“It’s Time For Progressives To Reclaim The Constitution”: Challenging Conservative Claims About What The Constitution Really Demands
You cannot talk for very long to a conservative these days without hearing the words “constitutional” and “constitutionalist.”
Formulations such as “I am a constitutional conservative” or “I am a constitutionalist” are tea party habits, but they are not confined to its ranks. Many kinds of conservatives contend that everything they believe is thoroughly consistent with the views and intentions of our 18th-century Founders.
Wielding pocket-sized copies of the Constitution, they like to cite it to settle political disputes. Writing in the YG Network’s recently issued conservative manifesto, “Room to Grow,” Ramesh Ponnuru argues that there is a new and salutary “popular interest in constitutionalism.”
“Instead of treating the Constitution as the property of lawyers and judges,” he notes, “it proposes that legislators, and even citizen-activists, have an independent duty to evaluate the constitutionality of legislation.”
One plausible progressive response is to see Ponnuru’s exercise as doomed from the start. The framers could not possibly have foreseen what the world would look like in 2014. In any event, they got some important things wrong, most glaringly their document’s acceptance of slavery.
Moreover, because the Constitution was written primarily as a foundation for government, it can answer only so many questions. David Strauss of the University of Chicago Law School authored a book called “The Living Constitution” to make plain that there is a lot more to this concept than its detractors suggest. He notes that “a great part of the framers’ genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document’s ability to serve as common ground.”
The problem with “originalists,” Strauss says, is that they “take general provisions and make them specific,” even when they’re not. One might add that the originalists’ versions of specificity often seem to overlap with their political preferences.
Nonetheless, progressives should take Ponnuru’s proposal seriously and think constitutionally themselves. In doing so, they would challenge conservative claims about what the Constitution really demands.
In the May issue of the Boston University Law Review, Joseph R. Fishkin and William E. Forbath of the University of Texas School of Law show that at key turning points in our history (the Jacksonian era, the Populist and Progressive moments and the New Deal), opponents of rising inequality made strong arguments “that we cannot keep our constitutional democracy — our republican form of government — without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone.”
Their article is called “The Anti-Oligarchy Constitution,” though Forbath told me that he and Fishkin may give the book they’re writing on the topic the more upbeat title “The Constitution of Opportunity.” Their view is that by empowering the wealthy in our political system, Supreme Court decisions such as Citizens United directly contradict the Constitution’s central commitment to shared self-rule.
“Extreme concentrations of economic and political power undermine equal opportunity and equal citizenship,” they write. “In this way, oligarchy is incompatible with, and a threat to, the American constitutional scheme.”
While their overarching vision contrasts sharply with Ponnuru’s, they make a similar critique of what they call an excessively “court-centered” approach to constitutionalism. “Constitutional politics during the 19th and early 20th centuries” was very different and the subject of democratic deliberation. In earlier eras, they say, the Constitution was seen as not simply permitting but actually requiring “affirmative legislation . . . to ensure a wide distribution of opportunity” and to address “the problem of oligarchy in a modern capitalist society.”
The authors remind us of Franklin Roosevelt’s warning that “the inevitable consequence” of placing “economic and financial control in the hands of the few” would be “the destruction of the base of our form of government.” And writing during the Gilded Age, a time like ours in many ways, the journalist James F. Hudson argued that “imbedded” in the Constitution is “the principle” mandating “the widest distribution among the people, not only of political power, but of the advantages of wealth, education and social influence.”
The idea of a Constitution of Opportunity is both refreshing and relevant. For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it’s they who are most loyal to the Constitution’s core purpose. Broadly shared well-being is essential to the framers’ promise that “We the people” will be the stewards of our government.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 6, 2014
Until not long ago, we tended to think of Republicans as unified and focused, and Democrats as inherently fractious (see, for instance, the evergreen “Dems In Disarray” headline). These days the opposite is true—or at least it’s the case that Republicans have become just as divided as Democrats. But how much of that is about Washington infighting and intraparty struggles for power, and how much is actually substantive and matters to voters? This post from The Upshot at the New York Times has some provocative hints. Using polling data from February that tested opinions on a range of issues, they found that Republicans are much less unified than Democrats when it comes to their opinions on policy:
On these seven issues, 47 percent of self-identified Democrats agree with the party’s stance on at least six of them. And 66 percent agree with at least five. Republicans were less cohesive, with just 25 percent agreeing on six or more issues, and 48 percent agreeing on five.
Piling on more issues showed similar results. To check our results, we also created an 11-issue index that added four topics: federal funding for universal pre-kindergarten, the distribution of wealth in the United States, the minimum wage and abortion. A majority of Democrats—61 percent—agreed with at least eight Democratic positions, compared with 42 percent of Republicans who agreed with eight or more Republican positions.
