[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:
>>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!
>Lets Give Up on the Constitution
>By LOUIS MICHAEL SEIDMAN
>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 nations 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 Amendments 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 Constitutions 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 presidents 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 cant 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.
>notmyname at thatswaytoomuch.info
>Rushtalk mailing list
>Rushtalk at csdco.com
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