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Post-Constitutional America

This fascinating exchange between Paul Cella and Lydia McGrew delivers much for conservatives to ponder. Consider Paul's remarks:

The main thing between you and me, Lydia, is that I have made my peace with Social Democracy while you have not ...

Right now, and for the foreseeable future, what I want has to pretty much be set aside. There is no plausible arrangement of current-day American politics that gives me what I want.

It seems to me that effective political action must take a different form than insisting on pie-in-the-sky "Roll back the New Deal" Goldwaterism. Effective political action entails, rather, something more like "getting aligned in coalitions arranged to oppose some fatal new innovation," in other words, the conservative position should be the position laid out in The Federalist, supply the defects of democracy by democratic means.

The idea of raising a governing majority to actually roll back the New Deal is quixotic fantasy. Even in the most fiscally conservative moment in recent history, the idea of simply removing all the social democratic infrastructure of the New Deal is not even being broached by GOP politicians. Not even Sen. Rand Paul proposes it.

If Paul's assessment is correct, then American conservatism has a problem - a crisis of identity from which there is no turning back. This was all but inevitable at some point. Any conservatism which attaches itself irrevocably to a specific temporal order or document is not long for this world.

But more importantly, America has a problem: the Constitution is dead. Now what?

The primary value of the Constitution, in my opinion, was not that it made certain Progressivist schemes difficult or unattainable, but that it confined all parties to a process which contained a lot of conservative wisdom. But if our politics no longer depends upon the orderly, intelligible and predictable process imposed by the Constitution; if instead we are merely subject to the wills of competing powers, all of which are quarreling factions of the Left more or less hostile to our goals; if the balance of those powers is arbitrary and, in the end, irrelevant; and if a return to constitutional integrity is truly a practical impossibility, the "quixotic fantasy" Cella believes it to be -- suffice it to say that the survival of post-Constitutional America, in whole or in part, will depend upon post-Constitutional thinking on the part of conservatives.

Comments (157)

What kind of post-constitutional thinking did you have in mind, Jeff?

There's one problem here that goes even deeper, and that is a problem of honesty: You see, our court justices and our Congressmen never say, "The Constitution is dead. Long live whatever we want." No, they usually couch it in some other terms--perhaps the postmodern concept of "the living constitution," for example.

Now, conservatives are bound to be honest if we're to have any integrity at all. We can't just tell lies about the constitution and pretend that it allows us to do things that it doesn't. We've chided the liberals, rightly, for that kind of dishonesty (e.g., that there is a constitutional right to abortion, when there manifestly is not, or that the federal government has the constitutional power to force people to buy health insurance, which it manifestly does not), so we can hardly just announce a post-constitutional America and start doing things that we ourselves know to have exactly the same problem.

Here's some post-constitutional thinking for you.

Clearly the only answer is secession by the conservative states. It's easier to lay a new egg than to glue a broken one back together.

If Paul's assessment is correct, then American conservatism has a problem - a crisis of identity from which there is no turning back. . . . But more importantly, America has a problem: the Constitution is dead.

Just to clarify, I do not think it follows that if my assessment is correct, the Constitution is dead. Nor, in fact, do I believe the Constitution to be dead. I think that the New Deal is part of our Constitution now. So much the worse for us, in many ways.

I also think it a pretty rigid position to take, that the New Deal was by and large an unconstitutional enterprise. In some details, I would argue, it surely was. But the bulk of it was not. Keynesian make-work schemes really do not appear to me to violate the Constitution. Whether labor or capital should be favored in X,Y, or Z industry is a matter the Constitution is silent about. Anti-trust law is a pretty open-ended field from the text of the Constitution.

Now, it is true that the New Deal's promoters and executives most definitely took a view of the Constitution in matters of commerce strongly at odds with the settlement that prevailed before them. But I would not flatter their predecessors as loyal friends of the Constitution either. The Substantive Due Process doctrines that enervated the 10th Amendment had clear precursors in the 19th and early 20th-century jurisprudence granting such legal endurance and might to the business corporation. The "personhood" of the corporation is in many ways stronger than the individual human in a family. This notion was a latter accretion added to our constitutional framework long after the Constitution was written.

When I said "what I want has to pretty much be set aside," I meant it. I want to roll back the substantive due process of the business corporation, favoring proprietorships and partnerships instead; I want to make the global behemoths of finance and industry weaker at law than the local bank or the shop down the street. When an actual person walks into a courtroom, facing the representatives of a corporate "person" headquartered in Geneva, I'd like everyone to know that the latter is at a disadvantage.

That's what I want. Nonetheless, since there is no plausible arrangement of current-day American politics that gives me what I want, I wouldn't think of going around dogmatizing on this subject. Or boasting that because I want to roll back our legal doctrines even farther than opponents of the New Deal I am the truer constitutionalist.

We've chided the liberals, rightly, for that kind of dishonesty (e.g., that there is a constitutional right to abortion, when there manifestly is not, or that the federal government has the constitutional power to force people to buy health insurance, which it manifestly does not), so we can hardly just announce a post-constitutional America and start doing things that we ourselves know to have exactly the same problem.

Well, maybe. The difficulty is that the liberals still want to uphold, by means of smoke and mirrors, the pretense of being bound by the Constitution, and they maintain their charade by employing the traditional language of American constitutionalism. The ethical problem is this: is it wrong to employ the liberal lexicon ourselves, despite its corrupt origins, when the only viable alternatives are largely outside of the American experience? We didn't make the rules, but they are there: are we now to exclude ourselves completely from politics because we don't want to play by them?

If we don't have a Constitution anymore in the originalist sense, what we do have is a system that has developed its own "living" constitution. There is the written Constitution of our founding, and there is the working real-world "constitution" of American democracy and jurisprudence. The question is whether this arrangement is sustainable, intelligible, reformable - whether conservatives should work within our post-Constitutional framework, as Paul Cella suggests (although he may not agree with my terminology), or should agitate for something else.

What kind of post-constitutional thinking did you have in mind, Jeff?

I don't know, this calls for more imagination than I'm generally known for. The easiest options might include:

1. Resignation. Fight policy battles within the system by making tactical alliances here and there. Participate as much as conscience will allow and hope for the best. Maybe we can slow things down a bit. In all likelihood, though, this just means our long march over the precipice will continue.

2. Campaign for a Constitutional Convention. Risky, but it has attractive possibilities.

3. Regional/state secession (thank you, Dr. T.) An unpredictable genie that we might want to keep in the bottle for as long as possible.

4. Retreat from politics and focus on rebuilding the culture.

5. ????

I think that the New Deal is part of our Constitution now. So much the worse for us, in many ways.

Thanks for your clarification, Paul. My sense is that the New Deal is a mixed bag. Some programs were clearly helpful to many suffering people and we can be grateful for that. I'm not one who thinks government has no business creating "make work" programs, if the work is good, and I'm not opposed to social insurance in principle even on a federal level.

But I don't see how the New Deal doesn't blow a hole right through the Constitution, and set a precedent for more of the same.

When you say that "the New Deal is part of our Constitution now", what you mean is that we have a new constitution. Which is fine, but it's a funeral for the old one. Also - I'm not sure anyone has a handle on what the new "constitution" means for this country, where the limits are, what the rules are, what's up for grabs and what isn't.

Jeff, I think that conservative think-tanks and especially pro-bono legal groups often do do what you are talking about. In my opinion they can do this without necessarily losing integrity thereby. To give an example: A pro-bono legal group might take *for the sake of the argument* the doctrine of the incorporation of the bill of rights as a given and might argue therefore that the first amendment rights of a college student (as "first amendment rights" are now jurisprudentially understood given precedents) have been violated by a state university that tries to force the student to act against religious conscience. My article on the Julea Ward case discusses a case of just this sort.

Usually, conservative legal groups work within established precedent just like any other set of lawyers. I don't think this has to mean that they actually believe in the doctrine of the living constitution nor approve of or agree with all the "water under the bridge" precedents that they use in their cases. It's pretty well understood that as a lawyer you use existing precedent in making your case without thereby giving it as your opinion that all of those precedents were rightly decided.

In the area of positive policy, however, things are a lot trickier. For example, trying directly to pass some law at the federal level that is clearly not at all within anything like enumerated Congressional powers simply because we think that would be a good law and would like to see it applied as widely as possible seems to me a lot more problematic. One reason it is problematic is that I think we want to _retain_ the right to argue against, say, Obamacare that it is unconstitutional because it has not one shred nor hint of justification in terms of Congressional powers. If we don't actually consistently believe in any sort of doctrine of enumerated powers, and if we demonstrate that by our advocacy of some other, "conservative" federal law just as questionable on those grounds as Obamacare, that's going to be hard to do. And of course Obamacare is only one example that happens to be on the table right now. The liberals can and will always come up with more. The next thing might be a complete federal takeover of the educational system or the forbidding of home schooling at the federal level, for example.

If the sentence, "The New Deal is part of our Constitution now" means anything, I'm afraid it means an acceptance of the doctrine of the living Constitution. Which, of course, has precisely the consequence that no one can tell "where the limits are, what the rules are, what's up for grabs and what isn't." For example, it is entirely on the cards that the "living and changing Constitution" will "include" a right for homosexuals to "marry" before too long. No reason why it couldn't.

Let me put it a slightly different way: For conservatives to abandon originalism is for conservatives to rob themselves of some very important arguments in some very important areas. For example, at that point there is no _legal_ reason why Roe v. Wade should be overturned as a precedent. The stare decisis position taken in Casey becomes something we have no particular principled legal reason to object to. Indeed, Casey's stare decisis argument was very, very much of the type, "Like it or not, pro-lifers, Roe v. Wade is now part of the constitution. Resign yourselves and accept it. The constitution has changed and now includes this." Imagine that you are given the opportunity to influence a young person who will one day be a justice of the Supreme Court. To abandon originalism is to give up any legal reason that you could give him for overturning Roe. At that point the only thing to do would be to teach him to think of himself, if he were a justice, as a direct Ruler of the People and to rule against Roe for no legal reason whatsoever but merely because he thought it bad policy. Which, to put it mildly and drily, would make it a tad difficult for him to write a convincing opinion for the Court.

So all conservatives must be originalists, Lydia?

If the sentence, "The New Deal is part of our Constitution now" means anything, I'm afraid it means an acceptance of the doctrine of the living Constitution.

When you say that "the New Deal is part of our Constitution now", what you mean is that we have a new constitution. Which is fine, but it's a funeral for the old one. Also - I'm not sure anyone has a handle on what the new "constitution" means for this country, where the limits are, what the rules are, what's up for grabs and what isn't.

It's not like the entire document has been repealed, revised, or rendered utterly inoperative. I think ya'll are really talking a language of scientific precision and absolutism that is not in evidence here.

Consider something like the structure made by Hamilton's various early reports and bills on Credit, Mints, Manufactures, etc. The Constitution does not provide a detailed recipe for finance and debt. Or again, the early Acts of Congress that set up the federal Judiciary. Think of Washington's example as Executive. The questions were wide open, and yet their later influence was in many ways "Constitutional" in nature. I use the capital letter advisedly. Our tradition is more than the Constitution; it is the framework of interpretation around it.

As for Roe, one need not be an originalist to observe its weakness as an argument. You know as well as I do that thinkers in numerous other schools of legal thought admit that it was a poor ruling.

If, mirabile dictu, I ever influence a future SCOTUS justice, I hope I influence him or her on the preciousness of human life, which is prior to all legal or constitutional theories.

It's worth adding: There's no reason why one has to declare some program constitutional in order to choose to fight something else right now. We all have limited time. One could quite easily say, "The programs of the New Deal were unconstitutional expansions of federal power, but right now I'm spending my energy fighting other, newly proposed, and substantively wicked, unconstitutional expansions of federal power." Or one could be spending one's time fighting a local city ordinance, for that matter! There's no reason for us to abandon originalist legal theory in order to make a pragmatic decision not to work actively to roll back this or that program of the New Deal. I myself tend to think that with some of these programs threatening to break the back of our economy in the foreseeable future, this might be a better time than ever to talk about rolling them back for pure policy reasons, but each person makes his own decisions about what to work on. Legal theory to a large extent can swing free of decisions about immediate urgency in policy proposals.

For conservatives to abandon originalism is for conservatives to rob themselves of some very important arguments in some very important areas.

Absolutely. Abandoning originalism would be a disaster on many levels. It would effectively undermine our entire legal system. But it may, after all, still be a fiction - a fiction that helped hold things together for a while but is fast becoming intellectually untenable.

Can conservatives live with a "living constitution"? Yes, I think so, but not without some clearly defined parameters. Given the encouraging mood of the states today, maybe a constitutional convention is the way to go ...

I hope I influence him or her on the preciousness of human life, which is prior to all legal or constitutional theories.

Good luck teaching him to write a convincing opinion, an opinion having both argumentative force and legal integrity, with a living constitutionalist theory.

Most conservatives _are_ or _try to be_ originalists of some sort, Paul. That you aren't is becoming fairly clear. Well, okay, I'm sorry to hear that, but my argument right here is simply that I think this robs you of some important types of arguments in the world of both law and policy. I would like to influence other conservatives to remain originalists.

Jeff, I'm a bit confused. How could it both be a disaster on many levels to abandon originalism while it was also the case that conservatives could live with a living constitution? A constitutional convention doesn't represent a living constitution view. The constitution provides for its own amendment. Originalists have no problem with constitutional amendment. The constitution, then, has _been changed_. It hasn't just osmotically changed over time, as in the living constitution view. It means one thing at one time and another thing at another time *because of* the amendment that took place.

Not that I would have any faith in our present country to write a good new constitution. I might support specific amendments, though--e.g., a marriage protection amendment.

The idea of raising a governing majority to actually roll back the New Deal is quixotic fantasy.

Well look, it's fine to refer to the New Deal as a unified entity for communication purposes, but surely we know in policy terms it wasn't. Maybe that is the "quixotic fantasy"? Paul invites us to fall into the trap of thinking we must put up a large social program to counter a supposed large social program, but the truth is things are normally done in increments.

Amateurs talk strategy, while professionals talk logistics. Get serious.

Look, our current "health care" regime is a massive government intrusion in where it doesn't belong, and a direct result of post-WWII wage and price controls. Obamacare is simply last ditch effort to keep it before people turn to private markets for all their insurance and health care needs. My health care docs are only interested in shoving the drugs down my throat that the pharmaceutical salesman is pushing at the time--a total joke--though one of the supposed better ones. Just take a blood-thinner, an anti-statin, blood pressure medication, and an anti-depressant, and call me in the . . . well no actually take them for the rest of your life. Don't worry, you don't pay for a thing. And we'll probably remove your gall-bladder in a few years, because it might fix something or other, you never know.

Ivan Illich saw all of this decades ago. I want the control that I'd have if I were spending my own money, rather than having my employer take my money and do a deal. My employer has no business being in this market, and it is morally wrong for the unfairness of those who don't have a traditional paycheck in being tax penalized to obtain the same thing.

1) Is it a quixotic fantasy to ask for Congress to *remove* the interstate restrictions on purchasing health *insurance*? The fact that these restrictions are there in the first place are a massive government-business corruption scandal.

2) Is it a quixotic fantasy to ask Congress to *remove* the immoral tax favoritism?

3) Is it a quixotic fantasy to ask Congress for tort reform that sucks money out of my wallet to pay lawyers, and harms my health by doing unnecessary tests?

So let's stop acting like doing the right thing is some "quixotic fantasy." I'll keep pushing for Congress to simply do the right thing and stop blocking me from managing my own finances! None of this is revolutionary or even particularly novel.

People can claim the "New Deal" is a done deal all they want. They can claim it can't be rolled back. Whatever. As for me, I'll talk about changes that need to be made without falling into the trap of thinking in terms of large sweeping programs. We don't need those. Even the three elements I listed could be passed individually on their own merits. They are independent, as are their benefits. 1 and 2 aren't even positive actions. I don't think our current "health care" system could even survive in its present form without all three of these abuses of human freedom and unfairness.

Conservatives who seem only to think in terms of large programs have lost their bearing. Just do the right thing. Is that asking too much? We'll see. But make no mistake, even one or two of the points above would be a massive rollback in federal involvement in my business, and it is the right thing to do. And since Obamacare isn't even workable in present form it isn't some pipe dream. The mood is strong to repeal Obamacare, and even it it is blocked it is possible that the current HC regime collapses of its own weight and the states revolt. They don't need to secede, all they have to do it say "no."

Jeff, I'm a bit confused. How could it both be a disaster on many levels to abandon originalism while it was also the case that conservatives could live with a living constitution?

What I mean is that philosophical conservatism can work with a wide range of constitutional or political arrangements. American conservatives are tied to originalism because that best preserves the integrity of the Constitution as written. However, originalism is not the only conservative good, nor is it the highest good, nor is it necessarily even possible to implement. If originalism just isn't viable anymore, then we deal with what we've got.

It seems to me that one way to resolve this is to build a certain flexibility into the Constitution that, perhaps, would not make things like SSI or hurricane relief "unconstitutional" from an originalist perspective. That's what a constitutional convention could accomplish.

A constitutional convention doesn't represent a living constitution view. The constitution provides for its own amendment. Originalists have no problem with constitutional amendment.

You're right. I wasn't using the term "living constitution" in the dishonest sense of "it means whatever you want it to mean", but only in the sense of adaptability.

Well, speaking philosophically, I don't even know what it would mean for originalism not to be viable or whatever. Things mean what they mean. As far as I'm concerned, there is no philosophically coherent, much less self-limiting, alternative to holding that the constitution (and its later-passed portions) have an actual and determinate meaning and do not osmotically change in meaning over time.

Now, as far as passing an amendment that simply grants greater powers to the federal government (which I would guess is what the greater flexibility amendment would be that you are envisaging), I would myself very likely oppose such an amendment on policy grounds. I think the limited federal powers from a long time ago were a wise thing.

I know pretty much where Lydia would stand on the Moldbuggian hypothesis, but I'd like to hear Paul's take on it: Viz., that "conservatives" today are actually facilitating the ongoing erosion of sanity, good humor, and civilization that is Late Liberalism. As the loyal opposition, they participate in the fiction of Right vs. Left politics, when in reality we suffer from all the evils of one party government (as in Uganda) and get none of its obvious benefits (as in Singapore). The "right" (so-called) represents just enough of a threat to the Revolution, just enough of a Bogey-Man, that its true friends can always point, sputter, nod their heads with their co-religionists, and make out large checks to NPR or NYT.

