>disobedience, it is hard to take seriously the 
>claim by the Constitution’s defenders that we 
>would be reduced to a Hobbesian state of nature 
>if we asserted our freedom from this ancient 
>text. Our sometimes flagrant disregard of the 
>Constitution has not produced chaos or 
>totalitarianism; on the contrary, it has helped us to grow and prosper.
>This is not to say that we should disobey all 
>constitutional commands. Freedom of speech and 
>religion, equal protection of the laws and 
>protections against governmental deprivation of 
>life, liberty or property are important, whether 
>or not they are in the Constitution. We should 
>continue to follow those requirements out of respect, not obligation.
>Nor should we have a debate about, for instance, 
>how long the president’s term should last or 
>whether Congress should consist of two houses. 
>Some matters are better left settled, even if 
>not in exactly the way we favor. Nor, finally, 
>should we have an all-powerful president free to 
>do whatever he wants. Even without 
>constitutional fealty, the president would still 
>be checked by Congress and by the states. There 
>is even something to be said for an elite body 
>like the Supreme Court with the power to impose 
>its views of political morality on the country.
>What would change is not the existence of these 
>institutions, but the basis on which they claim 
>legitimacy. The president would have to justify 
>military action against Iran solely on the 
>merits, without shutting down the debate with a 
>claim of unchallengeable constitutional power as 
>commander in chief. Congress might well retain 
>the power of the purse, but this power would 
>have to be defended on contemporary policy 
>grounds, not abstruse constitutional doctrine. 
>The Supreme Court could stop pretending that its 
>decisions protecting same-sex intimacy or 
>limiting affirmative action were rooted in constitutional text.
>The deep-seated fear that such disobedience 
>would unravel our social fabric is mere 
>superstition. As we have seen, the country has 
>successfully survived numerous examples of 
>constitutional infidelity. And as we see now, 
>the failure of the Congress and the White House 
>to agree has already destabilized the country. 
>Countries like Britain and New Zealand have 
>systems of parliamentary supremacy and no 
>written constitution, but are held together by 
>longstanding traditions, accepted modes of 
>procedure and engaged citizens. We, too, could draw on these resources.
>What has preserved our political stability is 
>not a poetic piece of parchment, but entrenched 
>institutions and habits of thought and, most 
>important, the sense that we are one nation and 
>must work out our differences. No one can 
>predict in detail what our system of government 
>would look like if we freed ourselves from the 
>shackles of constitutional obligation, and I 
>harbor no illusions that any of this will happen 
>soon. But even if we can’t kick our 
>constitutional-law addiction, we can soften the habit.
>If we acknowledged what should be obvious ­ that 
>much constitutional language is broad enough to 
>encompass an almost infinitely wide range of 
>positions ­ we might have a very different 
>attitude about the obligation to obey. It would 
>become apparent that people who disagree with us 
>about the Constitution are not violating a 
>sacred text or our core commitments. Instead, we 
>are all invoking a common vocabulary to express 
>aspirations that, at the broadest level, 
>everyone can embrace. Of course, that does not 
>mean that people agree at the ground level. If 
>we are not to abandon constitutionalism 
>entirely, then we might at least understand it 
>as a place for discussion, a demand that we make 
>a good-faith effort to understand the views of 
>others, rather than as a tool to force others to 
>give up their moral and political judgments.
>If even this change is impossible, perhaps the 
>dream of a country ruled by “We the people” is 
>impossibly utopian. If so, we have to give up on 
>the claim that we are a self-governing people 
>who can settle our disagreements through mature 
>and tolerant debate. But before abandoning our 
>heritage of self-government, we ought to try 
>extricating ourselves from constitutional 
>bondage so that we can give real freedom a chance.
>Michael Seidman
>Paf Dvorak
>notmyname at thatswaytoomuch.info
>Rushtalk mailing list
>Rushtalk at csdco.com
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