Even though you have a relatively large number of issues being tested, it could be a function of the particular ones we’re talking about. For instance, minimum wage increases are hugely popular and always have been, so it isn’t surprising that plenty of Republicans break with their party on that, and it doesn’t necessarily signify a fundamental and meaningful fracture. So I went over to the original poll, which has a nice interactive graphic you can use to see crosstabs on each question, and there are some interesting signs of dissent within the GOP. For instance:
20 percent of Republicans say their party is nominating candidates who are too conservative, compared to only 9 percent of Democrats who say their party’s candidates are too liberal. At the same time, 32 percent of Republicans say their party’s candidates aren’t conservative enough, compared to 18 percent of Democrats who say their party’s candidates aren’t liberal enough.
29 percent of Republicans say they have an unfavorable view of the Republican party, compared to 14 percent of Democrats who have an unfavorable view of the Democratic party.
On many issues, there are between a quarter and two-fifths of Republicans who disagree with the party’s position. 34 percent think marijuana should be legal, 33 percent think gun laws should be more strict, 28 percent support federally funded universal pre-K, 24 percent think global warming is caused mostly by human activity, 36 percent support a path to citizenship for undocumented immigrants, 40 percent support same-sex marriage, and 37 percent think the distribution of wealth should be more fair.
The Tea Party gets all the press, and not without reason, but there is obviously a significant bloc of Republicans who are displeased with their party’s right turn in the last few years. We’re talking about more than just a few disgruntled Rockefeller Republicans bemoaning it after 18 holes at the Greenwich country club. We’re talking about as much as a third of the party’s voters.
Of course, issues aren’t everything, and these days, conservatism is defined in many ways. It’s a set of policy positions, but it can also be measured by the depth of your loathing for Democrats in general and Barack Obama in particular, or by the kinds of political tactics you embrace. But this is a good reminder that there are significant numbers of Republicans out there who, if you just look at what they think about issues, actually look pretty liberal.
By: Paul Waldman, Contributing Editor, The American Prospect, May 15, 2014
This week, Ralph Nader returned to the political stage with a new book, Unstoppable, whose triumphant subtitle is The Emerging Left-Right Alliance to Dismantle the Corporate State. To kick off his publicity tour, he has argued that liberals should “definitely” impeach President Barack Obama, abandon the “international militarist” Hillary Clinton, and instead embrace Sen. Rand Paul (R-Ky.) as a possible leader of his dream coalition.
To what end? In the book, Nader writes that by marrying the Left with the libertarian Right, we can cut off government support for corporations and have “honest government,” “fair taxation,” and “more opportunity.” Nader sees relatively low-hanging fruit in opposing “sovereignty-shredding global trade agreements, Wall Street bailouts, the overweening expansion of Federal Reserve power, and the serious intrusions of the USA PATRIOT Act against freedom and privacy.” He also articulates loftier, if not fully fleshed out, aspirations to “push for environmentalism,” “reform health care,” and “control more of the commons that we already own.”
Some liberal commentators, like Esquire‘s Charles Pierce and the American Prospect‘s Scott Lemieux, are dismissing Nader’s vision as fantastical, since the Right will never join his progressive crusade. But Nader’s vision should not be dismissed so quickly. He leads his book with concrete examples from the 1980s of when he put Left-Right coalitions together to stop an over-budget nuclear reactor project and to pass legislation to protect whistleblowers who uncover wasteful government fraud.
More recently, Sen. Bernie Sanders (I-Vt.), Rep. Alan Grayson (D-Fla.), and then-Rep. Ron Paul (R-Texas) joined forces to pass legislation auditing the Federal Reserve. Nader is correct that there are opportunities to build ideologically diverse coalitions and that coalition building is the key to getting most anything you want out of politics.
However, coalition building requires compromise and, most critically, prioritizing one set of issues over another. The trade-offs inherent in Nader’s path into Rand Paul’s arms should make liberals run screaming.
The Nader strategy of a permanent coalition with the libertarian Right greatly limits what liberals can accomplish. Where there is a joint desire to restrain government (end the drug war) and limit spending (stop corporate welfare), a Nader-Paul alliance can form. But you can forget about anything that involves new government regulation, higher taxes, and more spending. That would preclude big-ticket liberal priorities like capping carbon emissions, expanding anti-poverty programs, guaranteeing universal preschool, and investing in infrastructure.
Nader effectively deprioritizes those goals, because his primary agenda is to “Dismantle the Corporate State.” But the hard truth is that if liberals want to make progress on their core agenda, the coalition to nurture is not with the Paulistas. It’s with the CEOs.
The little-talked-about secret of most major liberal accomplishments over the past 80 years is that they received some degree of corporate support, at least enough to disempower conservative opposition. This is true for much of FDR’s New Deal, LBJ’s anti-poverty legislation, and environmental regulation, as well as Obama’s stimulus, repeal of the Bush tax cuts, Wall Street regulation, and health-care reform.
As I observed in the New York Times following the Supreme Court’s upholding of ObamaCare, “When corporations are divided or mollified, reformers can breathe. The president can be heard. Business owners can be convinced that they will remain profitable. The dim prospect of perpetual gridlock can be trumped by the allure of regulatory certainty.”