(Parenthetically, go ahead rub a true liberal some day about Fox News, hardly conservative by WWWtW standards, much less Moldbuggian, and see the results. Orthodox liberals run every other mainstream news organ in America, but, boy-o-boy, do devout Progressives get worked up about the mere existence of Fox News... and more importantly about all those Red State, gun-toting, religion-clinging, slobbering, mouth-breathers who make it #1.)

Moldbug's alternative is passivism--to simply not participate in the mainstream of politics (as the Amish and Hasidim largely do not), allowing it to accelerate toward its natural and inevitable end, and instead concentrate on forming a real political party, i.e., a pseudo-governmental machine, replete with rank, loyalty oaths, uniforms, and propaganda organs, ready to take over when, as is inevitable as the Revolution continues to hold inexorable sway, the opportunity arises.

I have to say... it makes a whole lot of sense to me... at least considering the alternatives... which seem to be none.

Constitutionalism is not dead, not by a long shot. That's just malaise and cowardly acceptance masquerading as realism -- and that's what's wrong with the world.

Well, speaking philosophically, I don't even know what it would mean for originalism not to be viable or whatever.

It means either that: a) no court or polity will ever affirm it; or b) to rule for originalism would do more harm than good.

Good luck teaching him to write a convincing opinion, an opinion having both argumentative force and legal integrity, with a living constitutionalist theory.

When asked to identify my constitutional theory, I generally refer to that of The Federalist, which, despite having been cited in legal opinion for centuries, is not, in fact, original to the Constitution. I suspect a search of "The Federalist" or "Publius" tags here at W4 would term up at least a few essays where I explain myself on that subject. Your eagerness to attach this derogatory "living Constitution" label to my views, and then intimate that all this is really quite new on my part, is exactly the sort of thing that so alarmed me in the other thread.

Consider the four conservative Justices on the Court today. Are they all originalists? If so, how do you explain their differences on a variety of matters? In the recent Synder v. Phelps, the Westboro Baptist Church case, Alito dissented from an opinion signed onto by the others. Roberts appears to embrace a wider compass for Executive power as compared to the others. Thomas has a lot more Natural Law in his views than Scalia, whose own originalism is rejected emphatically as too positivist by conservative scholars like Harry Jaffa. From my own perspective, the inclination of many conservatives to pretend the Preamble is not part of the text of the document is a galling departure from the document as originally adopted.

These debates go on and on.

As for me, I'll talk about changes that need to be made without falling into the trap of thinking in terms of large sweeping programs.

Mark, you might better do that on your own time, or wait for a post that relates to these details. Jeff's post concerns constitutional theory. You're just proposing a threadjack here by setting aside the terms of debate that annoy you.

Now, as far as passing an amendment that simply grants greater powers to the federal government (which I would guess is what the greater flexibility amendment would be that you are envisaging), I would myself very likely oppose such an amendment on policy grounds. I think the limited federal powers from a long time ago were a wise thing.

Just off the cuff here, Lydia, but what if the Constitution were amended so as to: a) affirm originalist jurisprudence; b) expand the liberty of states to exempt themselves from federal programs; c) confirm the right of national government to legislate and spend in various areas; d) deny the right of national government to legislate and spend in other areas; e) the net result being a reduction in federal programs but without provoking a humanitarian disaster or undermining 235 years of constitutional case law.

Mr. Cella,

Thank you for pointing out that Scalia's originalism is generally positivist in nature. There are understandable reasons, from a conservative perspective, why Scalia would want to emphasize the original meaning and to insist on the plain language of a statute--to rein in "activist" judges(to use a term which Scalia himself, I believe, has said is meaningless). Nevertheless, his positivism is entirely a defensive posture. Nothing positive can come of his positivism in this country, since it contradicts the entire Anglo-American legal tradition. It is telling, indeed, that in A Matter of Interpretation, Scalia wishes that American lawyers would just rely on statutory codes like they do in Europe.

I'm glad to see someone finally owning up to the reality that we are in a post-Constitutional era, much like Romans living with their fictional Senate for centuries after it ceased to matter. The Tea Party and most GOP rhetoric perpetuates the fiction that we can roll back the clock to what "the Founders" wanted. But can you even imagine appointed Senators, only landowners voting, etc.?

Although it won't happen, I favor the option of declaring that fiction dead and operating as a true opposition. We should learn as much as we can about the Spanish conservative tradition and appropriate what we can from it, as it will be a major part of our nation going forward. I am also for the Benedict option. Hold on to the culture and pass it on if we can while waiting for the inevitable total collapse of the current configuration of the USA, wether in 10 years or 110.

Mark, you might better do that on your own time, or wait for a post that relates to these details. Jeff's post concerns constitutional theory. You're just proposing a threadjack here by setting aside the terms of debate that annoy you.

Paul, my comments are directly related to your comments that Jeff put in boldface in making his point: "The idea of raising a governing majority to actually roll back the New Deal is quixotic fantasy." My comments weren't off-topic for the reasons I gave.

Directly responding to a boldface proposition in the article body wouldn't ordinarily seem to be a threadjack unless you wish to give a reason why this is so, or unless argument by demonstration of current events is now out-of-bounds. What we have is a disagreement over an assertion intentionally highlighted in the post, not a threadjack. Now either your comment was pertinent to Jeff's post or it wasn't. The way I handled it isn't the way you might have wanted the conversation to go, but it is hardly a threadjack.

The real problem is it didn't fit any of the desired templates, one of which goes something like "Hey, let's start from scratch in the faculty lounge on a napkin" type of proposal. The other is obvious enough, and Joel has now supplied one of that sort.

Obviously, I don't think the back and forth tussle the country is in right now is new, and I don't think it is settled that we're in a post-Constitutional era. But there aren't any real overarching arguments for this, or the opposite. It's mostly an attitude, and that based on a views of the past. One of the many reasons I pursue US history with an increasing urgency as time goes on. Anyway, we've been here before. It might all end up like you say, but the same was true in any number of eras before. It all depends on events and providence, as it always has. I have no idea about providence of course, but my view of past events tells me it isn't over as you, Jeff, or Joel would have it.

I know pretty much where Lydia would stand on the Moldbuggian hypothesis, but I'd like to hear Paul's take on it

Steve, Moldbug has some fascinating ideas. He's an authentic Reactionary in land of very few true Reactionaries. He wrote the other day that the "one and only one disease" of the modern world is kinglessness. Here is a guy who actually argues from outside the democratic tradition in critique of it.

I also think there is something to his historical divisions of USG 1 - 4. His zany posts on finance are great fun.

But on the whole I am not often persuaded by him. I am not monarchist (which is not the same as saying there in nothing of value in monarchy). I do not think the Party of Order is always and everywhere the conservative party. Etc.

Mark, what I don't quite understand is why you dedicate such effort to commenting on a mere "attitude" lacking "overarching arguments" for or against. Why are you sticking around to listen to such a bunch of wistful old fools as us?

my view of past events tells me it isn't over as you, Jeff, or Joel would have it

If you're linking the three of us, you haven't been reading very carefully, since I said that I don't believe the Constitution is dead, while Jeff mused that it might be dead and what should we do next, and Joel praised him for opening that conservation. So who do you disagree with?

Just off the cuff here, Lydia, but what if the Constitution were amended so as to: a) affirm originalist jurisprudence; b) expand the liberty of states to exempt themselves from federal programs; c) confirm the right of national government to legislate and spend in various areas; d) deny the right of national government to legislate and spend in other areas; e) the net result being a reduction in federal programs but without provoking a humanitarian disaster or undermining 235 years of constitutional case law.

Well, a quibble, but if we're talking about the New Deal, we're not talking about 235 years of case law, nor anything like. But as for the rest--I'd have to see the details. What you're essentially talking about here, Jeff, is something like making an honest woman of some aspects of constitutional case law. That's not something I'm closed to doing in principle, but I'd have to see a good case for opening the amendment genie *for purposes of* expanding formally granted federal power in any area whatsoever. For one thing, if we're going to start amending the Constitution, I see no reason why we shouldn't put a stop to some of the terrible mischief that has been done and that likely will be done by a runaway court and a runaway federal government. Why amend the Constitution simply to confirm what the Court has done in allowing the expansion of federal powers without also reining in what the Court and Congress have done elsewhere? I'm just not seeing that conservatives are getting anything much out of it if all we do is ex post facto render, say, Social Security constitutional but don't at the same time overturn Roe at least to the point of returning the question to the legislation of the states, abolish federal involvement in education, put paid to any hope of reading homosexual "marriage" into the fourteenth amendment, and a few other goodies I'm sure I could think up in a couple shakes of a lamb's tail. I just don't have much of a stake in retroactively constitutionalizing the New Deal, even if no more "harm" than that were done.

So I guess what I'm looking for is some big-time reduction not just in federal programs but also in various areas of federal law as well as the turning back of some disastrous court precedents in social areas.

Which is never going to happen. Constitutional amendments aren't big package deals like that. Nor should they be. They're generally narrowly focused on some topic.

What you're essentially talking about here, Jeff, is something like making an honest woman of some aspects of constitutional case law.

I had to chuckle at that. :-)

True, but I see it more like saving the Constitution itself, giving it back its integrity, and starting over with a "clean slate". Averting a disaster, in other words.

As for the other goodies, absolutely, throw 'em in! I have a few other ideas too. I'm not talking about a single amendment here, Lydia - it's probably too late for that. I'm talking about a convention for proposing amendments according to Article V. An overhaul.

Why amend the Constitution simply to confirm what the Court has done in allowing the expansion of federal powers without also reining in what the Court and Congress have done elsewhere? I'm just not seeing that conservatives are getting anything much out of it ...

Lydia, please see points a, b, d and e above. Or don't you think these are benefits from a conservative point of view?

Are they all originalists?

Possibly not, or not all to the same extent. I can't imagine why I should be expected to assert that they are.

If so, how do you explain their differences on a variety of matters?

Even if they were, a great deal is explicable by reference to a variation in willingness to invoke stare decisis. The most originalist of originalists, Scalia, is occasionally willing to do so--along the lines of "go and sin no more."

Moreover, it's silly to imply that even originalists will always agree about everything. Application of certain things--like the first Amendment--to contemporary situations can sometimes lead to differences of opinion. All the more so if some more recent precedent is itself being left in place as binding interpretation. This because more recent precedents have sometimes been more explicit and detailed about things like First Amendment rights than was the amendment itself and, when one attempts to apply their principles, create yet more tangles.

Or don't you think these are benefits from a conservative point of view?

Yes, I do, if they could be effectually achieved along with actually _rolling back_ both the federal Congress's encroachments and those of the federal judiciary in crucial areas. Speaking for myself, since each amendment would have to pass the amendment process separately even if proposed at one convention (sort of the equivalent of a line-item veto, if you see what I mean), I'd probably have trouble drumming up much enthusiasm for the constitutionalization-after-the-fact amendments, especially for policies I think misguided even as policy. I'd be in there rooting for the individual amendments I thought good in themselves.

Mark, what I don't quite understand is why you dedicate such effort to commenting on a mere "attitude" lacking "overarching arguments" for or against. Why are you sticking around to listen to such a bunch of wistful old fools as us?

That's an easy one. I've read three books in the last two weeks on Tocqueville so far because of thoughts stimulated by posts here. By participating I work on my own thoughts about it. I hope others are as stimulated by this sort of thing. So apologies, but it's all about me. :)

If you're linking the three of us, you haven't been reading very carefully, since I said that I don't believe the Constitution is dead, while Jeff mused that it might be dead and what should we do next, and Joel praised him for opening that conservation. So who do you disagree with?

Well I suppose we could ask Jeff why he boldfaced the text of yours he did in making the point he did. I think it obvious. Seeing this question as a fundamental link to Constitutional fidelity, however one comes on the "post-Constitutional" question links you two on that. As I said, I don't agree with characterizing the "New Deal" as one specific program, and I don't think the public is as enamored with many of the programs as much as many think. Now if you want to equate the New Deal with Social Security that's one thing and I think that is popular, but we should be clear about what we're talking about when basing sweeping judgements on it.

From my own perspective, the inclination of many conservatives to pretend the Preamble is not part of the text of the document is a galling departure from the document as originally adopted.

Would that make you an originalist, then, Paul? I still don't think I have a good handle on your own position: is there a prominent jurist (past or present) with whom your views are mostly aligned?

Broadly speaking, originalism strikes me as the only legitimate approach to a constitutional government. That originalism is no longer reflected in our laws, and no longer even considered on many questions, is hardly debatable. The situation makes for a highly corrupt legal and political atmosphere and an incentive for endless mischief.

Nonetheless, since there is no plausible arrangement of current-day American politics that gives me what I want, I wouldn't think of going around dogmatizing on this subject. Or boasting that because I want to roll back our legal doctrines even farther than opponents of the New Deal I am the truer constitutionalist.

I understand your accepting certain political realities, and I'm with you on that, but I'm not clear as to what sort of limits you believe the Constitution actually places on anything if the status quo is allowed to stand.

For my part, I have no great passion for repealing the New Deal carte blanche, or even its most egregious ideas and programs, but it's absolutely imperative for the survival of the Republic that we preserve a semblance of constitutional order - and that means saving originalism.

And while we're saving originalism, as I'm sure you will agree, it's high time that American conservatives get over the idea of the Constitution as holy writ: infallible, suited to all times, and sufficient to address every possible question in a satisfactory way. A healthy constitution provides for non-juridical means of dealing with most problems.

The more I think about it, the more clear it becomes that a constitutional convention is needed, both to re-establish the parameters of federal authority and to affirm the rights of states to "opt out" of federal programs.

I don't know if I am a originalist, according to the strictest definition. I have great sympathy for many originalist arguments, but I tend to eschew these legal-theory labels because whenever I bring these matters to the handful of super-smart lawyers I know, I always come away scratching my head about all the nuances in definitions of schools of thought. For instance, it has long been my impression that the legal world (to the extent that these snobs even deign to examine his opinions) does not regard Justice Thomas as an originalist, strictly-speaking. He is more often described as a Natural Lawyer, which is also a school toward which I have a lot of sympathy.

My understanding of Natural Law suggests, for example, that it is a school more open to the influence of the Preamble. So an argument might be developed as follows:

The Preamble sets out the purposes of the Constitution. One of those purposes is to establish justice. Since there can be no justice in slavery (a moral conclusion which all men, reasoning properly, should arrive at), the Constitution cannot rightly be a used as a shield for the institution of slavery. A fortiori for abortion, since there can be even less justice in murder.

That said, I don't know that I would label myself a Natural Lawyer either. And I haven't even mentioned the "law and economics" school of jurisprudence, which is associated with the University of Chicago and is generally regarded as a conservative school.

I certainly do not consider myself a "living Constitution" man. I believe strongly that the Constitution has discernible meaning and that the argument that its meaning should shift with the winds of judicial fashion is laughable.

I think where Lydia and I differ is that I believe the Constitutional framework gives Congress more leeway than she does.

Jeff, I apologize for neglecting to answer your question.

is there a prominent jurist (past or present) with whom your views are mostly aligned?

Not so much jurists as political scientists, but Willmoore Kendall, James Burnham and George Carey come immediately to mind. Certainly the West Coast Straussian perspective has influenced me as well. On the Supreme Court, I have moments of both annoyance and enthusiastic admiration for all the conservative Justices (though Alito I do not know well enough to speak to).

I do not hold in particularly high esteem the unitary Executive folks that grew up around the Bush administration soon after September 11. John Yoo and the rest of the architects of the enhanced interrogation infrastructure. Judge Posner's school leave me pretty cold.

Paul gives a sample argument using the preamble:

One of those purposes is to establish justice. Since there can be no justice in slavery (a moral conclusion which all men, reasoning properly, should arrive at), the Constitution cannot rightly be a used as a shield for the institution of slavery.

One problem with this sample argument from an originalist perspective would be its direct clash with the clear fact of the slavery shielding going on in the Fugitive Slave portion of the original Constitution. That portion was, of course, overturned, but it was so by way of amendment abolishing slavery, not by holding that the Constitution had *all along* forbidden slavery by way simply of the use of the phrase "establish justice" in the preamble. An argument that it did so would result in the conclusion that the Constitution was self-contradictory all along, while it did in fact shield slavery, which would make it exceedingly difficult (to put it mildly) to draw a consistent conclusion from it.

That is a general problem with the use of the preamble. The goals stated in it are so sweeping (a little like "truth, justice, and the American way") that one can prove too much with them--where "too much" means "implausibly broad conclusions about the original meaning of the Constitution as shown by other bits of the Constitution, history, etc."


Joel,

It is telling, indeed, that in A Matter of Interpretation, Scalia wishes that American lawyers would just rely on statutory codes like they do in Europe.

Could you give the page citation from which you're taking that in the book? I've read it several times, though not recently, and I don't remember that part. Perhaps we're interpreting something differently.

direct clash with the clear fact of the slavery shielding going on in the Fugitive Slave portion of the original Constitution

The Natural Law response would probably be that of course no human document could perfectly achieve justice; that most human constitutions include obvious compromises with wickedness. Perfection is not achievable here below. Which is why constitutions can never replace that Law which is beyond and above man.

Jeff, something interesting did occur to me. Insofar as you are talking about proposing Constitutional amendments, you're still "following the rules" when the liberals are not. You'll never find them worrying too much any more about constitutional amendments. Occasionally they make noises about the ERA, but in their hearts they would have to admit they've gotten nearly all they wanted from the ERA out of liberal judges' use of the 14th amendment. It probably won't be long now before we can change that to "all."

It doesn't bother me that we should abide by different rules from theirs. That's bound to happen, I think. But it really does still hamstring us in pretty much the very way you were worried about at the beginning, mostly because constitutional amendments are extremely difficult to pass.

By the way, without going into a long spiel, I should probably say that I think Social Security bad _policy_ as well as unconstitutional. But I think it could be very gradually phased out without creating a humanitarian crisis, if only there were the political will. The phase-out should begin by removing the Ponzi element, that is, treating it frankly as a welfare program for elderly and disabled people in need, with full means-testing, rather than pretending that it is an old-age savings plan when it is nothing of the sort. It could then be very gradually phased out by age, and if private means could not even at that slow of a speed take up the slack, it would at least be constitutional for the individual states gradually to do so.

Paul, I would tentatively suggest that your actual position is that Congress's powers, originally, were unenumerated and that therefore the power to enact the New Deal *was always* a constitutional power of Congress, that doing so was never ultra vires. If that interpretation of your position is correct, then I would suggest, hopefully without causing offense, that the phrase "the New Deal is part of our constitution now" is a confusing one for you to use to express your position. That sentence gives the strong impression that the Constitution changes gradually in meaning, without the amendment process, in some way or other even if not at the whims of the court--apparently, given the example on the table, that Congressional action by itself, if not overturned swiftly, can literally make things part of the Constitution that were not before. It isn't surprising that someone would call this a "living constitution" view. If your view instead is simply that Congress always, from the outset, had extremely sweeping and unenumerated powers, I think this a completely and seriously wrong position, but I would not express it in terms of something's "now" being "part of the Constitution" that wasn't before. So I think that is the confusing phrase here.

