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

Paf Dvorak notmyname at thatswaytoomuch.info
Wed Jan 2 00:06:02 MST 2013

At 01:50 AM 1/2/2013 -0500, John A. Quayle wrote:
>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!

Try actually reading the article rather than skimming why dontcha?

>>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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Paf Dvorak

notmyname at thatswaytoomuch.info 
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