I’ll generously
overlook the capitalization errors in the title and, unlike Ruth Marcus, get to
substance: the Constitution.
Recovering the Constitution from conservatives
By Ruth Marcus, Published: September 15
Tea Party types and other conservatives talk about how
they’d like their country back.
Don’t worry, Ruth. We’re taking care of it one district at a time
I’d like my Constitution back.
Maybe when you pry it
from my cold, dead fingers.
The rise of these self-proclaimed constitutional
conservatives
Let the dripping
disdain wash over you. Soak it in. It means we’re winning.
is an ominous development
Apparently, conservatives
are never just wrong; we’re always dangerous.
that has received too little notice — and too little
push-back. Until now.
That’s not a
sentence, and you’re not leading a movement.
Under the banner of “Constitutional Progressives,”
Liberals have finally
found the most concisely contradictory form of self-definition. Good for them.
a coalition of liberal groups has begun making an important,
two-part argument: first, that a progressive government agenda is consistent
with constitutional values;
That’s a tough slog. Notice
also that she claims it is consistent with “constitutional values” and not “the
Constitution.”
and second, that the constitutional conservative approach
represents a dangerous retrenchment of the government’s role.
Take out the “dangerous”
part, and that’s exactly the point. The government has used minor
misinterpretations of the Constitution (particularly the commerce clause) on
the part of the Supreme Court to justify unfathomable government bloat. The
danger here is that we’re cutting our defense budget to pay for social programs
and entitlements. Of course conservatives want to retrench.
This bid to “rebut the constitutional fairy tales being
peddled by the Tea Party,” as Douglas Kendall of the Constitutional Accountability
Center
This would be a whole
lot more impactful if you gave an example or two of conservative
misinterpretations of the Constitution…or any Constitutional justification
whatsoever for this mumbo jumbo.
could not be more timely, with the dizzying rise of Texas
Gov. Rick Perry (R).
Who has his own
problems with conservatives (as I so ably outlined here). The difference is that the governor of
Texas is rarely constrained by the United States Constitution, as the United
States Constitution is, as the name indicates, a document designed to guide and
legally bind the federal government.
The constitutional conservative critique, as articulated by
Perry, Rep. Michele Bachmann (R-Minn.) and others, goes far beyond the familiar
laments about activist judges.
You missed the point,
Ruth. The laments about activist judges are that they permit government to
overstep its constitutionally permitted role.
It is, at bottom, an argument against the 20th century —
specifically against the notion that the Constitution envisions and empowers a
muscular federal government
It doesn’t.
able to ensure that its citizens have clean air, healthy
food and safe workplaces.
Please find the
justification for any of those three enumerated in Article I, Section 8. (Hint:
you will not find them without some legal contortions.) For that matter, please
explain why ay one of these necessitates federal legislation instead of state
or local legislation.
To grasp the radical nature of the constitutional
conservative approach, consider the record of every Republican president since
the New Deal.
The best
Constitutional argument Marcus has presented thus far: it is, therefore it must
be permissible.
Richard Nixon ran on the pledge of appointing “strict
constructionist” judges, but he created the Environmental Protection Agency,
telling Congress that “our national government today is not structured to make
a coordinated attack on the pollutants which debase the air we breathe, the
water we drink and the land that grows our food.” Nixon didn’t doubt — as do
the modern constitutional conservatives — that environmental regulation was an
appropriate and constitutional role for the federal government.
I think we all know
that Nixon’s undoing was a failure to appreciate the limitations to his power.
The EPA shares that trait.
Likewise, George W. Bush inveighed against judges
“legislating from the bench.” Yet he presided over the largest expansion of
Medicare — the addition of a prescription drug benefit — in the history of the
program
Oddly, the actions of
the legislative process do not in any way undercut Bush’s opposition to the
imagination of new laws by the judiciary.
and oversaw a sweeping new role for the federal government
in assuring quality education by local schools. Bush didn’t question — as do
the constitutional conservatives — whether these were permissible activities
for the federal government.
I think we all know
that Bush’s undoing was that he never actually governed domestic affairs as a
conservative.
Also, nothing to
throw in Reagan’s face? I expected better research out of you, Ruth.
The constitutional conservative vision is dramatically
different. It sees a hobbled federal government limited to a few basic
activities, such as national defense and immigration.
Read: the items
specifically enumerated in Article I, Section 8.
The 10th Amendment, reserving to states the powers not
granted to the federal government, would be put on steroids.