When Kurt Godel was studying to become a citizen, he read though the Constitution and came to the conclusion that there was a way the Constitution might be used to create a dictatorship. I have my suspicions as to what his thinking might have been, but in any case, the weakness in Godel's thinking was in his assumption that reasoning and reasonable agents were interpreting the Constitution. In fact, sadly, it is a document created by people, for people, under the interpretation of people. The best pair of shoes will not make a lame man a good dancer. The tacit assumption that following the Constitution will lead, inevitably, to the establishment of domestic tranquility or the blessings of liberty has been proven to rest on the further assumption of the general good-will of those responsible for it's implementation. History has shown that without a strong moral component within the document, the document must rely on the strong morality of the men using it to make it work consistently. Sadly, this has not been the case. It is not the case that putting 10 saints and 10 sinners in the same room will result in either 20 saints or 20 sinners. It usually results in a mess. The presumption of a common understanding of either ethics or morality guiding the implementation of the Constitution has been demonstrated to be false, time and again. It is even the case that the Constitution has been used to provide cover for grave evils. Whether it will be used for good or ill all depends on the weaknesses of the men who hold it in there hands. These weaknesses are never certain until the men arrive at their destined appointment with the document.

Given that some view of morality is a foundational necessity for consistency within law, is it any wonder that things are twisted in this Land that once thought a Constitution on mere paper was enough to overcome the more pitiable constitutions within flesh?

I suppose what we should have done is required a new Constitutional Convention every 100 years, just to remind ourselves just how hard it is to have the wisdom to create a nation. We ought to have been required to re-write the Constitution anew at those century Conventions just to keep us humble and in touch with our own fragility. We once dared to conceive a nation based on the best in men. We have stumbled on in ever-increasing blindness because we have forgotten that lofty aim. We have not made it a Constitution of the Best, but a Constitution of the Common and the Weak. This is not to imply that only virtuous men may approach the Constitution; it is to imply that only those men fearful of offending it may approach. Even a scoundrel can approach a virgin of he is fearful for her innocence.

Well, what can one expect? We can either do the hard task of reforming ourselves, or do as we have been doing - take the easier task of gagging our Constitutional Accuser. Two hundred plus years of living with a document that wants only the best for us has caused us, if we are honest, to realize that not only has familiarity bred contempt, but it has also bred a lack of familiarity. Welcome to the Land of Blind Irony. We are no longer familiar with the lofty goals of that once proud Document, but only the temporary goals of the insanity of a this-time-that-time expediency that will always evaporate as fast as the restrain on the desire of a dog in a sausage factory. Run, run O Man after this new trinket of law, that newly-discovered facet of My Way.

When will we realize that the Constituion is still out there running the race? It is we who are stuck in the mud.

I've offered no logical arguments to fix the problem, but then again, it's solution is obvious. I only hope that those in office would have the humility to wait until it were so. If we would only hold to the rule: never pass a law until it is obvious, we would have fewer laws, a simpler life, and a better understanding if the Constitution.

The Chicken

One problem with this sample argument from an originalist perspective would be its direct clash with the clear fact of the slavery shielding going on in the Fugitive Slave portion of the original Constitution. That portion was, of course, overturned, but it was so by way of amendment abolishing slavery, not by holding that the Constitution had *all along* forbidden slavery by way simply of the use of the phrase "establish justice" in the preamble. An argument that it did so would result in the conclusion that the Constitution was self-contradictory all along, while it did in fact shield slavery, which would make it exceedingly difficult (to put it mildly) to draw a consistent conclusion from it.


That is a general problem with the use of the preamble. The goals stated in it are so sweeping (a little like "truth, justice, and the American way") that one can prove too much with them--where "too much" means "implausibly broad conclusions about the original meaning of the Constitution as shown by other bits of the Constitution, history, etc."

I think the Declaration provides the Natural Law basis for the Constitution. To say it has specific goals as we normally use that term I think is putting it the wrong way. It isn't to be read as a 2nd Constitution with different broader goals in the normal sense. It is aspirational. It doesn't say how or when on anything, and shouldn't just as a mission statement for a business doesn't. I think criticisms on the vagueness of the preamble and such misunderstand its genre. Does that make it dangerous? I don't think so. If they aren't written we have them in our minds, and nothing cannot be misunderstood.

And I'm not sure that pointing out contradictions at the time of creation does much one way or the other. Even in general laws it is seldom otherwise. I think it was Frederick Douglass (or if not someone else) who said of the fact that the 15th amendment was widely ignored in the South and black disenfranchisement still a hard fact that "I thank God for the law, for it cannot be ignored forever."

Ronald Reagan was inaugurated approximately 30 years ago, well within the living memory of most correspondents here. At that time, what fraction of the US population could even have conceived of a concept of gay "marriage"?

Yet today, all the cool people believe that not only is gay "marriage" an obvious natural right, but that you are an irrational hater if you believe otherwise. Since most people want to be cool, it is inevitable that gay "marriage" will become law of the land throughout these States... starting with the coolest (e.g., MA), and trickling down to the least cool (e.g., KS).

And you can run this experiment with every significant matter of public policy in which traditionalist conservative screams stop--always and everywhere policy only goes one direction: that of the Revolution.

All this talk of the Constitution does not get at the root of the problem... what we really need is a new cool people.

Would it be your position, then, Mark, that anything that Congress might do to "execute justice" and "provide for the general welfare" and that is not elsewhere forbidden to Congress is already implicitly a granted power of Congress by way of the preamble? I know you didn't say that, but I'm trying to figure out if that is where you're going.

For example, suppose that the federal Congress were to give power to the Department of Education directly to require certain educational content for every community in America or something of that sort, on pain of some punishment for parents whose children do not receive the stated educational content, because this would provide for the general welfare, it's helpful to the goal of having educated citizens, etc. You can imagine how the argument would go. Normally, I would expect conservatives to argue against this by, among other things, pointing out that it is ultra vires for Congress. That would be only one line of objection, but it's one I think conservatives definitely should use in such a case. But this argument assumes a doctrine of enumerated powers. The extremely strong view of the incorporation of the preamble into the legal structure of the Constitution essentially guts the 10th amendment and implies a doctrine of unenumerated powers, so this argument would then not be available, and one would have to make only policy arguments--this is a bad idea, this infringes on the proper role of parents, etc.

I agree with you about genre, Mark. I, too, take the preamble to be aspirational. But for that very reason I do not think that it can be taken to mean that, for example, the Constitution _could not_ be used as a shield for slavery, especially since the Constitution manifestly and expressly (in the Fugitive Slave clause) _was_ used in exactly that way at the time. The preamble cannot be used to justify declaring some power that is otherwise totally unenumerated (nor even within the necessary powers to carry out some enumerated power)--e.g., the power to require every American to participate in a health care plan or even a retirement savings plan--to be _within_ the scope of the powers of Congress, and so forth. Precisely because of the preamble's genre, those uses of it would be legally far too strong.

Perhaps you and I actually agree about this. I just can't tell from your comment.

"All this talk of the Constitution does not get at the root of the problem... what we really need is a new cool people."

Right, Steve. We need to pull a Gramsci in reverse. As I heard R.V. Young say once, it's our turn to be the subversives.


Would it be your position, then, Mark, that anything that Congress might do to "execute justice" and "provide for the general welfare" and that is not elsewhere forbidden to Congress is already implicitly a granted power of Congress by way of the preamble? I know you didn't say that, but I'm trying to figure out if that is where you're going.

Lydia: No, I would agree with you that this is a very bad thing. I think the necessary and intentional generality of the Declaration and/or preamble (and missional statements generally) rules this use out. To see it as a license for Congress would be a license to do anything. Because of the purpose and generality I think the Declaration is only legitimately used terms of any sort of direct application in the negative sense, and even then only of the most grievous sorts. Slavery and Jim Crow laws are the prime examples for a reason. But I suspect the Declaration is probably is why Americans as a whole tend to dislike a cynical foreign policy. Or I should say because the Declaration gets at something at the heart of the American character. We don't have to right every wrong, and shouldn't try, but when we do act as we must we should deal fairly and justly with other nations and peoples, as opposed to how France or Russia would. I think equality has to do with honest attempts at fairness in dealings. I'm not embarrassed by a young Marine in Iraq that tells a reporter (as they often do) when asked why he volunteered to serve there something along the lines that others have a right to be treated with basic dignity that has been denied them unfairly. He's stating a kinship with people of other nations. The Europeans and other cynics roll their eyes and call that naive, but I thank God that we have such citizens every time I hear such things. I think even the higher animals show evidence that they grasp when gross unfairness is displayed.

I think few other uses for such an aspirational document is warranted. The most basic and general is also the most important to get right.

I agree with you about genre, Mark. I, too, take the preamble to be aspirational. But for that very reason I do not think that it can be taken to mean that, for example, the Constitution _could not_ be used as a shield for slavery, especially since the Constitution manifestly and expressly (in the Fugitive Slave clause) _was_ used in exactly that way at the time. The preamble cannot be used to justify declaring some power that is otherwise totally unenumerated (nor even within the necessary powers to carry out some enumerated power)--e.g., the power to require every American to participate in a health care plan or even a retirement savings plan--to be _within_ the scope of the powers of Congress, and so forth. Precisely because of the preamble's genre, those uses of it would be legally far too strong.

I agree with the idea that the preamble can't be used to say the Constitution couldn't accept slavery in some way, because it isn't something you can fact check except at the extremes and over periods of time and in terms of direction. In fact, I think we had just that in the 1850's when it was so plainly stated that the problem was that slavery was strengthening, not that it existed. So I would say that it could and did discourage it's continuation in the real world at some future unspecified point. How and when it ends is up to the public to judge as it sees fit, right or wrong. I would say that the Declaration states a few basic moral principles of a nation that have to be worked out in the real world, and it can't say how or when.

Not sure if we agree fully, but maybe. At least I fully agree with the objections you raise, and I think the things you mention are not justified by the Declaration. However, I think it is just hard fact of human nature that some will misunderstand something such as a notion of "equality" this way. I think it could be foreseen, and was by Americans. And yes, Tocqueville. I just agree with him that religion, family, culture, and the other several things I forget are what must counteract these forces, and I'd add they either can long term or nothing can. (I just strongly disagree with his strident bourgeousophobia and dislike of commerce and the "commercial classes.") And now, as the excesses of such thinking over many decades has led many to see the downside of trying to provide equality of outcomes in a type of socialism, many simply grasp the truth of this by common sense. All to say (not that you'd disagree) that because there were forseeable dangers does not mean that alternatives are better.

All this talk of the Constitution does not get at the root of the problem... what we really need is a new cool people.

Which is going to be tough for our side. I think it was Modlbug the San Franciscan who said, "Not all conservatives are cretins, but most cretins are conservatives."

Oh, cretins can be "cool people"--at least, as I take that phrase to be meant--"cool people in the view of others." Of course, we don't want people admiring cretins anyway.

The real question is whether someone admirable can come to be regarded as a "cool person" in our society. And would it be good for him if he were?

Thanks for the clarification, Mark. I think we may well agree re. the Constitution but that I may be a little more cynical than you about foreign policy and the young Marine. If I saw a nice young man like that, I'd be hoping he'd get out of the cesspool of the American military as soon as his present tour of duty was over, stop risking his life, and come home and marry some nice girl and settle down in a job with a better moral and mental atmosphere. :-)

By the way, I think Moldbug's comment is definitely wrong. He needs to get out more. Plenty of non-conservative cretins out there. Check any college campus.

Ronald Reagan was inaugurated approximately 30 years ago, well within the living memory of most correspondents here. At that time, what fraction of the US population could even have conceived of a concept of gay "marriage"?

True, Steve. The trend is severely in one direction. A person with John McCain's views would have been considered a liberal Democrat about 40 to 50 years ago, not just a middle-of-the-roader. That says something about our country's movement.

Question: if things can move that quickly in one direction, can they move in the other direction like that? Does the change HAVE to be only leftwards? Sure, that's the trend, but what makes the trend firmly fixed in stone, irremediably definite?

I don't actually see any realistic hope of achieving a good change in any natural terms, but that's beside the point. If God decides that He is going to manifest a change, it will happen even though we could not foresee it. How many of us does it take to beg God for it before He decides that's sufficient? Sodom only needed 5 good men to save it. Alternatively, how much worse does it have to get here before men of good will, instead of asking God to reverse our plight, simply ask God to wipe out our blasphemies and and let nihilism get its death-wish. Did good men in Nazi Germany of 1943 pray to preserve Germany or to end Germany as they knew it?

I suppose what we should have done is required a new Constitutional Convention every 100 years,

Chicken, I came to that exact idea recently. If the people who made the Constitution are a far-removed "them" that can only be understood by a few historians and are far removed in political imagination from the people now who must operate that same document, then it loses some (much?) of its cultural force. On the other hand, if the people who made the (most recent) Constitution were people like my grandfather, that I might be able to reflect on more profitably. But it's too late. We don't have enough political perception and will for the common good to re-do the Constitution successfully. Not now, at least.

I'm really not at all sure re-doing the entire constitution every 100 years is a good idea at all. It's a matter of wisdom. In my state, we have to vote every 66 years (or some such strange number) on whether to re-do our entire state constitution. I just voted firmly against it last November. Are you kidding? I wouldn't _dream_ of wanting my state constitution completely redone by the people of the present day.

And we crawled over glass, figuratively speaking, to get some good things added to the state constitution in just the last few years. Pphht. That would all be out the window, with much less chance of getting the same things passed now. No way. Something similar is true of the U.S. Constitution. I would never in a million years want us to start over and try to invent a brand-new country set-up from scratch. Talk about acceleration of devolution. That's what we'd get for sure if we did that now. Some kind of Euro-horror.

Wow. On some of the questions discussed here, I think this will be of interest to anyone who hasn't yet had the chance to see it, though perhaps everyone else has. I certainly find it very interesting. I have just come across what appears to be the full text of this argument over the proposal that Congress grant "bounties" (a trade thingy, I believe similar to what we would now call price supports), from which I have previously seen only briefer quotations. I shall here unfortunately have to repeat the nuisance of giving only a partial quotation, but I hope it will be long enough to show that these are not snippets taken out of context, and I give below the link to what appears to be the entire discussion, where there is much more. Emphasis added.

Mr. MADISON. It is supposed, by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawback, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the general welfare! This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are {428} to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever -- to all such, at least, as will admit the application of money -- which is giving as much latitude as any government could well desire.

I, sir, have always conceived -- I believe those who proposed the Constitution conceived -- it is still more fully known, and more material to observe, that those who ratified the Constitution conceived -- that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers -- but a limited government, tied down to the specified powers, which explain and define the general terms.

It is to be recollected that the terms "common defence and general welfare," as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it was ever supposed or suspected that the old Congress could give away the money of the states to bounties to encourage agriculture, or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.

The novel idea now annexed to those terms, and never before entertained by the friends or enemies of the government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete legislative power I have stated, -- it would do more; it would supersede all the restrictions understood at present to lie, in their power with respect to a judiciary.

[snip]

{429} There are consequences, sir, still more extensive, which, as they follow dearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.

The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted.


http://www.freerepublic.com/focus/f-news/2133653/posts


Madison makes the same point and the same argument about the meaning of the "general welfare" phrase from pp. 546-547 here, beginning with the paragraph, "I have reserved for you a copy..." (I can't cut and paste this text.)

http://books.google.com/books?id=pdZ2AAAAMAAJ&pg=PR42&dq=The+Papers+of+James+Madison+letter+Pendleton+1792&hl=en&ei=7JPETfK6Hqfc0QG-18GLCA&sa=X&oi=book_result&ct=result&resnum=3&sqi=2&ved=0CDoQ6AEwAg#v=onepage&q&f=false

Let me interject that the Chicken's brilliant comment of May 6, 2011 10:03 AM was a monument to vigorous rhetoric, at once bold exhortation and touching lament. Well done to our Surreptitious Poultry Friend.

Not so much jurists as political scientists, but Willmoore Kendall, James Burnham and George Carey come immediately to mind.

Thank you, Paul. I'd be interested to see some of their arguments for your position, if you had the time.

The Preamble sets out the purposes of the Constitution. One of those purposes is to establish justice. Since there can be no justice in slavery (a moral conclusion which all men, reasoning properly, should arrive at), the Constitution cannot rightly be a used as a shield for the institution of slavery. A fortiori for abortion, since there can be even less justice in murder.

Honestly, I just can't wrap my brain around what our Constitution actually means if the Preamble is authoritative in this way. Part of me wishes it were true. Because if it were true, then the United States is, by virtue of the Constitution, a Catholic confessional state and we ought to get down to business about that!

Lydia: that's a whopper of a quote!

Alright, here is a serious question: was Abraham Lincoln an originalist?

If the originalist position impels us to take an oppositional stance to the introduction of the Declaration or the Premable as constitutionally applicable, impels us, in other words, to carefully guard against letting those documents infringe on the legislating activity of Congress; then are we not forced to conclude that Lincoln's originalism is very suspect?

For nothing can be more certain than that Lincoln gave the Declaration constitutional significance. At Gettysburg he said that we are a nation "conceived in liberty, dedicated to the proposition that" men are created equal. This proposition was so earthy and practical that it included the direct military subjugation of a section of the nation, the proscription of its elected government, and the vigorous suppression of all sorts of civil liberties protected in the Constitution. So if merely aspirational documents should be walled off, according to originalism, from the nuts and bolts of governance, it would seem that we have a non-originalist in Lincoln.

Lydia, yes, I believe you are right that "the New Deal is part of our Constitution now" is a poorly expressed phrase. My apologies.

I hope you don't only mean a long 'un, Jeff. :-) It does address the preamble interpretation issue quite directly. Madison's argument in those places intersects perfectly (unsurprisingly) with Publius's argument for the non-threatening nature of the new federal government (based on the federal government's limitation to delegated powers) in Federalist 45. Text here:

http://www.constitution.org/fed/federa45.htm

I'd hate for this to become a Lincoln's-motives-in-the-Civil-War thread (and I might guess that Jeff would, too), but my understanding is that Lincoln would certainly not have justified all of that simply as a means to stop the southern states from continuing with slavery. I believe that is historically quite definitely established, by Lincoln's own words. Lincoln believed that as a structural matter, a sort of meta-issue constituting the very existence of the country as a union, the states could not secede. He engaged in the Civil War because the states attempted to secede and because the federal troops were told they must leave forts within seceded states. Whether he was right on the question of whether states could secede or not is, of course, a huge, huge subject of debate which we've gone into on many threads here at W4. But it wasn't at all a matter of taking the aspirational language of the Declaration and saying that the federal government therefore had a constitutional prerogative on that basis to invade the southern states to stop slavery because slavery contradicted that aspirational language. That would, of course, have been itself contradicted by the entire history of the country up to that point, in which as a compromise slavery had been permitted and accommodated from the beginning. Any such sudden use of the Declaration to justify declaring war on the South simply to free the slaves would emphatically not be originalism and would also emphatically have been rejected by the Founders. Imagine what it would mean: The minute the Constitution is ratified, the federal government could have up and made war on the slave states instantly! After all, the Declaration already existed then, with all its aspirational language. In that case they might as well not have bothered founding the country in the first place. That would have been a ludicrous idea, and as far as I know, it is not one Lincoln held.

I may be a little more cynical than you about foreign policy and the young Marine. If I saw a nice young man like that, I'd be hoping he'd get out of the cesspool of the American military as soon as his present tour of duty was over, stop risking his life, and come home and marry some nice girl and settle down in a job with a better moral and mental atmosphere. :-)

I hope you don't take this the wrong way, but I think that is the soccer-mom view. Unfortunately, most boys these days are chased around by a middle-aged woman with hand sanitizer, whether they have resident fathers or not. In my experience college experience is at least as much a moral hazard. I don't think the American military is any more a cesspool than it ever was. You should see the difference it has made in the young men in my extended family. It is amazing. A cesspool could never produce that. And it happens that the military is the place where many nineteenth-century values are maintained, unlike about other institutions. I regard the opinion of someone risking his/her life over a belief over someone whose beliefs will cost them nothing significant either way.

Yes, I know you were part joking, but part not too, so I thought I'd respond nonetheless.

There is, of course, a line of critique of Lincoln to the effect that his "dedicated to the proposition" business was essentially a usurpation: he manipulated the veneration folks held for the Declaration to effect an de facto repeal of the old Constitution and the establishment of Lincoln Mk. II version. This is the view that Willmoore Kendall took. He described Lincoln as having "derailed" the American tradition by exploiting the Constitution's latent "Caesarist" tendencies.

Anyway, I don't share that view myself. But I think it is wise to think of the Constitution as supplies potentialities and tendencies of development, intimations which need not be pursued. As I wrote upthread, the first great men who held constitutional office shaped it in incalculable ways; lesser men would have shaped it otherwise.

Lydia, would you object to me saying that Washington's example as first Executive established traditions and customs and mental furniture that became essentially constitutional in nature? Too sloppy with language? How would you characterize his influence?

Lydia, in your 10:30 comment I think you have it exactly right. Very beautifully stated, not that you need my approval.

I also think that Lincoln can be shown an originalist in his much maligned position on the Emancipation Proclamation. Oddly, it has bewildered people ever since why he declared slaves free in the Confederate states only. It was for the simple fact that he could only do it arguable under a war powers understanding. The Constitution did not give a president the power to free slaves except as a war measure (this is for the legislature,) and that dictated the scope of the Emancipation Proclamation. It amazes me that almost no one understands that today and it has spawned all manner of conspiracy theories.

Also, I think he was frequently dancing around Taney's SCOTUS during his tenure, which he knew could trump him and also shows how he respected separation of powers, presumably on an originalist understanding.

". . . he manipulated the veneration folks held for the Declaration to effect an de facto repeal of the old Constitution"

I know you are only saying this is Kendall's view, but I think it is pretty silly. It is absurd to think 19th century Americans had so much respect for the Declaration that they'd die for it in large numbers for it. Nobody is that dumb, but don't tell the strong Lincoln and egalitarian critics.

One reason it is problematic is that I think we want to _retain_ the right to argue against, say, Obamacare that it is unconstitutional because it has not one shred nor hint of justification in terms of Congressional powers.

Well, I would love to read the SCOTUS decision that invalidates Obamacare but lets the New Deal stand unmolested. I suppose we have jurists who can figure out a way to do that, and I certainly hope they do (since there ain't no way they're gonna overturn the New Deal), but what a sorry unintelligible tangled mess it has all become.

For example, at that point there is no _legal_ reason why Roe v. Wade should be overturned as a precedent.

Isn't the "right to privacy" the constitutional anchor for Roe v. Wade? The Court simply needs to find that this "right to privacy" does not exist in the Constitution, at least not in the perverted form claimed by the majority opinion. I don't see why this needs to be an ennumerated powers argument.

I don't think the American military is any more a cesspool than it ever was.

Mark, you are wrong. The American military today, while certainly retaining much that is worthy and good, is a damnable cesspool of iniquity in comparison with previous generations. If you don't think so, it's because you don't think there is anything wrong with the pornographic and occult elements that permeate military life today. Young men with strong, moral character are certainly capable of surviving it, and I know some that do, but there is no comparison with the honor and virtue that earlier generations at least pretended to uphold.

It is absurd to think 19th century Americans had so much respect for the Declaration that they'd die for it in large numbers for it.

What's absurd about it? In the 1860s no more than half of American children were enrolled in school to begin with, and half of American adults were illiterate. The Declaration is much easier to explain than the Constitution. I'll bet that large numbers of Americans would die for its principles today. Most people conflate the two documents anyway.

Mark, you would do well to give up habitually characterizing the various arguments made around here as "absurd" and so forth. And just between us, maybe try disguising your contempt for anyone who dares comment on a subject you believe yourself to be the expert on. We know you are well read in the Civil War and American history. I'm sure we can learn a lot from you. But no one's going to learn anything from you if you choose not to remain a welcome guest.

Jeff Culbreath writes:

Isn't the "right to privacy" the constitutional anchor for Roe v. Wade? The Court simply needs to find that this "right to privacy" does not exist in the Constitution, at least not in the perverted form claimed by the majority opinion. I don't see why this needs to be an ennumerated powers argument.

How can SCOTUS reconsider the right to privacy in Roe without rejecting that same right in Griswold, Lawrence v. Texas, etc? It's doable if you recognize the humanity of the unborn child, certainly.

But with more and more precedents reliant upon Roe / Casey reasoning, it will become more difficult for all but the most dedicated jurist to revisit it.

Let me interject that the Chicken's brilliant comment of May 6, 2011 10:03 AM was a monument to vigorous rhetoric, at once bold exhortation and touching lament. Well done to our Surreptitious Poultry Friend.

You know, I never say much about (or in response to) TMC, but every one of his (or her) comments is worth reading. A treasured fellow traveler, to be sure. But is it a he chicken or a she chicken?

Jeff, the book to read is Burnham's Congress and the American Tradition. His chapters on the congressional power of inquiry alone are worth the price.

(By the way, the power of inquiry, the investigatory power, is yet another example of a strictly-speaking extra-constitutional machinery that is simply indispensable to understanding what constitutionalism in America has been. In other words, an American constitutionalism that does not include a Congress empowered to inquire vigorously into all matters before its consideration, inquire with the backing of subpoena power, punishment for open contempt or failure to appear, etc.: such a picture of American constitutionalism would be a gross distortion of reality unworthy of respect.)

I wrote last year on how the representative body, sitting in solemn assembly to legislate, forms one of the supreme political symbols of our tradition. Note that this symbol predates the Constitution by many years, but is a clear one to which the Constitution pays respect -- in the Preamble.

Willmoore Kendall's The Conservative Affirmation is emphatically worth a careful read. One bonus with both Kendall and Burnham is that they regularly put the reader in touch, in a fair and substantive way, with other scholars and especially with other scholars of differing views. You'll never read a Kendall argument where his opponent is not identified and summarized with justice.

Mark, that's the second time that an editor has had to rebuke your hostile and exaggerated rhetoric. Note it well. (And Jeff is perhaps the most thick-skinned of all of us.)

Regarding the military as a cesspool, I totally concur. I served in the mid 90's and it was all about drinking, drugs and random sex back then. I can't imagine that it's any better now.

Regarding Lincoln's intents, I believe it was Mark Noll who describes the Civil War as "a second founding" for America. That seems like a good way to put it. It was the end of the old order and the establishment of a strong central State that advanced to the New Deal, Great Society and now, Obamacare. We are now the leading exporter of secularism, pornography and feminism.

Lydia, I would never want to START having Consitutional assemblies, today. I just wish it had been written into the Consitutional before the moral rot had begun to set in. It would have been a completely different country.

Also, if only the Founding Fathers could have foreseen the invention of the telephone. It might have made a big difference in their views on democracy.

The Chicken

Lydia, would you object to me saying that Washington's example as first Executive established traditions and customs and mental furniture that became essentially constitutional in nature? Too sloppy with language? How would you characterize his influence?

Well, I do think it's confusing to say that the Constitution osmotically changes. I think that's always confusing.

But it would be helpful to me if a) you would admit that I clearly answered your question about Lincoln, which, Kendall notwithstanding, would have required (if considered as an argument that Lincoln was no originalist) attributing to him an extremely strong view which hopefully Kendall does not even attribute to him--namely, that the federal government had always been constitutionally justified in attacking the southern states outright on the basis of the Declaration of Independence and slavery alone. Now, I know, Paul, that you dislike having things stated that baldly, but if we're to say that Lincoln was no originalist because of one phrase in the Gettysburg address and because this phrase allegedly was so "practical and earthy" that "it included the direct military subjugation of a section of the nation," then this is what that seems to imply.

I answered that challenge by pointing out that Lincoln obviously thought no such thing. It is sometimes a bit frustrating and even depressing to answer one challenge clearly and straightforwardly and then simply to be asked, "What about _this_, then?"

b) It would be helpful if you would give an example regarding Washington. You can probably imagine that phrases like "mental furniture" are not something that I am likely to accept as counterexamples to the sensible view that the Constitution does not simply change its meaning over time (without amendment) and that the doctrine of enumerated powers is an important one in the American founding! It certainly seems to have been important to Madison, at multiple times and in multiple venues. See above.

Jeff, yes, my argument regarding Roe was an argument regarding originalism more broadly than just in the area of enumerated powers. I understood the debate here to span the broader question of whether the Constitution changes in meaning, whether originalism is kooky, outdated, pointless, or something of that kind.

Both Paul and Jeff: Just a comment on Mark's use of "absurd." I understood him to be talking about the view that the North simply attacked the South because it was "violating the Declaration of Independence" through slavery. As we _all know_ that that wasn't what happened, that secession was a _huge_ part of the reason for the Civil War, perhaps we can _all agree_ that such a view would be "absurd." I don't think it's a view that anyone here actually holds. Unfortunately, it did seem to bear some relation to the rather surprising argument about Lincoln and the Declaration which Paul made last evening, which is presumably why Mark said that it would be absurd. It's not illegitimate in the course of a debate on some point to say, "But your argument would seem to have this implication, and that would be absurd." In a reductio, one does not attribute the view in question to one's interlocutor. In fact, one hopes to change his mind by showing him the implication to something he, presumably, will also reject.

By the way, I recently read but haven't had a chance to confirm this: The web site I read said that George W. Bush linked the No Child Left Behind act with a defense spending bill on the grounds that having educated children is necessary to the ability of the country to make war. Looks like Madison was a bit prescient ("they may appoint teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union;") about the consequences of abandoning any meaningful notion of enumeration.

said that George W. Bush linked the No Child Left Behind act with a defense spending bill on the grounds that having educated children is necessary to the ability of the country to make war. Looks like Madison was a bit prescient

Yes, exactly. Once you start claiming that "X might lead to Y, and Y could involve Z, and if you have enough Z you might have to fight a war" is a basis for X being a federal matter, you lose any meaning to enumerated powers. All of the public and private worlds are interconnected, but mere interconnection does not make all of public and private worlds under federal purview.

Paul, I think that it is very important indeed to note that Washington's presidency established a lot of tradition. That's because I think that tradition, along side of law, holds a privileged place in forming the mental furniture for what is publicly permissible and/or worthwhile. We have an obligation to maintain wholesome and noble traditions. (That's a not-insignificant part of conservatism, I think.)

But at the same time, tradition is not law. It passes on in different ways, and it binds us in different ways. The Constitution is, formally, written law. Although custom about the Constitution is important and much of that custom constitutes a framework that has its own moral weight and authority, such customs and traditions are not written law. They should not be accidentally swallowed up into the category of law osmotically. Instead, we ought to have established framework for defending custom as well as for defending law - presumably a different framework for each. But one thing is clear: a judiciary that thinks that tradition is non-being because it is not law is a judiciary that has warped its own understanding of law itself. Such failure to recognize the limits of law lead to things like overturning marriage.

Such failure to recognize the limits of law lead to things like overturning marriage.

In the particular case of the overturning of marriage *by the judiciary* (as opposed to by a legislature), I actually think the problem is a lack of respect even for written law. For example, if the SCOTUS eventually "finds" homosexual "marriage" in the fourteenth amendment, they are doing so by means of pretending that they can make written law mean whatever they want it to mean. If, on the other hand, some legislature passes a law recognizing homosexual couples as "married," then I think your point, Tony, about a failure to recognize the limitations of written law (that is, that one cannot make marriage be whatever one wants it to be by legal fiat) applies there.

And excellent, excellent point about the distinction between tradition and written law, Tony. Five stars.

"pretending that they can make written law mean whatever they want it to mean"

To oppose that "pretending" is our duty as Christian persons. We serve a God Who is Word, and Whose Word is law. The church, therefore, has a task to perform. That task is staving off the death of language and, consequently, of law. When language dies, law dies. To protect them, we must know and defend the meaning of meaning -- not just of Constitutional language, but all language. That is something the church does not well know or defend. Because it does not, Christians are more often part of the problem, not of the solution. Bluntly put, this thread is evidence.

Theologically speaking, we ought to root hermeneutics in Christ, the rightful Lord of all things -- language and law included. How does the Word use words, both in his speaking and his reading? How does the Word interpret and apply written (and unwritten) law? We ought to turn not just to Him Who is not only the Physician of our souls, but also of our speech and our statutes. We ought to do so especially today, when language and law are desperately ill. You won't fix this with Derrida or Dworkin, and not with Wittgenstein or Weaver. All political and legal issues are theological at the root, even when that isn't obvious in discussions on W4 where, by unacknowledged and unarticulated common consent, Christ's example and usage are conspicuously absent -- as if, regarding such issues, He were safely irrelevant and these issues were properly secular.

I'll put it more pointedly -- as long as Christian folks use language in the devilish way of Newman and his successors -- the problem remains not only unsolved but unopposed. Until we learn to handle language and law His way, we are the ones "pretending." Without Him and His ways to guide us, it's not much of a crusade.

Just a comment on Mark's use of "absurd." I understood him to be talking about the view that the North simply attacked the South because it was "violating the Declaration of Independence" through slavery. As we _all know_ that that wasn't what happened, that secession was a _huge_ part of the reason for the Civil War, perhaps we can _all agree_ that such a view would be "absurd." I don't think it's a view that anyone here actually holds. Unfortunately, it did seem to bear some relation to the rather surprising argument about Lincoln and the Declaration which Paul made last evening, which is presumably why Mark said that it would be absurd.

Lydia, these are all valid points, but actually I was not assuming any knowledge of the CW at all in saying Kendall's idea as Paul stated it was absurd. Nor was I referring in any way to anything Paul or anyone said in previous comments or threads. I was strictly confining myself at the time to the Kendall quote as stated with no prior knowledge with the possible exception of being a participant in the American community, though even this is not necessary in fact. From this standpoint I consider it absurd on its face. Now Kendall was a bright man, and I have not read him, so maybe Paul didn't do him justice in his characterization, which just for clarity was this:

". . . he manipulated the veneration folks held for the Declaration to effect an de facto repeal of the old Constitution"

Like I said, if Paul didn't do him justice with the paraphrase that's one thing. But as stated it I take it to be a classic conspiracy theory by positing the gullibility of the public. It relies on an the idea that mid-nineteenth century Americans were easily manipulable to extreme lengths by any reasonable standard, and possibly overly sentimental to boot. Now Jeff doubles down and says "well prove they weren't! I mean they weren't educated, so ya know . . ." Wow. I said it was "absurd" because common sense would rule such conspiracies out.

Of all the offenses one could take over debates here, and things I've said that I shouldn't have, I would be amazed if it caused so much stir to call "absurd" the theory advanced by a man long dead about how the 1850's era American public could be suddenly manipulated by a president into fighting a long, costly, unpopular, and bloody war over the public's veneration of the Declaration in some way that they otherwise would never do. A view, by the way, which Paul doesn't even hold. So perhaps it is a misunderstanding.

Now if Jeff wants to go to the wall over the plausibility of the thesis as stated, and/or the idea that formal education is the cure for such extreme gullibility, then that's another matter. In that case, it might relate to the tendency for those with strong influences of anti-democratic Conservatism to see the middle class as a bunch of mindless rubes, naturally excepting themselves.

I would say that if it were really true that Lincoln "manipulated the veneration folks held for the Declaration to effect an de facto repeal of the old Constitution" that would give us a pretty simple answer to the initial question, "Was Lincoln an originalist?" The answer in that case would be a simple "no." An originalist wouldn't try to manipulate the veneration people hold for the Declaration to effect a de facto repeal of the old Constitution but would, rather, want to understand what the Constitution actually meant and to abide by it. Of course, I don't think Lincoln did anything of the sort, but if he did, it would be hard for me to feel bad about somehow seeming to insult him by calling him a "non-originalist." There would be far more radical terms that would apply in that case--"revolutionary" at least, if not "traitor."

All political and legal issues are theological at the root, even when that isn't obvious in discussions on W4 where, by unacknowledged and unarticulated common consent, Christ's example and usage are conspicuously absent -- as if, regarding such issues, He were safely irrelevant and these issues were properly secular.

Michael B, while I agree that language and law need to be defended - and I have done some of that defending myself, here and in other places - and while I agree that both rest in a Truth that is higher than human manufacture, I don't think it is fair to say that every discussion of the matter must be explicitly based in a theological framework. That's just not a reasonable complaint. Most of the commentators here, and especially the authors, understand the matters discussed in these thread with understandings that spring fulsomely out of their conviction that Christ is the root of all Truth. But sometimes that reality is not quite germane to the discussion at the specific level it is taking place, or if germane, it is ALSO a pre-conceived postulate of the discussion so the entire discussion proceeds in that context. For example, often when we speak of law, we (some of us, at least) assume a backdrop of natural law, and natural law has its origin in human nature, which human nature was designed by God to reflect Him as an image, and thus natural law springs out of Divine Law. We no more intend, in such a discussion about law, to divorce or separate law from its root in God Himself, than we would intend to divorce music from melody or harmony. But just as you can have a discussion of music that does not take up the question of harmony, so also you can have a discussion of law that does not explicitly need to express the origin of law in God.