How is it possible to
put the 10th Amendment on steroids? The interpretation of the 10th
Amendment is not particularly complicated, nor is the language obtuse or arcane:
if there is a power or right not specifically mentioned within the
Constitution, it does not belong to the federal government. The language is
written to be absolute, so the interpretation should be absolute. That the
Supreme Court has neglected and malnourished the 10th Amendment is
not evidence that it’s newfound prominence is unfounded or unjustified.
The commerce clause, giving the federal government the
authority to regulate commerce among the states, would be drastically
diminished.
New best
Constitutional argument set forth by Marcus: “the framers didn’t really mean the
‘interstate’ part of the interstate commerce clause.”
Certainly, there’s a legitimate debate about the proper role
of the federal government and the scope of federal vs. state power. But that is
a different argument than the one long thought settled during the New Deal:
that the Constitution grants the federal government power to regulate a broad
array of activities in the national interest.
If we are not
permitted to re-open issues thought to be settled, either by popular convention
or by Supreme Court decision, then we would have a lot of disenfranchised
blacks still drinking out of separate drinking fountains (foremost among a
litany of terrible Supreme Court decisions).
The danger posed by the constitutional conservative approach
is to attempt to lash together debates about what the federal government should
do and what the Constitution allows it to do.
No, it’s an attempt
to get government to stop doing things they’re not legally authorized to do. Like
giving a half a billion dollars to a failing solar panel manufacturer and then
subordinating the debt debenture to subsequent private investment. Or mandating
that private citizens purchase health insurance. Or regulating the derivatives market.
Or any one of ten thousand other things that the federal government does
without a mention of the constitutionality of it.
A white paper by the liberal Center for American Progress
spells out the potential consequences of the constitutional conservative
vision.
Let me guess: Mel Gibson?
Programs such as Social Security, Medicare and Medicaid
would be deemed to exceed the federal government’s enumerated powers.
If they’re that
invaluable to society, we can either amend the Constitution or shift the burden
of these programs to the states.
The federal government would cease to have any role in
education,
Great! Someone please
explain to me how the presence of the federal government enriches any child’s
education.
eliminating funding for public schools and college financial
aid,
eliminating federal funding for public schools and
college financial aid. There’s still state, local, and private funding
available.
and in combating poverty, ending food stamps and
unemployment insurance.
Again, these should
be state programs anyways.
Laws on everything from child labor to food safety would be
overturned.
And replaced by state
laws. Stop me if this sounds redundant.
None of this is likely to happen, of course, for the simple
reason that most Americans don’t want it to.
Please explain to me
when exactly popular opinion made something constitutionally permissible.
When Perry was pushed during a debate about the implications
of his views on the constitutionality of Social Security, for example, he waved
off the question as an interesting intellectual exercise.
And yet, none of this
addresses the question of whether Social Security actually is constitutionally
permissible.
But the emergence of the constitutional conservative
argument has real-world consequences — even without a constitutional
conservative in the White House. It shifts the legal debate significantly
rightward, energizing and empowering conservative judges and justices.
And Ruth Marcus wants
those miserable bastards beaten down and dejected.
And it changes the nature of the political debate as well by
narrowing the turf on which, at least in the view of some lawmakers, the
federal government is deemed authorized to operate.
That’s a bad thing?
“This is a way to weaponize the Constitution to prevent a
real debate about how the government can solve national problems,” Kendall told me.
In case Kendall wasn’t paying attention, that debate has been
settled; the federal government can’t
solve national problems.
Strong words,
Really?
but the constitutional conservative vision is too extreme to
continue to ignore it in the hope that it will fade on its own.
So, having made it
through this entire article, it appears that conservatives have laid out a
well-articulated and comprehensive interpretation of the Constitution that
envisions a limited federal government. We have cited the constitution, sought
to understand the intention and mindset of the men who wrote it, and allowed
that understanding to guide a reasoned interpretation of current events. By
contrast, “Constitutional Progressives” have succinctly rebuffed: “Nuh-uh!”
There was not a
single Constitution-based argument in this painfully elongated assertion. The
closest Marcus got was a reference to the commerce clause that painfully
omitted the phrase “and among the several States.”
This wasn’t a serious
attempt to present a liberal or progressive interpretation of the Constitution.
Instead, it was a political accusation that conservatives want to take away
Social Security under the guise of Constitutionalism. There aren’t any court
cases pending on the constitutionality of Social Security. Notice, however,
that she didn’t once mention Obamacare, and how the conservative interpretation
of the Constitution appears to be making serious headway in the courts.
This is just the next
step in the progressive movement’s attempt to find an answer to the Tea Party. Remember
the “Coffee Party?”
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