Christ's Gospel does not tell us whether a bicameral legislature is better than a British-style parliament - it just doesn't. Nor does it tell us which are the best ways of separating powers, or of putting checks between different arms of government. So if the latter are the subjects of the debate, you cannot reasonably expect that references to the Gospel will advance toward solving the questions much.

as long as Christian folks use language in the devilish way of Newman and his successors

I for one have simply no clue what you mean here. In what devilish way did Newman use language? Are you being hyperbolic?

The web site I read said that George W. Bush linked the No Child Left Behind act with a defense spending bill on the grounds that having educated children is necessary to the ability of the country to make war.

I'm a bit confused. Before one can educate children, before one can execute defense in a war, doesn't one, first, have to have children?

By the reasoning Bush showed (which I think is sound), shouldn't he also have abolish Planned Parenthood on the grounds that,"having children is necessary to the ability of the country to make war.?" I have long thought that PP should be disbanded on the grounds that it is a subversive and potentially treasonous organization. The fewer children there are, the less likely we are to survive an invasion or even be able to fight a war. Had the birth rate in 1941 been, proportionally, what is is, today, (especially considering that half of the births are to unwed or adolescent women), I suspect the Allies would have lost the War. Consider that Britain would have been practically non-existent (from the massive non-existence of children) and Hitler would have rolled over then in weeks. On the other hand, Mussolini would have had practically no Italy to rule over because there would have been almost no Italians and there would have been almost no need for Axis Powers to develop. Hitler would have conquered Italy equally as quickly. Japan might have gone on to dominate China.

Ain't alternative history grand?

One could only imagine what the world would be like, today, if the words, Malthus and Population Bomb, had been banned from polite speech back in the 1960's. Then again, technological man has always been at odds with nature. It is a game that can't be fixed, however. The house always wins. Nature will always have the last word, at least until the Second Coming.

Let's start telling the world that the best revenge in any war is the laughter of children.

The Chicken

P. S., Jeff, I was a caller on, Catholic Answers Live, June, 24, 2010, if anyone wants to hear whether I sound like a he chick or a she chick. The topic was transhumanism - couldn't you guess?

All political and legal issues are theological at the root, even when that isn't obvious in discussions on W4 where, by unacknowledged and unarticulated common consent, Christ's example and usage are conspicuously absent -- as if, regarding such issues, He were safely irrelevant and these issues were properly secular.

While I won't deny that all political/legal issues must involve theology, I also wonder how fair you are being to WWWtW. Many commenters have written many words which explicitly bring Christ into the discussion. I can point to whole posts by the blog editors which do so, as well.

That being said, there are, as Tony points out, many issues in which theology is, properly, in the background. How to add numbers is not much of a theological issue, as long as whatever method is chosen is fair. Whether base 2 or base 16 is better to use in assembly languages in computers is not a matter for the adjudication of Scriptures.

On the other hand, every single pro-life post made by Lydia assumes the Christian perspective. One can just see it in her writing, not to mention her apologetics posts.

Unfortunately, not all political theorist share the Christian worldview and their ideas deserve to be commented on. This can make it sometimes look as though Christ has been swallowed up in the discussion, but that is just because of the necessity to make comments on someone else's position.

As for Newman, he was neither a married man nor pope. He had no successors. If you think he used slippery language, just say that.

The Chicken

Regarding Lincoln's intents, I believe it was Mark Noll who describes the Civil War as "a second founding" for America. That seems like a good way to put it. It was the end of the old order and the establishment of a strong central State . . .

It isn't just Mark Noll. I think it is the dominant narrative of all political stripes. Yet I think there are many reasons to doubt the main idea, and the supporting one that characterizes the nation before the war as a weak association of states. For an alternate opinion on the latter, and a brilliant essay and highly informational about American history in any case, see this essay:

“The State of the Union, 1776-1860,” by Donald Ratcliff in "Themes of the American Civil War: The War between the States" edited by Susan-Mary Grant.

Mark, you are wrong. The American military today, while certainly retaining much that is worthy and good, is a damnable cesspool of iniquity in comparison with previous generations. If you don't think so, it's because you don't think there is anything wrong with the pornographic and occult elements that permeate military life today. Young men with strong, moral character are certainly capable of surviving it, and I know some that do, but there is no comparison with the honor and virtue that earlier generations at least pretended to uphold.

No Jeff, my view wouldn't be because I'm fine with pornography or the occult. It would be based on family, close friends, acquaintances and co-workers I've known who served (and a couple even now) and their character, and who tell a very different story than you. A few I knew before they served. It is not uncommon at all for fathers who see their sons serve as they did, and are proud of them. My understanding also has to do with my understanding of military life in the past, which wasn't quite the virtuous ideal you seem to think. A great deal turns on one's view of the past. So much so that one can believe Matthew 7:18 false I guess.

I don't know about the rest of you, but I came to faith as an adult well after college. I went through the college experience at a state school in the Midwest, and though I would never condemn it as you might, the stories I could tell of the influences on young people amaze me even now. Very bad influences, and if you think pornography and occult are absent I've got some news for you. Things a lot worse than that, and the pull is very strong to do all manner of bad stuff. And I didn't see I had good reasons at the time not to engage in much of it. Though there are unique problems in the military, and real depredations (as I'd argue there always were,) I think your comparisons are flawed.

Wow - once I learned something was going on, I made it my business to read through the whole "age of revolution" thread, and now this one...a matter of several hours.

With few exceptions, the whole discussion takes place at a level of abstraction that even I, speaking as a very well [house-]trained philosopher, find pretty intimidating. I constantly find myself wondering what, in practical terms, it's all about. What does any of this have to do with, say, the increasing prevalence of single motherhood, or the ongoing transformation of public "education" into daycare + lefty propaganda, or the ethnic displacement of European-Americans, or any other issue that is or ought to be of concern to conservatives?

Examples & applications can be *so* helpful.

What does any of this have to do with, say, the increasing prevalence of single motherhood, or the ongoing transformation of public "education" into daycare + lefty propaganda

Well, Steve, if the federal government had been forced to stick even to *something in the ballpark of* its enumerated powers in the Constitution, none of that would be receiving federal funding. You should consider that to be of some practical relevance. There would be no EEOC, plausibly no USDA, no federal non-discrimination statutes, no Department of Education, no Medicare...You get the point. The main post mentioned the New Deal, specifically. I think at least some conservatives, and libertarians even more, might care about the change in federal power wrought by the acceptance of the New Deal. Social Security has immense policy ramifications, and it was the constitutionality of Social Security that was carried over into this very post.

So, yes, the doctrine of enumerated federal powers is one of the most pragmatically relevant political questions I can imagine.

Now, one can certainly say that much of this has already happened and isn't going to be turned back, constitutional or not. And that may be true enough (though I suspect Social Security and Medicare will collapse under their own weight, if they don't drag the entire economy down in flames first). But as I pointed out repeatedly in this thread, above, conservatives (and I might have added, libertarians) certainly want to be able to retain the _option_ of arguing against the next ginormous federal plan "for our own good" on the grounds that it is an unconstitutional power grab by the federal government. If we, as conservatives, toss the doctrine of enumerated powers out the window, we won't have that option. You'll notice I applied this abstract question of constitutional interpretation to No Child Left Behind just a couple of comments ago. Right now Obamacare is being challenged in the courts _only_ because of the last remaining vestiges of the doctrine of enumerated powers. So, again, yes, practically relevant. Very.

And originalism in constitutional interpretation gets drawn into the mix because generally the denial that we should bother with enumerated powers arises out of some sort of general notion that the Constitution changes in meaning and that we just really shouldn't care about making any attempt to stick to a stable meaning that the Constitution had at the founding. This denial of originalism comes in a number of flavors, one of them being the "living constitution" theory that, most conservatives believe, has done so much mischief in the judiciary. (Or that the judiciary has used to do so much mischief.) Again--the abstract question has a lot of rubber-meets-the-road relevance.

It might help if I added that the issue of enumerated powers and the powers of the federal Congress came up in the previous thread only pretty close to the end. It hadn't previously been the focus of discussion; it arose out of a much longer discussion of democracy. That may be part of what makes the whole thing seem confusing.

Oh, and another thing, Steve: People who are against originalism and enumerated powers sometimes think that people like me are extremist libertarian kooks who would, if we had our way, force the entire country to go cold turkey on all federal programs _tomorrow_ and throw Grannie out in the snow to die. This isn't true. I think we should try to get ourselves more prudently and gradually out of the mess we've gotten into through the vast and unconstitutional expansion of federal powers. But you can understand that from both their perspective and mine this sort of thing really does have practical relevance--perhaps even rather urgent practical relevance.

A few I knew before they served. It is not uncommon at all for fathers who see their sons serve as they did, and are proud of them. My understanding also has to do with my understanding of military life in the past, which wasn't quite the virtuous ideal you seem to think. A great deal turns on one's view of the past. So much so that one can believe Matthew 7:18 false I guess.

I agree with Mark in this: there are indeed honorable and wholesome men going into our armed forces these days, and coming out wholesome as well. I see it in my neighborhood and friends' kids. I know several men who were in various service positions who I respect greatly and am happy to be counted their friend. I have seen some of their kids go in, some not quite all put together yet, and come out fine, upstanding adults.

Nevertheless, there IS a real sea change going on. Things (harmful) that used to be officially forbidden but sometimes were tolerated unofficially are now tolerated (or even made welcome) officially. Official stances about the differences between men and women have eroded enormously, and are in a good trajectory to abolish all standards of decency as regards those differences within a decade. The incredibly stupid idea of having women serve on ships with men, causing all sorts of marital problems, is firmly established now. The unofficial but widespread cover-up of male rape is just beginning to peek into the media. In order to expect to come out of the service whole, you better have a high degree of integrity and obstinacy.

And that's all down at the basement level, looking upwards. At the top looking down, there is the near-universal political-correctness attitudes and cultures of formation. You cannot get anywhere a colonelcy without being able to talk good and fast with mind-numbing claptrap - like Islam being a religion of peace. And this affects the mind-set of how to plan for future warfare, as well.

Lydia - I think that we are, as so often, at one here.

My worries are directed otherwhere.

Tony, I agree with all you say. I think the truth is that the U. S. military is a mirror image of American culture, as it always was. I am well aware of the worrying trends you mention. I worry about it, as I worry about trends in American culture generally. For men at least, I think one's view of the American middle-class is closely related to one's view of the military that draws its members from them.

I think we should try to get ourselves more prudently and gradually out of the mess we've gotten into through the vast and unconstitutional expansion of federal powers. But you can understand that from both their perspective and mine this sort of thing really does have practical relevance--perhaps even rather urgent practical relevance.

Lydia, I agree wholeheartedly with this. But I do wonder whether a rollback would ever happen on strictly theoretical reasons. Yet I am not entirely pessimistic that the federal government's nefarious intrusions might not be reduced. We have enjoyed God's providence for some time, and some ostensibly bad things had mitigating qualities and turned out good. Likewise, because of this fallen world some things that were good have had corrupting influences in the end. I think it a truth that success is more difficult to cope with than failure.

I suppose some may have been confused by my rant about "health care" earlier, but I think it was an instructive demonstration of the massive inefficiency of government sponsored programs from decades ago. My view is that the combination of massive subsidies and regulatory regimes for food production, health and medical practices, and public education in the end have resulted in a massive influence on public behavior in what I think are a myriad of unhealthy ways. Ways to which most Conservatives and even Libertarians are not even awake. These things are mostly separate from the question of social security, though they affect it.

I think the truth is that there could be a collapse in public confidence in the expert judgment that is almost always the product of this government largesse. I sure hope so. Without that, I'm not sure that a better appreciation of Constitutional originalism would so much. Doing good things is a slope so slippery that I'm not sure humans can navigate it if good means positive actions. But what if it doesn't? What if its all a big lie, however well intentioned it may have started out? What if good means leaving things alone? A far less slippery slope there, as long as we believe in the social safety net, as we all do here.

I think we'll see sooner than many think that formal education is indeed a bubble (federal loans approaching 1 trillion,) where people will come to see they massively overpaying for very little. I suppose we could see a collapse in a number of dubious medical and health ideas that are also the result of confused and conflicted government studies that cough up astonishingly anti-scientific results and have an undeniably massive influence on public behavior--to their detriment.

As long as people let experts do their thinking for them and believe what they are told by those corrupted by government largess twice or more times over, I don't think anything will change. What we need is a massive confidence adjustment in the expert opinion. What if you thought that the government "benefits" you got weren't just unconstitutional, but bad for you? That's what I think. It would be a massive change. I have found the need to opt-out of all of these regimes to try to pursue the life I think Christ would have me live. Is it realistic to think this will ever happen? I don't pretend to know. If not, then we're headed down a road outlined in "Brave New World." But I'm just saying of the many scenarios one can imagine of the future U. S., there are ones that involve a push in the direction that many of us, myself included, would like to see down the road of decreased federal powers that are not so far-fetched. Obviously, I am speaking of a disruptive change, and that is never without danger. But it will happen if God wishes it to. If he hadn't extended his grace over us we would have gone off the rails long before now. If he doesn't we will certainly go off the rails. What we need is people praying with the confidence that God may continue to do what he's done all along.

I completely agree, Mark, that as a practical matter we'll only see any political will in the society at large to roll back any of this on policy grounds rather than theoretical grounds. My comment was merely an indication that I'm not such a theoretical dogmatist as to think that these things ought (even if I had my way, which I can't have) to be done abruptly. Like you, I have some hope that the political will for some rollback may be forthcoming as the ruinous economic and policy nature of the overblown federal government becomes apparent. For that very reason (that the disastrous policy consequences of these federal programs are becoming more evident every day) it's all the more odd for conservatives to urge other conservatives to drop their theoretical opposition to large federal government programs as a failure to accept something that is somehow now an intrinsic part of our national identity.

Lydia, sorry about that divagation into Lincoln's constitutionalism. I probably should have held that for a new post. As for Kendall on Lincoln, I had in mind his review of Harry Jaffa's Crisis of the House Divided, which thought somewhat critical was hardly a huge slam on Jaffa or Lincoln but rather credited both men with enormous achievements. A Lincoln post here at W4 several years ago actually included a big quote from that review. Here is a part of it:

The man who refutes Jaffa's controversial theses (which are legion) will have to bring to his task all the skills Jaffa shows himself to possess, and to possess beyond any other member of his generation whom I have encountered on the printed page: the skills of the historian with an encyclopedic grasp of his materials, of the all-seeing textual analyst, of the creative political philosopher, and of the literary artist who has mastered the nuances and rhythms of the rich and beautiful language bequeathed to us by Milton, Shakespeare, Burke -- and Abraham Lincoln. (Of Lincoln's right to be mentioned in this context Jaffa leaves this reader -- the Gettysburg address, incidentally, entirely apart --in no doubt at all.)

The central problem of Crisis of the House Divided is the status in the American political tradition of the "all men are created equal" clause of the Declaration of Independence. For Jaffa this is the same problem as the status of Abraham Lincoln vis-a-vis the Signers of the Declaration and the Framers of the Constitution; which, again, is the same problem as that of the very possibility of self-government, that is, of democracy, as a realistic political alternative. These three problems, Jaffa brilliantly demonstrates, were Abraham Lincoln's own deepest preoccupations from the earliest moments of his career -- preoccupations, moreover, with which he wrestled not as the smart political strategist of recent Lincoln historiography (though Jaffa is willing for us to think of Lincoln as that too), but as a political philosopher of the first order of importance.

As for the "all men are created equal" clause, Jaffa's Lincoln (and Jaffa) sees it as the indispensable presupposition of the entire American political experience; either you accept it as the standard which that experience necessarily takes as its point of departure, or you deny the meaning of the entire American experience. As for the status of Abraham Lincoln vis-a-vis the Signers and Framers, Jaffa's Lincoln sees the great task of the nineteenth century as that of affirming the cherished accomplishment of the Fathers by transcending it. Concretely, this means to construe the equality clause as having an allegedly unavoidable meaning with which it was always pregnant, but which the Fathers apprehended only dimly. As for the possibility of self-government, Jaffa's Lincoln sees it as turning on the questions: What can be done about the Caesarist potential in the system elaborated by the Framers? What can be done to prevent the passions of a self-governing people from, in the long run, taking over from their reason, so that it ignores the duties correlative to the rights self-government is intended to secure?

Jaffa's Lincoln (and Jaffa) has a crystal-clear answer to these questions: Caesarism can be avoided, the takeover by passions at the expense of reason circumvented, only through the ministrations and ultimate self-immolation of an anti-Caesar, himself as indifferent to power and glory as Caesar is avid for it -- an anti-Caesar capable of transforming the fundamental affirmations of the Signers and Framers into a political religion that men can live by. And for Jaffa these three problems reduce themselves to the question -- tacit, but present on every page of the book -- whether the Civil War was, from the standpoint of natural right and the cause of self-government, the "unnecessary war" of the historians of the past fifty or sixty years, or a war that had to be fought in the interest of freedom for all mankind.

I think that is perfectly fair to Jaffa. He does indeed see "all men are created equal" as "the indispensable presupposition of the entire American political experience." It is the key that unlocks the meaning of the Constitution, and therefore has its own deep constitutional status.

Kendall concludes that review by worrying that the "Caesarist potential in the system elaborated by the Framers" is now in the saddle; and that "the Caesarism we all need to fear is the contemporary Liberal movement, dedicated like Lincoln to egalitarian reforms sanctioned by mandates emanating from national majorities -- a movement which is Lincoln's legitimate offspring." He concludes that "we had best learn to live up to the Framers before we seek to transcend them."

Concrete examples of Washington's influence on the development of the Executive could be made of the tradition of two terms (which was, of course, eventually codified by amendment after FDR violated the tradition), the pattern of standing aloof to congressional party (owing more to the example of kings than of, say, prime ministers), the customs of communication with Congress (which were followed carefully for a very long time), and the neutrality of American foreign policy toward European turmoil.

Tony's point about the distinction between law and tradition is well taken, but I persist in believing that much of the Constitution cannot be understood absent traditions of interpretation. The text is too sparse; elaboration is required. Much of what appears to us as originalism is really one of those traditions of interpretation, the oldest and most influential being that of the The Federalist.

As far as I can tell, Paul, not a single one of your traditions from Washington is necessary to interpretation of the Constitution nor is, in any sense, part of the Constitution. That's why it was *not unconstitutional* for a President to serve more than two terms until an amendment was made.

It is confusing to treat The Federalist as merely one among other "traditions of interpretation." Why is that confusing? Because The Federalist antedates the Constitution and will therefore be of special help to originalists for understanding what the Constitution originally meant--meant, that is, to the people who wrote it and ratified it. That's the whole point of originalism--that it isn't about some sort of ever-flowing, ever-changing tradition that osmotically changes the very meaning of the text of the Constitution but is about the meaning of something a person says or something people write *originally*. Hence, not all things that a person might want to call "traditions of interpretation" are created equal. (In this sense, the Constitution is like other texts, and especially like texts co-written by more than one person. Anti-originalists probably wouldn't appreciate it much if people applied to their writings the approach that they wish to apply to the Constitution.)

Things like Madison's lengthy speech from which I quoted above are also specially relevant as helping to tell us, as an historical matter, what the relation between the preamble and the rest of the Constitution originally was in the minds of the Framers and ratifiers. It can address the question of whether enumeration of powers is some quaint modern libertarian fantasy or, rather, crucial to the very structure of our country from the outset. One might have already suspected the latter from the very existence of the 10th amendment. As far as I'm concerned, the several explicit, lengthy, and unequivocal statements that I have found from Publius and Madison (though I gather Federalist 45 is attributed specifically to Madison, so perhaps this is redundant) are absolutely decisive on this point, and anyone who brushes aside enumeration as impossible to apply in practice or irrelevant to the nature of America at the founding is just plain wrong.

Essentially, the originalist approach to understanding either the first constitution or any amendments is an historical approach. If I want to know whether the 13th amendment's prohibition on involuntary servitude means that the draft is unconstitutional (!), I look at the legislative history of the amendment and the immediate applications of it thereafter. Now _that's_ a libertarian fantasy--that is, that the draft is unconstitutional. And an originalist, historical approach tells us that it is. And the same with other questions--e.g., would the framers have understood it to be a deprivation of property for a person who committed a murder not to get the life insurance of his victim? This isn't a matter of a _changing_ meaning but rather of discovering upon historical investigation that the life insurance would not have been considered to be his property, because he committed murder to get it. Hence, the historical, common-sense answer to that question is "no."

It is simply a source of confusion to say "the Constitution cannot be understood absent traditions of interpretation" as though this in any way, shape, or form supports the notion that the Constitution changes osmotically over time, absent the amendment process. The distinction is fairly stark: It is between interpretation as a commonsensical and historical enterprise which attempts to discover something objective and stable and an abstract and philosophical enterprise with an unclear object--an attempt to "apply traditions of interpretation" to a text with an ever-morphing meaning.

I was away most of the weekend from a computer, so I missed out on this most interesting and vigorous debate. I just read through most of the comments, although probably not as carefully as Steve Burton ;-)

Anyway, something that occurred to me, since I just bothered to go look at the Constitution is the following question:

- everyone has been talking about the preamble to the Constitution and whether or not it should give Congress the power to legislate on matters that were not enumerated in Section 8; however, what does one make of the opening of Section 8 which says the following:

1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
- so right there in number (1) is the power to "provide for the...general Welfare of the United States;" -- true it does this only through taxation, but it seems like there is an implied power there to do just about anything with that tax money as long as Congress can argue it is for the "general Welfare"

Of course, what is strange about the document is that it then goes into detail in numbers 2-17 on what Congress can do more specifically, including specificity concerning the "common Defence", but I still wonder how the Congress and maybe even Supreme Court decisions dealt with what number (1) means...

Jeff, I think Madison addresses this issue in the above speech, and in fact, it would explain his reference to matters which "admit of the application of money," which I had previously been a bit puzzled about. If we take that phrase as a reference to precisely the question you are raising about Section 8 (is there an implied power to do just about anything with that tax money?), his comments make perfect sense:

This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever -- to all such, at least, as will admit the application of money -- which is giving as much latitude as any government could well desire.

In fact, it's even possible that when he refers to "a sort of caption" he may, contrary to what I had previously thought, be referring not to the preamble to the entire Constitution but to this preliminary phrase in Section 8. If so, however, the point would be that much stronger as applied to the preamble to the entire Constitution: If this phrase in Section 8 does not give Congress the power to do anything it likes with the money, how much the less would the preamble to the whole Constitution, without reference specifically to Congress, give Congress such sweeping powers?

"Commutation for drawback," by the way, appears (as far as I can tell from some quick research) to be something like a tax refund on the import tariff paid on salt they were buying from abroad to cure the fish they were then exporting. Apparently this was the form that these "bounties" to the fish trade took. Madison's objection appears to be not so much to giving the fishermen a tax refund for part of the tariffs when they sell the salted fish back abroad but to giving them a handout outright from the public treasury, simply on the grounds that the fishing trade is good for the general welfare.

If the sentence, "The New Deal is part of our Constitution now" means anything, I'm afraid it means an acceptance of the doctrine of the living Constitution. Which, of course, has precisely the consequence that no one can tell "where the limits are, what the rules are, what's up for grabs and what isn't." For example, it is entirely on the cards that the "living and changing Constitution" will "include" a right for homosexuals to "marry" before too long. No reason why it couldn't.

The problem with this, from a practical perspective, is that the federal government's legal claim to authority is the Constitution. As the Constitution dies, so does the federal government's moral claim to the obedience of the US population. This is why there is no legitimate case for the federal government to stop Arizona from raising its own paramilitary force, or even its own standing army in direct defiance of federal law and the Constitution, to protect its borders. Having drastically weakened its legal foundation, the federal government no longer has a moral claim against usurpers, only a force-based one.

**The federal government in 1861 had a vastly superior claim to the obedience of the South than it does today, as the federal government of 1861 was still almost completely operating within the boundaries of the US Constitution.

Mike T., what you say is understandable. If the federal government is deceptively twisting the Constitution to justify increasing its own power, why should the states not _openly_ defy the federal government and the Constitution? But no one wants another civil war, and any such outbreak would be quelled, possibly bloodily. Hence the criteria of just war would make such defiance wrong. Whether it is wrong for any other reason--that is, simply _because_ it would be a defiance of the Constitution--is difficult to say and probably turns on the question of whether revolution is ever morally justified. It would have to be recognized that such open defiance really is a revolution against existing government.

Interestingly, over the weekend I ran into a secondary discussion of a Federalist (which I haven't had time to track down and read en toto) in which Publius apparently said that the if the federal government tried to exercise tyrannical powers, the states could make it not worth the federal government's while simply by refusing to cooperate. He seems to have had in mind some sort of passive resistance, but I don't know how much detail he went into. For the states simply to refuse in some non-military way to cooperate with written federal laws that are unconstitutional seems to me a lot more justifiable than for them to raise an army.

For the states simply to refuse in some non-military way to cooperate with written federal laws that are unconstitutional seems to me a lot more justifiable than for them to raise an army.

Note: I said it was their right to raise an army to protect their borders if the feds won't do it for them. Nothing more than that. No sinister, Fort Sumter-like scenarios.

As far as I can tell, Paul, not a single one of your traditions from Washington is necessary to interpretation of the Constitution nor is, in any sense, part of the Constitution. That's why it was *not unconstitutional* for a President to serve more than two terms until an amendment was made.

I don't know why this should tell against my point. Certainly it is those areas where the Constitution is silent or inchoate that will exhibit the most development, and be most subject to interpretation.

The Constitution is basically silent on many of the areas where the New Deal proposed to innovate. How the Article I, Sec. 8 passage that Jeff Singer quoted, granting to Congress a very broad and indefinite power to raise revenue, could be construed, via the 10th Amendment or something, as prohibiting revenue-raising for the purpose of the general welfare of the elderly, is not at all clear to me.

Essentially, the originalist approach to understanding either the first constitution or any amendments is an historical approach.

This and your subsequent discussion leaves me feeling that "originalism" is therefore a very broad term that could surely encompass my views. I just have a lot of doubt as to whether the enumerated powers doctrine, as argued around here lately, really represents that original, historical understanding of Framers on the republican form of government.

I too favor a historical approach that inquires into what the Framers understood themselves to be saying about self-government. So for instance a question I often ask myself in studying these matters is "what did the Framers think the Legislative power in a republic should look like?" It is clear that in the republican form of government, when things are functioning properly, most of the important action is in the legislative assembly: for that is the only institution where the people's reason as a whole is, as it were, gathered up and made applicable. In a despotism, legislation is merely the will of the tyrant. But in a free republic, will must be assembled and softened by deliberation and compromise into stable law; it must nevertheless retain enough force to keep the Executive a honest man, carrying out that will by enforcing that law faithfully.

So I do think it vital to understand the legislative assembly as the Framers understood it, not as we (witnesses of its long decay as an institution) understand it. I think the supreme symbol of the American political tradition is this image of the solemn assembly of freemen, representatives of the people, past, future and present, covenanting together to deliberate on law and justice.

Because my study of the American political tradition leads me to this view of the importance of the deliberative assembly, I do tend to believe the Constitution gives a wider grant of power to Congress than folks who espouse a hard enumerate powers doctrine.

I just have a lot of doubt as to whether the enumerated powers doctrine, as argued around here lately, really represents that original, historical understanding of Framers on the republican form of government.

That seems really astonishing to me in light of the _several explicit statements_ I have already referred to from Madison addressing this very issue--indeed, addressing the supposed "grant of broad power" in Section 8, on which point I answered Jeff's question very clearly. He _even gives as an example_ "assume the provision of the poor" as a reductio of the argument for a grant of broad power!! It's just a knock-down, if one is engaging in an historical investigation. And he implies, quite rightly, that the states would never have ratified the Constitution without believing that the powers were delegated, enumerated, and hence limited. Indeed, Publius brings up this very point in answer to Brutus in Federalist 45.

and be most subject to interpretation.

No, a tradition of what the Presidents choose to do (e.g., serve only for two terms) isn't an interpretation. That's why an amendment was needed to make a third term unconstitutional. Otherwise, it just wasn't. Just untraditional.

I think we'll see sooner than many think that formal education is indeed a bubble (federal loans approaching 1 trillion,) where people will come to see they massively overpaying for very little. I suppose we could see a collapse in a number of dubious medical and health ideas that are also the result of confused and conflicted government studies that cough up astonishingly anti-scientific results and have an undeniably massive influence on public behavior--to their detriment.

I am conflicted in these areas. There is no education bubble, per se, as if the idea that being educated, in itself, if an unobtainable fantasy. There is a bubble in terms of the financial expectations resulting from an expectation. Then again, I do not see education as being connected with money. While I might like a job in the areas I study, I study them because I cannot do otherwise. It is what I am called to do.

The thing is that many people go to college, today, for the thought money, not the education. In my opinion, they would be tetter off in a vocational school. College is place to do two things, primarily: hone one's reasoning skills by engaging in reasoned discussion, and learning how to teach oneself. Once one has mastered these two things, one can pretty much apply them to any subject. I once walked into a graduate level plant anatomy class without any previous college-level courses in biology. I need the class for some research I was doing. I had no problem in the class because I knew how to study.

Sadly, many students sell their textbooks back the moment the class is over. What's the use of doing that unless they couldn't care less about the subject? If that is the case, then they are just jumping through hoops and should get out of their major, as, clearly, they can see no connection between what they have just finished studying and its eventual use. Talent is not the same thing as a calling. There are many people with musical talents, but few with a real vocation. I see many talented people on American Idol, but few of the will ever enrich the field by their presence in it.

I suspect this lack of respect for being educated, as opposed to mere education, goes lock-step along with the deterioration in civility and morals in society, today. Instructing the ignorant (including oneself) is a corporal work of mercy, but we live in a society with dwindling mercy and increasing selfishness. All bubbles are an expression of greed. The so-called education bubble exists because many going to college don't understand what they are doing there. I do not agree that it is a bubble, just the irony of people disenfranchized from life. If we loved in a society that valued people, the education bubble would vanish, since education at most colleges have become increasingly separated from it's intended purpose-the betterment of man. Learning how to make 1 million dollars a minute by refining just-in-time trading schemes, ultimately, puts an education at the service of money and not of people. That is what caused both the tech and housing crises. It is what is fueling the delusions many have about education. Education is still a great good, but neither the greedy colleges nor the greedy students will lift a finger to really put their educational goods at the service of others. They say the are pro-students. Liars! They are pro-money. Socrates and the Parapatetics had it right - education must travel from person to person, not from person to wallet. Colleges will soon crumble because they want their students to be rich more than they want their students to be able to think. Perhaps if they could think, they would demand more of the colleges and perhaps make them better places of real education in the future.

The Chicken

Oops..should read:

There is a bubble in terms of the financial expectations resulting from an education.

The Chicken

Oh, good grief. Ignore the massive spelling errors in my long post, above. Clearly, I have not mastered typing on an IPad with autocorrect engaged.

The Chocken

Lydia,

Thanks for your answer and for posting that long Madison quote (which I ignored the first time around). I think you make a strong argument for enumerated powers and for looking at 2-17 in Section 8 as what is actually allowed Congress by the Constitution. Which therefore, suggests to me that Social Security, whatever your opinion about the law as public policy, was arguable unconstitutional.

Early Steve asked what all these discussion had to do with practical policy -- I liked your answer and I would also add that I think the Tea Party movement understands this problem and this is why the new Congress is forcing new bills written in the House to reference the constitutional provision that gives legislators warrant to craft the legislation in the first place. I think this small step is a step in the right direction of trying to force our government to take their constitutional limits more seriously.

Thanks, Jeff. And there's even more where that came from. :-) Seriously, I do agree that it's a step in the right direction for the House to be doing this. As long as they don't get as creative as GWB with the No Child Left Behind (see above), it could be useful. But I was under the impression that this was not new, though it had become something of a meaningless ritual. I think even the Obamacare bill threw in a throwaway reference to the commerce clause, which of course they are now being forced to defend in earnest in the courts.

And there's even more where that came from. :-)

Indeed. Jeff, you may be interested in the following quotation from Jefferson.

The context is his argument regarding the unconstitutionality of a bill to establish a national bank in 1791. He first points to the tenth amendment (which he calls the twelfth amendment, since the ratification of the first ten amendments would not occur until later that year) and then notes that the "powers specially enumerated" that one might attempt to use to justify the federal establishment of a national bank do not apply to the bill in question. Then comes his discussion of the "general phrases," the first of which concerns "the general welfare" and the second of which concerns laws "necessary and proper" etc. I will quote here his discussion of the first phrase (bold mine):

1. “To lay taxes to provide for the general welfare of the United States;” that is to say, “to lay taxes for the purpose of providing for the general welfare;” for the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. Congress are not to lay taxes ad libitum, for any purpose they please; but only to pay the debts, or provide for the welfare, of the Union. In like manner, they are not to do any thing they please, to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase — that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they pleased. It is an established rule of construction, where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means, was rejected as an end by the Convention which formed the Constitution. A proposition was made to them, to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected; and one of the reasons of objection urged in debate was, that they then would have a power to erect a bank, which would render great cities, where there were prejudices and jealousies on that subject, adverse to the reception of the Constitution.

In short, if one interprets the part about "general welfare" to mean that Congress can do anything to provide for the general welfare, then the enumeration of powers is superfluous--even "useless," as Jefferson points out. Since the interpretation lends itself to such an absurdity, it is thus an incorrect interpretation. Indeed, why would the Framers of the Constitution quibble over the enumerated powers if they really meant to give broad, sweeping powers to the federal government?

The quotation, in context, is available here:

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1908&chapter=112468&layout=html&Itemid=27

I had thought of that argument myself, Jonathan--the very argument that Jefferson makes--and I think Jeff had tacitly thought of it when he first brought up the question and pointed out the oddity of having the powers enumerated immediately after the "general welfare" phrase. Why bother naming them if all the power they could want was included in #1? And we could go farther: If someone tries to say that the powers enumerated are examples, and that it's in some vague sense "things like that" that are in view (whatever that would mean), well, most of the social programs that are most controversial nowadays aren't like any of the enumerated powers at all. (Which is why, presumably, Madison is so scathing about the extension of the federal power to things such as education and welfare. He expects his audience to consider that a knock-down argument against the interpretation he is rebutting.) So even an "exemplar" view won't get one anywhere near the government we actually have.

The truth is there's an embarrassment of riches when it comes to the founders and the enumeration of powers. One could list one thing and then say, "And if that's not enough, there's also _this_." For example, I picked up Federalist 41 (figuratively speaking; it was an electronic copy) for the first time today. It sets out to allay fears of an over-powerful federal government by systematically going through the powers "conferred on the government of the union" by the Constitution in order to show that they are all legitimate and nothing to be upset about.

http://www.constitution.org/fed/federa41.htm

And I already mentioned Federalist 45, which states,

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

What would be the point of any of that as a way of reassuring those opposed to ratification if, in actuality, the powers of the federal Congress were not "few and defined" but rather very broad and undefined? Publius's entire approach, his entire argument, would have been downright deceptive.

But if that's not enough, we have these explicit statements by the founders answering the anti-enumeration position in so many words. Once one takes an historical approach, the evidence comes in like a flood. Which is why most of our contemporary theorists who want larger powers for Congress _do not_ take an historical approach.

But if that's not enough, we have these explicit statements by the founders answering the anti-enumeration position in so many words. Once one takes an historical approach, the evidence comes in like a flood. Which is why most of our contemporary theorists who want larger powers for Congress _do not_ take an historical approach.

Which is ironic since the Constitution has a simple process for being amended. Quite a lot that the federal government does would hardly be controversial if formally adopted by clarifying amendments. For example, a clarifying amendment specifically authorizing the Department of Transportation's work would likely pass a majority of state legislatures within a single year.

I'm a cynic. Here's what I think would happen if someone started trying to pass ex post facto amendments. Language would be slipped into them that would be intended to be interpreted by the courts in some weird, controversial way that did more than just confirming what is already in place. Who knows what it might be. The liberals are pretty creative. They could probably find a way to put some environmentalist provision into a department of transportation amendment. Then the advocates would lie and say that this was "just confirming what we already have." The opponents would argue that this was untrue, and that anyway, if it's already confirming what the courts have permitted, it would be unnecessary. If the amendment passed, it would do additional mischief.

The liberals are pretty creative. They could probably find a way to put some environmentalist provision into a department of transportation amendment. Then the advocates would lie and say that this was "just confirming what we already have.

They could try, but Constitutional amendments have always tended to be small compared to legislation. It would be easy to reject that language. Once an amendment passes Congress, the liberals cannot insert language into it unless they successfully call a constitutional convention. They wouldn't do that because today a constitutional convention would likely lead to show how divided we are and risk bringing that division to a flashpoint capable of causing a second wave of secession.

The idea of raising a governing majority to actually roll back the New Deal is quixotic fantasy. Even in the most fiscally conservative moment in recent history, the idea of simply removing all the social democratic infrastructure of the New Deal is not even being broached by GOP politicians. Not even Sen. Rand Paul proposes it.

And the day that ever changes is the day Satan has triumphed over Jesus.

I'm a cynic. Here's what I think would happen if someone started trying to pass ex post facto amendments. Language would be slipped into them that would be intended to be interpreted by the courts in some weird, controversial way that did more than just confirming what is already in place. Who knows what it might be.

Maybe, but I think Mike T. has a point. These are different times. The ERA is a dead letter and Phyllis Schafly, God bless her, is still living in the 1970s:

http://www.youtube.com/watch?v=O_4ZZRj1nnE

One reason we might need a constitutional convention is the existence of a genuine constitutional crisis: i.e., if our country were no longer truly governed by our Constitution, all other remedies to restore constitutional government having either been exhausted or deemed undesirable for whatever reason. Do we have that sort of a crisis today? Arguably, yes. Arguably, democracy-as-usual is simply never going to restore orginalism, the 10th amendment, ennumerated powers or constitutional integrity. But the American states, many of which today seem to be rediscovering their historic independence and identities, albeit in a new way and without wholly repudiating the New Deal and other precedents, are increasingly fed up with Washington's arrogant mandates, Obamacare being the latest outrage.

The time may be ripe for an Article V convention which clarifies both state's rights and the limits of federal authority. If this results is "grandfathering" certain New Deal programs and their successors, the states should fight for an "opt out" provision.

I've always been one who believes that Order is the pre-eminent social concern. Imperfect rules, more often than not, are better than no rules at all. If I like certain federal programs, and I do, I like having an authoritative constitution even more, and would willingly sacrifice the former for the sake of the latter. I would hope that my fellow conservatives, who presumably also value Order appropriately, would be willing to sacrifice an unenforced and non-authoritative Constitution, which they like the best, for the sake an enforceable and authoritative Constitution which they deem imperfect.

Ed,
Before you start talking about the defeat of Jesus, the first thing you need to learn is that He was no social democrat.

Jeff, the only reason the ERA is "dead" is because they got nearly all of what they wanted from it via phony interpretations of the 14th amendment. Think VMI.

Here's the thing about your constitutional convention proposal (maybe I didn't say this well enough above): Constitutional amendments pass as stand-alone items. There is no particular advantage to the conservative who wants to pass an amendment to, say, prohibit homosexual "marriage" if the conservative also supports an amendment to constitutionalize social security. It's not like it's a single, omnibus law for which we have to form a coalition of support. Even if a convention were called, each amendment would pass or fail separately. And that's definitely how it should be. The last thing we want to do is to try to pass some gigantic amendment that includes a bunch of unrelated provisions.

Now what this means in effect is that there's no reason for me to support an amendment that constitutionalizes something I think is really bad policy. It would just clutter the thread for me to tell you all the policy objections I have to U.S. Social Security, but they begin with its being a gigantic lie, a Ponzi scheme which should be illegal rather than government-run, rather than simply a welfare program for the needy elderly.

It's not as though it's at all likely to give people more respect for the Constitution for us to constitutionalize all this stuff that is never going to be overturned by the courts anyway. Probably you and I disagree about that, but I think it's true. I think people probably would grasp a notion of, "This was unconstitutional, but the American people won't support overturning it in one fell swoop now (which is what would happen with a court declaration that it is definitely unconstitutional and "struck down"), but from *now on* we're not going to pass any more unconstitutional federal programs." Whether they would support that approach or not, I think they could understand it, many might support it, and the very fact of stating _openly_ that these things are unconstitutional would be a breath of fresh air and would have all the positive effect that attempts to pass ex post facto amendments to constitutionalize bad policy could have, without the risks.

One of those risks is simply the psychological effect of giving people the impression that those programs *should not* ever be turned back, even by Congress. Legally, that needn't be a correct view of the situation after constitutionalization. Congress could be authorized to do something at its discretion without having a mandate to do it, if an amendment were worded carefully enough. But as sure as God made little green apples, an ex post facto constitutionalization would be regarded as a mandate, which obviously someone in my position does not want. I would prefer a vigorous debate about repealing some of these things and, at least, returning the responsibility to the states, and I'm much more likely to get that with a simple admission that these big federal programs are unconstitutional and without trying to "fix" that after the fact.

Compare my attitude to Social Security here, Jeff, to what I would guess is your attitude to the existence of the federal Department of Education. That's unconstitutional as well, on the same type of argument we've been having here. I don't imagine you consider that there is any particular importance in passing a constitutional amendment to authorize Congress to set up and maintain the federal Department of Education. Who needs it? It does no good that I know of and is always hanging around at our elbow threatening to metastasize and assume even greater powers. Not too long ago it was a conservative and even a Republican priority to abolish it by act of Congress, and would that it were still such a priority. So why would we want to waste energy passing an amendment to make it constitutional?

On the state opt-out, Jeff, I certainly agree that that would be an improvement over the present situation. I think it unlikely that we would have a political situation in which 3/4 of the states supported an amendment authorizing these programs and including an opt-out provision but the opt-out provision could not pass Congress in the ordinary legislative way. Whether or not such a situation obtains, because I consider these programs exceedingly poor policy, I would prefer to lobby Congress to attach the opt-out to their regular bills. The idea being, "If you _must_ pass these dreadful bills and set up these gigantic federal programs, _at least_ allow the states to opt out of the programs." Passing an authorizing constitutional amendment with a state opt-out clause does not have anything like the same meaning--either legally or rhetorically.

Michael, before you start talking about the New Deal in pejorative terms, you need to realize that Jesus would have disapproved of none of it.

For that matter, you might want to study the New Deal and compare it to a solid definition of what social democracy is. Apparently you have some odd view that the New Deal was socialism in the raw, or otherwise unsavory to conservatives.

Which part of the New Deal do you think was opposed to any teaching of Jesus, or any part of Christianity? Which part would you care to make a case was a bad idea?

In general, in bland non-specifics, ranting against the New Deal is funny, a one-liner for a comedian pandering to fascistic fur-wearing blue-hairs. In specific, in a proposal to roll it back, it's monstrous, and anti-American.

Could we even get enough state to ratify an amendment anymore? I think Lydia is correct - phony interpretations of existing parts of the Consitution give enough coverage to pass almost any law. Clearly, it was NEVER the intent of a single person who ratified the Constitution to think that it would be used to allow either abortion or homosexual union and yet, here we are. Why mess with the Constitution when it is the perfect puppet document for anyone and everyone? Essentially, it makes the Constitution worthless as a guiding document, but since when do rich and powerful men think they need to be guided by anything?

The Chicken

fascistic fur-wearing blue-hairs.

Nice chap we've picked up here. Sign me up for the Fascistic Fur-wearing Blue-hair Club. Except that I don't happen to own any furs, and my hair isn't blue. But maybe I could get some fur somewhere.

Well, Chicken, cynic though I am, I would support constitutional amendments that actually tried to do something specific, policy-wise, that I wanted done. Of course our Robed Masters can be lawless about it, but we could try to give them less excuse. I just have little enthusiasm for authorizing things ex post facto that I don't want done anyway.

I think this becomes obvious as we talk about worse and worse federal activities: "Hey, they're still giving money to support forced abortions in China, but at least now they're doing it constitutionally." It just doesn't, and shouldn't, make for much conservative excitement.

Not that I'm saying the Social Security is on a par with that, but I do think it very bad policy.

Nice chap we've picked up here. Sign me up for the Fascistic Fur-wearing Blue-hair Club. Except that I don't happen to own any furs, and my hair isn't blue. But maybe I could get some fur somewhere.

Coulda guessed, sadly: No fur, no blue hair, but doesn't deny "fascist."

The original proposal was a clue.

Or, let us hope, just an oversight, yes?

Got a few cases to cite for us on that?

No?

Got any history to suggest that's the case, like a state legislature noting that the effects of the ERA were already in force, so there was no need for an amendment?

No?

Neither law nor history would support that assertion.

Compare my attitude to Social Security here, Jeff, to what I would guess is your attitude to the existence of the federal Department of Education. That's unconstitutional as well, on the same type of argument we've been having here. I don't imagine you consider that there is any particular importance in passing a constitutional amendment to authorize Congress to set up and maintain the federal Department of Education.

True. But while a constitutional convention (henceforth CC) would risk validating the loathsome Dept. of Education, it's much easier to make the case that this agency is not only unconstitutional but is also a vehicle for doing a great deal of harm. That's a much more difficult sell with respect to, say, SSI and Medicare.

I'm well aware of your opposition to these policies, as policies, apart from the question of their constitutionality. Though I really don't understand your visceral hostility to SSI, I certainly do grant that some arguments against the program are weighty and respectable:

http://mises.org/daily/2451

Nevertheless, I think SSI is a very small part of the picture when it comes to negative influences on the birth rate. It should be possible to re-incentivize extended families over time, in many other ways, before removing SSI support from the elderly who just don't have such families anymore. Even after that aspect of the problem is solved I expect that some form of social insurance would still be desirable. At that point (and probably sooner), the burden should be light enough to be assumed by the states and private institutions.

As an aside, it might help in the meantime to just go ahead and reform SSI on the lines of pure relief for the elderly in need. Away with this pretense of forced "saving" for retirement! There's no reason why comfortable pensioners should be receiving SSI checks.

As an aside, it might help in the meantime to just go ahead and reform SSI on the lines of pure relief for the elderly in need. Away with this pretense of forced "saving" for retirement! There's no reason why comfortable pensioners should be receiving SSI checks.

Which would not by any means remove all my objections (particularly to Medicare, which is another whole kettle of fish and in my opinion has badly warped our entire medical system), but would remove a lot of that visceral loathing. The savings for retirement claim is a lie. The money isn't there. It's been spent. It is continually spent. That really is called a Ponzi scheme in the private sector, and it is illegal there--to pretend that you are investing people's money for them while merely giving it out the back door to other "investors."

Yes, in my opinion Medicare is doing huge harm, in case that wasn't clear. :-)

There is another thing about Social Security, too: It's turned into a program for all the disabled as well as the elderly--a positive inducement to fraud, among other things.

OK, Lydia, but what's you're position on Medicare? ;-)

ANY system of insurance or financial relief is an inducement to fraud.

The problem with the "traditions of interpretation" argument is that the "Living Constitution" school has been around long enough to constitute its own tradition. And in my view, it's necessary to develop a comprehensive judicial theory like originalism or textualism--those "isms" which Burkeans so disdain--to kill the reigning judicial orthodoxy.

I think the Social Security is beset by some major, perhaps fatal, flaws; but I also think that conservatives have not infrequently exaggerated its financial unsoundness. My wife (who works in the actuarial field) brought home some analyses of the "trust fund" recently: I was decidedly underwhelmed. For one thing, folks constantly assert that SS is "going bankrupt," when what they really mean is "the trust fund will soon fall short of its obligations, so Congress will have to appropriate money from general revenue." Largely this is a result of demographics (a declining private workforce and aging population) and the recession, not fraudulent finances. Reforms like means-testing or raising the retirement age could alleviate the problems.

On Social Security's constitutionality, it would be very useful if those who believe it to be unconstitutional could track down some suitable literature, contemporary to passage of the legislation, laying out the case for this belief.

Whittaker Chambers, in reassessing the New Deal late in his life, posited that it represented kind of slow-motion revolution: the massive substitution of the power of business by the power of politics. I think that is spot-on.

If we adjudge the New Deal unconstitutional, we are not, strictly speaking, saying anything directly on the question of whether what came before the New Deal was constitutional. And it ought to be carefully noticed that plenty of serious American thinkers registered a negative on this question. There was a long tradition of narrow constitutional construction that opposed, for instance, those numerous schemes of internal improvements undertaken throughout the 19th century and culminating in the at times openly corporatist alliance of the Federal state and the big railroads. There is a parallel traditional of opposition, again on constitutional grounds, to the several National Banks chartered in Washington. John Marshall's Court in McCulloch v. Maryland upheld the constitutionality of the Second Bank of the US, citing the Necessary and Proper Clause to establish the principle of implied powers, where those powers concern the implementation of expressed powers.

There are also grounds for doubting the constitutionality of the innovations effected by the Court in the late 19th century by way of establishing the protections for the artificial legal personhood of the business corporation. The infamous obiter dictum of the Court Reporter (a former railroad executive!) in Santa Clara County v. Southern Pacific Railroad was a really extraordinary piece of legerdemain. "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." And like that, the corporation was bestowed a constitutional protection never contemplated by the Framers or (we may fairly suppose) the framers of the 14th Amendment. Where was it enumerated in the Constitution that the Supreme Court could make this bestowal? In fairness, as Prof. Gordon Wood illustrates in Empire of Liberty, the development of the business corporation in American law had long been a haphazard and progressive undertaking, and one not always particularly correlated with careful constitutional reasoning.

All of which is to say that there is a lot going on here, historically. Studying the Framers does not always disclose clear-cut answers. We do not always even find consistency in the same man. James Madison joined Jefferson in opposing Hamilton's First Bank of the US on constitutional grounds, then signed the charter of the Second Bank a quarter century later. Jefferson, in opposing the Alien and Sedition Acts, laid the groundwork for the doctrine of Nullification; then, as President, found that national security was rather more difficult from the other side, the responsible side, in a world teaming with wild revolutionaries and reactionaries emanating from France.

I do agree with my esteemed colleagues that when a whole influential chunk of the country (liberals in the legal profession) has more or less abandoned the idea of constitutional law in the sense that our forbears understood it, it becomes very difficult to sort these problems out in a manner faithful to the inheritance we have received from those forbears.

1) My wife (who works in the actuarial field) brought home some analyses of the "trust fund" recently: I was decidedly underwhelmed. For one thing, folks constantly assert that SS is "going bankrupt," when what they really mean is "the trust fund will soon fall short of its obligations, so Congress will have to appropriate money from general revenue." Largely this is a result of demographics (a declining private workforce and aging population) and the recession, not fraudulent finances.

"The beauty of social insurance is that it is actuarially unsound. Everyone who reaches retirement age is given benefit privileges that far exceed anything he has paid in -- exceed his payments by more than ten times (or five times counting employer payments)! How is it possible? It stems from the fact that the national product is growing at a compound interest rate and can be expected to do so for as far ahead as the eye cannot see. Always there are more youths than old folks in a growing population. ...A growing nation is the greatest Ponzi game ever contrived."--Paul Samuelson

And when the demographics go south, the Ponzi scheme collapses. I find it remarkable that you are so underwhelmed by a program structured to be actuarially unsound.

2) It's certainly true that the framers and ratifiers of the Constitution were not of one mind, but even Hamilton and Marshall would be nonplussed by the current scope of federal power:

"Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government." Federalist 17

(Hamilton, of course, grossly underestimated the allurements of local matters to ambitious politicians.) So I still don't think that you have adequately addressed the objections to your view of judicial interpretation.

And when the demographics go south, the Ponzi scheme collapses. I find it remarkable that you are so underwhelmed by a program structured to be actuarially unsound.

Roosevelt and others assumed business would step up to do the moral thing, to create good pension programs. The failure of Social Security can be placed squarely in the lap of those who have worked, and worked hard over the past 60 years, to frustrate the creation of good, workable pension and retirement programs in the private sector.

We could get more government involvement to do it, but then, wasn't that what you wanted to avoid?

Irresponsibility on the part of businesses and businessmen is not a failing of the New Deal. It's the reason for the New Deal.

Got a history book?

True. But while a constitutional convention (henceforth CC) would risk validating the loathsome Dept. of Education, it's much easier to make the case that this agency is not only unconstitutional but is also a vehicle for doing a great deal of harm. That's a much more difficult sell with respect to, say, SSI and Medicare.

Well, yeah, an education department is a bad idea -- if you want a totalitarian state, if you want an oligarchy, if you have great problems with democratic institutions and their preservation.

Jefferson was right. We need public schools, and he may have been right that it should have been included in the Constitution, as a right to be protected.

It is astonishing to see anyone defending Ebenezer Scrooge's views, I mean those views prior to his epiphany.

(Hamilton, of course, grossly underestimated the allurements of local matters to ambitious politicians.)

Hamilton grossly underestimated the damage that large corporations and banks, even and especially small local banks, could do to agriculture, business, and the ownership of private property.

Given the grotesque foreclosings of the 1930s, who can make a case that Hamilton would not have loved the New Deal?

Got a history book?

I do agree with my esteemed colleagues that when a whole influential chunk of the country (liberals in the legal profession) has more or less abandoned the idea of constitutional law in the sense that our forbears understood it, it becomes very difficult to sort these problems out in a manner faithful to the inheritance we have received from those forbears.

Would you also agree that unsupported, unwarranted gross generalizations rarely lend light to an issue?

We whom you, often inaccurately, describe as "liberals in the legal profession" wonder why it is you have abandoned the idea of constitutional law in the sense that our forebears understood it, to build the nation, to make government work for the people (and not make the people work for either government, oligarchy or business).

If you reject the history of the U.S., you'll have a difficult time understanding why the U.S. laws are as they are. If you don't reject the history of the U.S., you won't make such sweeping, incorrect assumptions.

(Do you really regard William Jennings Bryan as a "liberal?")

So far, Ed Darrell, your approach to dialogue has largely consisted of the equivalent of crashing a party and pissing on the floor of the host's house. I promise you we can delete comments faster than you can write them, and banning a commenter is no overly complicated an operation either. Consider this a warning.

Got any class?

http://www.whatswrongwiththeworld.net/welcome.html

Jeff,

I would hope that my fellow conservatives, who presumably also value Order appropriately, would be willing to sacrifice an unenforced and non-authoritative Constitution, which they like the best, for the sake an enforceable and authoritative Constitution which they deem imperfect.

As I said before here, the real danger is that it would break apart our system. I think it's more likely that a convention would show that the United States is now so fractured that we can't agree on a common vision than produce a working constitution. Even if we got a working constitution, it'd only be a matter of time before we faced the same problems.

A significant portion of the reason why we have such a broken system is that we rely on the good graces of the federal government to police itself. There ought to be mechanisms by which the states can arrest and imprison federal appointees and politicians who participate in the passage of legislation that judicial review determines has violated the Constitution. There also ought to be a mechanism by which the states can issue a vote of no confidence in their delegation to Congress or even bring down the entire Congress for a special election.

Hey Ed, I know you may find this difficult to fathom, but some of us here have big problems with both industrial capitalism and the New Deal. Can you even get your head around that?

Perseus is always a good and well-informed person to have around for these discussions. I have a feeling we've disagreed about something at some time, but it's always useful to have his thoughts on these types of historical questions.

Ed Darrell seems to have decided on "equal opportunity nastiness" for all members of this conversation on all sides.

Paul,

Just one quick note regarding Social Security -- the "trust fund" you speak of is really just government bonds, or IOUs from the government to the government:

http://www.thefreemanonline.org/featured/the-myth-of-the-social-security-trust-fund/

By the way, this article has a reference to a Supremem Court case that decided the constitutionality of Social Security, so it might warrant further study.

I promise you we can delete comments faster than you can write them, and banning a commenter is no overly complicated an operation either. Consider this a warning.

Thank you, Paul.

Mr. Darrell, you have just one more chance so far as this thread is concerned. Please do argue the merits of your case. We're all ears. But lose the attitude - pronto. Thank you.

I think it's more likely that a convention would show that the United States is now so fractured that we can't agree on a common vision than produce a working constitution. Even if we got a working constitution, it'd only be a matter of time before we faced the same problems.

Mike, I think this scenario is also a strong possibility. Which is another reason why I like it. It would force this country to face up to some unpleasant realities. A CC might have to get even more creative than simply amending a document.

If the U.S. "goes out" at that point, it goes out with a bang. Stay the present course, and we go out with a whimper.

Perseus and Jeff S. -- I am certainly not defending the finances of the Social Security Admin. I'm only saying that the "going bankrupt" talk is overblown. Medicare (and now Obamacare) are far bigger problems, fiscally, than Social Security, in my judgment. But Jeff, so what if the fund's assets are all US-backed debt? I notice that markets right now appear to be in another moment of fear and uncertainty; Europe is cracking; US-backed debt is in strong demand. The trust fund bonds would be legitimate assets in any market. In the last week billions have been restored to the trust fund's capital by the race to dollar assets.

Also, thanks for the linked article, but most of the the folks quoted were assuming a monetary system no longer in evidence, so their objections suffer from a want of applicability to current-day reality.

On Jeff C.'s idea of a Convention, which I admit merits some careful examination, I have no firm view yet. Would there not be the danger that, once called, the Convention would encourage the several States to go their different ways? Posit that deliberations on a Constitution stalled: might not Texas figure she's been a republic once, why not again; and considering the old Constitution dissolved by the failure to bring out a new one, submit to her people the proposal that they follow their own Lone Star?

Hell, Texas is like the 12th biggest economy in the world, and whole hell of a lot healthier one than the US as a whole.

If we look at The Federalist, however, few images are more regularly brought before the reader's mind than the image of multitude of petty republics in constant strife. Truly prudence does "dictate that Governments long established should not be changed for light and transient causes."

That said, I think the urgency of our situation is fairly severe, so I would not rule out the brilliance of a Constitutional Convention as a possible way out of ruins.

I still don't think that you have adequately addressed the objections to your view of judicial interpretation.

Perseus -- not having submitted a view on judicial interpretation, at least not having done so in this or the previous thread, I find this a puzzling conclusion to your comment.

What I have submitted in a demurral on the question of originalism, not so much on the question of its desirability as a working doctrine, but on the question of its content. What I do object to is a legal theory that surgically wrenches the Constitution out of its context within a political tradition. I have argued elsewhere why, for instance, I think it proper to keep in mind, off at the end, the symbol of the Mayflower Compact, the assembly of solemn deliberation, where freemen "covenant and combine ourselves together into a civil Body Politick." I think it proper to keep in mind that echoes of the Compact appear in the Declaration of Independence and in numerous state Convention Declarations in the years after it. I think it proper to trace the meaning of such phrases as "establish Justice," and "insure Domestic tranquility" and "promote General welfare," within the context of the American political tradition, keeping ever in mind that those phrases do emphatically date to the most original Constitution of the United States of America.

I think it's more likely that a convention would show that the United States is now so fractured that we can't agree on a common vision than produce a working constitution. Even if we got a working constitution, it'd only be a matter of time before we faced the same problems.

Yes, yes, yes. A constitutional convention, while an interesting idea will NEVER happen until or unless a subpopulation becomes large enough to have a unassailable majority in any deliberative process. Sadly, that will happen within 100 years if the nonsense of diversity is allowed to continue. Diversity is not an integrative social stance, it is a divisive one. Ethnic pride is fine as long as society is committed to a common cause, but let a group feel "special" to the point where it no longer sees the need to seek common purpose and the game is over. This will happen with the Latino population by virtue of simple demographics - they are tha only population reproducing at super-replacement rates. Mexico will not have to worry about illegal immigration if they are patient. They will, eventually, populate the US legally to the point where they can dictate policy on immigration.

Before that point is reached, however, the country is so divided that no clear interpretations of either laws or goals being possible, a sort of schizophrenia will occur with increasing anxiety and cognitive dissonance occurring. Modernism was a naissent movement when the original Constitution was written. Humean dispair, a foreshadowing of modernism, has made a universal outlook among the elite almost impossible, now, and without that, no CC would ever happen. It would be both too embarrassing and too psinful as the stark realization set in: we no longer know each other, despite our lusting after means of social communication.

When the population becomes homogeneous enough in purpose that they know each other's lives, again, which will happen if a subpopulation becomes dominant, then a CC will not only happen, but it will be a necessity, because the Constitution of Jefferson, Madison, etc. al., will no longer reflect the experiences of living they have come to know.

There are subpopulations that, even now, have enough common purpose to make a reasonable modification of the Constitution for modern exigencies, This is why I have always been in favor of turning out the whole of Congress and replacing the superrich spoiled brats with - housewives :) At least most of them know how to balance a budget! Of course, we will have to do this quickly, because the current Congress, knowing how sensible an idea this is, will have to everything they can to destroy marriage so there will be no housewives left.

Or, something like that :)

The Chicken

Paul, I find Lydia's position on the originalist interpretation of the Constitution to be virtually unassailable. There really isn't anything that can be said against it, except to ditch the idea that the Constitution has an objective meaning apart from the will and desire of the contemporary interpreter.

But what you describe is not unappealing to me. It is essentially rule by an elite - an elite who developed a consensus, apparently very long ago, that the Constitution as written was not adequate to govern the United States, and that practical governing must take priority. It's possible that this approach was entirely necessary, and arguably saved the Republic. Every system defaults to some kind of rule by elite anyway. The problem is that the elites of our day are driving us over a cliff.

But the real poison in the soup, the thing that offends, is the officious lie - the fiction that has to be maintained to hold everything together. Our legal system doesn't know what to do without a Constitution. In order to maintain its symbolic authority, then, it seems to me that all kinds of lies must be told and maintained concerning it, which corrupts the entire system and everyone involved to some extent.

And isn't this to be expected? Constitutional government has not been a spectacular success in the world. History is littered with the corpses of discarded constitutions. If the United States' Constitution has endured, it is due to the undeniable genius of the Anglo-American mind for maintaining order through compromise, and also, sorry to say, for dodging certain realities. This mentality is not without some value - indeed, the world could use more of it - but sometimes it has the effect of merely postponing an inevitable reckoning.

I am not finally decided on this question, Paul. I want to give your much more learned understanding due consideration. I plan to read one or two of those books you recommend. I'd like to think that our Constitution can occupy a stable middle ground, perhaps beyond originalism but short of total nihilism, a position that is not continually eroding and that honors enduring limits, a position of integrity that requires no "officious lies" to uphold. Presently, though, the only way I see that happening is by "making an honest woman" of her by way of a convention.

Jeff, I think you may be right that some of the early Presidents found the restrictions on federal power--the restrictions on the basis of which the entire Constitution and the new union had been expressly "sold" to the states--to be chafing and hence loosened them--frankly, in a rather unprincipled fashion. What I have always failed to understand about that is why anyone would think we could make from that an argument (which I know that you, Jeff, are not making) that an entirely different set of sweeping government powers should therefore also be invested in the federal government. "Heck, we got the central bank over originalist objections. We might as well have the New Deal." It sounds rather like being hung for a sheep as for a lamb, or continuing to sin that grace may abound, or something like that. After all, it would be fairly simple simply to _stop_ at a certain point, to say, "Yes, that may have been unconstitutional, strictly speaking, but that doesn't mean that we have to endorse other and more unconstitutional things." As Perseus says, the founders would be appalled at the current extent of federal power. That seems absolutely obvious. Indeed, Madison's speech above is almost uncanny on that point.

Therefore, it simply doesn't follow from, "There were early expansions of federal power which were argued, plausibly, to be unconstitutional on the basis of the 10th amendment and the enumeration of powers concept" that "We might as well not bother bringing up any of those concepts regarding the _still greater_ expansion of government powers at the New Deal"

As for contemporary arguments (contemporary, that is, to the New Deal) on the constitutionality of the programs, I have not had the time and do not now to read the Supreme Court rulings or to find the ruling(s) pertaining specifically to Social Security, price controls, etc., the dissents as well as the majority opinions, but yes, certainly there was controversy, and on the very grounds that these were unauthorized expansions of the powers of the federal government. This is well known. That was why Roosevelt wanted to pack the court. It is hardly controversial to say that the New Deal represented a great expansion of the very concept of allowable federal government powers. Any ha'penny-tuppenny history of the subject will tell you that! It's not as though everyone just passed this all through as part of some "wide grant of powers" that had always been given to Congress.

As Jeff C. said above, it's difficult to see what does _not_ fall within the scope of federal power if the programs of the New Deal do, and that is to make a mockery of the very notions, the very wise notions, in my opinion, of federalism and limited central government so earnestly urged upon the hesitant as a necessary condition of the ratification of our Constitution.

As to what to do now, it seems to me that the most important thing is simply to admit this fact and therefore to be willing to use the unconstitutionality argument, without blushing, against further incursions. If somebody sneers, "What about the Louisiana Purchase?" tell him that more on-going federal power hardly makes matters better because Jefferson made an unprincipled exception two hundred years ago, and that conservatives are hardly bound to defend every act of every one of the founders during his lifetime. Indeed, it seems to me that such a sneer is a fairly shallow objection. It should be obvious that we should have _stopped_ at some point expanding federal powers in order not to make a joke of the Constitution rather than simply throwing out the notion of limits altogether.

As for what things we should ratify ex post facto, well, I'd do it for the Louisiana Purchase. :-) :-) Other things, I'll have to take on a case-by-case basis, and the wisdom or un-wisdom of continuing a federal program as on-going policy will of course have to be a consideration. :)

All,

Now you've turned me into a wannabe constitutional scholar. I started Googling and discovered that the key case is Helvering v. Davis. This guy provides a nice summary of the issues and makes a compelling argument that, sure enough, the constitutionality of Social Security is flimsy and rests on the infamous passage in Article I, Section 8 giving Congress the power to "To lay and collect Taxes...to pay the Debts and provide for the common Defence and general Welfare of the United States". He also seems to think that the question of whether or not Social Security can be described as insurance is germane to the argument, but I don't understand how that adds anything to the constitutionality of Congress' powers under Article I, Section 8 -- either those powers are enumerated and limited or they aren't. What is sad about that Supreme Court decision is that the dissenting justices didn't write a dissent! So it would be useful to go back and read Davis' briefs which are probably the best original legal arguments around for why we should all consider Social Security unconstitutional. Or maybe it would be worthwhile to review the Circuit Court of Appeals decision that reversed the U.S. District Court for the District of Massachusetts, which originally upheld the Social Security tax?

I'm sure an afternoon of Googling the subject will yield some interesting results...

In related news about the death of the Constitution, the Indiana Supreme Court has just nullified the fourth amendment in the entire state of Indiana by ruling that there exists no right to resist a police officer trying to enter your home, regardless of the circumstances...

In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.

Here, the trial court‘s failure to give the proffered jury instruction was not error. Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment.

And do what thou wilt shall be the whole of the law...

As for what things we should ratify ex post facto, well, I'd do it for the Louisiana Purchase. :-) :-) Other things, I'll have to take on a case-by-case basis, and the wisdom or un-wisdom of continuing a federal program as on-going policy will of course have to be a consideration. :)

I agree entirely with the ideas as you expressed them in the 11:36 pm comment, but I'm not sure about the part on the Louisiana Purchase. I don't know much about it. What are/were the Constitutional objections to it?

Mark, as I understand it, the problem is that buying huge slabs of land for later settlement from another country is no part of the powers granted either to the executive or to the legislative branch of the federal government. I haven't double-checked this recently, but it's usually brought up to level a charge of hypocrisy against Jefferson for his earlier passionate commitment to the tenth amendment, or alternatively to imply that he had somehow grown up and mellowed and realized that we couldn't take all that enumeration stuff seriously after all, because it was just so essential to the governance of America at the time that we pay Napoleon moogoo bucks for the Louisiana Purchase. :-)

Wow, I really hate to say it but I can see where Jeff's coming from, although I wouldn't go so far as to say "The Constitution is dead." But I look at the people who manage to win office & make political careers, I see less and less of the "I'm here to change course this election cycle in the manner my constituents wanted when they elected me" and I'm seeing more and more of the "NEVERMIND what course I'm going to embark on, I'm a super-duper-awesome dude, it's my world and the rest of you are just living in it." That's not a slam against Barack Obama, either...not just Him. There are lots of others in this mold. They seem to be saying "I will win all the arguments, the only question yet to be settled is what those arguments are." Trump, while he was lasting, was putting together a campaign like this: Who cares what you say, I'm capital-M Me.

Darth Vader said it best: I am altering the deal. Pray I do not alter it further.

The effect, whether or not it's fatal to what we call the Constitution, certainly is life-shortening, deleterious to that document's health. The rest of us end up just holding elections every two years on which constituency is supposed to enjoy any & all benefits, spared from any & all pain. By the way: Anybody who really wants a good idea about how all this stuff shakes out, I'd invite to trot over to Ed Darrell's site. Everything's settled in short order if it's an exchange among the like-minded, but if there's any dissenting opinion there whatsoever, everything quickly disintegrates into something best summarized as "we're all awesome, your side sucks, now what was it we were talking about again?"

Lydia: Ok, thanks for bringing me up to speed. I only remember dimly that it was controversial. Just speaking generally rather than to anything you've said, I don't quite get the 10th amendment applicability to that. Isn't the 10th about the fed/state dividing of power, as opposed to things only the feds could do? I would think the issue has to do with the approach to the Constitution generally. On the latter, and admitting I don't know specifically about possible hypocrisy by Jefferson, count me as skeptical on the idea that the Constitution is the type of document that could or should rule out acquiring adjacent land on the open market. It seems to me something so basic that we're at the limits of specifying principles in words without devolving into lists of things that could never stand the test of time.

I know some will say "Well if it is so basic then why wasn't it in the Constitution?," or "Well then the Constitution should have been amended before purchase" and talk about slippery slopes, but though I'm an originalist I think the Constitution can't sustain the kind of weight implied by ruling out buying adjacent property by silence. It seems to me that kind of "respect" seems more than a reasonable literalism or non-religious understanding of the Constitution can bear. It isn't as if there is no danger on the respect end of the scale. We Conservatives may deplore what we think is a lack of respect for it, but before getting too carried away by counter-factual scenarios where respect solves some very thorny problems we should entertain alternate scenarios for dealing with founding documents other than the happy ones where things work out as we'd wish. We've seen enough science fiction novels where a culture attached improper meanings to such things and how that goes wrong. I think it as plausible it goes wrong as that it ends up in the happy place where much of New Deal policies never happened because of Constitutional understandings and ObamaCare got rejected Congress on the same basis. I just don't think any attitude to the Constitution rules out people determined to "not let a serious crisis go to waste." The only option is to hope that at some point people will have to be counted on to see that something is not truly in their best interests. Though it is easy to be cynical, there is at least as much hope in that as that people would revere a Constitution in a way sufficient to rule out the Louisiana Purchase. I'm also a bit skeptical on a new constitutional convention for the same reason that a reformulation would get it better.

Is it so wrong to think these things that are water under the bridge must be rolled back on their merits? It is encouraging that we see decades old corrupt labor union policies now being questioned and even overturned. It is encouraging that majorities seem to want ObamaCare repealed, and many are questioning WWII-era understandings of health care issues. I know there should be a healthy cynicism about natural reason, but am I the only one that marvels at how the morality of the slavery question was settled by natural reason, when theology was merely corrupted to support it and all major denominations split over it? We can be chastened by too little faith in natural reason just as much as too little. Surely how the clergy of a certain political affiliation interpreted the Bible in the 1830's to 1860's would chasten us to not put too much confidence in humans ability to see clearly even when formal respect for texts is very high. Of course, less extreme examples abound too, but you get the idea. Eventually these issues have to be hashed out in the minds of the persons involved, and that means a political battle of ideas that leans on common sense far more than hermeneutics.

Mark, well, my position probably _would_ be called something like hyper-literalism by those who disagree with it, but I'm afraid there is just a mountain of evidence that this notion of enumeration of powers was expressly held by the founders and was used as an explicit and repeated selling point of the Constitution to the colonies: "Hey, don't listen to those anti-federalists who are telling you that the new federal government will get too big, because its powers will be _spelled out_ and it will have only those powers expressly granted to it." And it seems to me that in the early years they really did argue against things on precisely those grounds; several people have brought up examples above. This isn't a matter of an "argument from silence." It's a matter of an express argument, made at the time, that the federal government would not have powers that weren't enumerated. And it's a pretty important concept--the difference between assuming that the federal government _has_ a power unless it is _forbidden to it_ and assuming that the federal government does _not_ have a power unless it is _granted to it_. The 10th amendment definitely comes down on the latter side, but the 10th amendment is by no means our only piece of evidence that this is how the founders understood the form of government they founded.

Of course that doesn't rule out people's doing bad things, but if the bad things are done at the state level, the damage is, in a sense, contained.

And of course even if we take it that the Louisiana Purchase was therefore a "power grab" by Jefferson (in contrast to his earlier passionate limited-government stance), it's sort of the ultimate water-under-the-bridge. Which doesn't bother me. After all, it's a self-limiting thing. A purchase. It's not an on-going government _program_.

Lydia, I agree with you on everything you say, and I know the arguments were made at the time and should have been. I wouldn't call it a hyper-literalism generally, or if it is it is just the sort Americans used to be. It would only be at the extremes where we might disagree, and those are few I suppose. Even though people thought about it at the time, or pretended to, I choke on the idea that the Constitution can reasonably really rule out the Louisiana purchase, unless it would be on fiscal grounds that were enumerated.

The principle contained in the quote about "the Constitution isn't a suicide pact" comes into play at some point. I just can't see how any nation who self-limited itself to this extreme would do anything other than atrophy into stasis as we see in other nations. The West was needed to escape New England liberals. There wouldn't even be a Conservatism of our type to complain about these matters without Westward expansion such as the Louisiana Purchase. Not sure where we go now though.

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