Nader wants to scrap this long, if quiet, history of liberal success that has built the pillars of modern activist government in favor of prioritizing a civil libertarian agenda. His strategy makes sense if you think smashing the NSA is more important than saving the climate or feeding the hungry. I suspect most liberals would not make that trade.
There’s nothing wrong with forging temporary, limited partnerships with whoever is willing to play ball at that moment. You can work with libertarians against corporations on global trade today, and cooperate with corporations against libertarians on funding infrastructure tomorrow.
But Nader’s vision goes beyond ad-hoc coalitions. He wants to permanently side with government-hating libertarians over government-accepting corporations. That may have superficial appeal to liberals currently agitated over income inequality, but it’s not the strategy that helped liberals in the past century build the social safety net, reduce poverty, and avoid another a Great Depression.
By: Bill Scher, The Week, May 2, 2014
“Three Expensive Milliseconds”: Society Is Devoting An Ever-Growing Share Of Its Resources To Financial Wheeling And Dealing
Four years ago Chris Christie, the governor of New Jersey, abruptly canceled America’s biggest and arguably most important infrastructure project, a desperately needed new rail tunnel under the Hudson River. Count me among those who blame his presidential ambitions, and believe that he was trying to curry favor with the government- and public-transit-hating Republican base.
Even as one tunnel was being canceled, however, another was nearing completion, as Spread Networks finished boring its way through the Allegheny Mountains of Pennsylvania. Spread’s tunnel was not, however, intended to carry passengers, or even freight; it was for a fiber-optic cable that would shave three milliseconds — three-thousandths of a second — off communication time between the futures markets of Chicago and the stock markets of New York. And the fact that this tunnel was built while the rail tunnel wasn’t tells you a lot about what’s wrong with America today.
Who cares about three milliseconds? The answer is, high-frequency traders, who make money by buying or selling stock a tiny fraction of a second faster than other players. Not surprisingly, Michael Lewis starts his best-selling new book “Flash Boys,” a polemic against high-frequency trading, with the story of the Spread Networks tunnel. But the real moral of the tunnel tale is independent of Mr. Lewis’s polemic.
Think about it. You may or may not buy Mr. Lewis’s depiction of the high-frequency types as villains and those trying to thwart them as heroes. (If you ask me, there are no good guys in this story.) But either way, spending hundreds of millions of dollars to save three milliseconds looks like a huge waste. And that’s part of a much broader picture, in which society is devoting an ever-growing share of its resources to financial wheeling and dealing, while getting little or nothing in return.
How much waste are we talking about? A paper by Thomas Philippon of New York University puts it at several hundred billion dollars a year.
Mr. Philippon starts with the familiar observation that finance has grown much faster than the economy as a whole. Specifically, the share of G.D.P. accruing to bankers, traders, and so on has nearly doubled since 1980, when we started dismantling the system of financial regulation created as a response to the Great Depression.
What are we getting in return for all that money? Not much, as far as anyone can tell. Mr. Philippon shows that the financial industry has grown much faster than either the flow of savings it channels or the assets it manages. Defenders of modern finance like to argue that it does the economy a great service by allocating capital to its most productive uses — but that’s a hard argument to sustain after a decade in which Wall Street’s crowning achievement involved directing hundreds of billions of dollars into subprime mortgages.
Wall Street’s friends also used to claim that the proliferation of complex financial instruments was reducing risk and increasing the system’s stability, so that financial crises were a thing of the past. No, really.
But if our supersized financial sector isn’t making us either safer or more productive, what is it doing? One answer is that it’s playing small investors for suckers, causing them to waste huge sums in a vain effort to beat the market. Don’t take my word for it — that’s what the president of the American Finance Association declared in 2008. Another answer is that a lot of money is going to speculative activities that are privately profitable but socially unproductive.
You may object that this can’t be right, that the invisible hand of the market ensures that private returns and social returns coincide. Economists have, however, known for a long time that when it comes to speculation, that proposition just isn’t true. Back in 1815 Baron Rothschild made a killing because he knew the outcome of the Battle of Waterloo a few hours before everyone else; it’s hard to see how that knowledge made Britain as a whole richer. It’s even harder to see how the three-millisecond advantage conveyed by the Spread Networks tunnel makes modern America richer; yet that advantage was clearly worth it to the speculators.
In short, we’re giving huge sums to the financial industry while receiving little or nothing — maybe less than nothing — in return. Mr. Philippon puts the waste at 2 percent of G.D.P. Yet even that figure, I’d argue, understates the true cost of our bloated financial industry. For there is a clear correlation between the rise of modern finance and America’s return to Gilded Age levels of inequality.
So never mind the debate about exactly how much damage high-frequency trading does. It’s the whole financial industry, not just that piece, that’s undermining our economy and our society.
By: Paul Krugman, Op-Ed Columnist, The New York Times, April 13, 2014
In 1971, before becoming a Supreme Court justice, Lewis F. Powell Jr. penned a memo to his friend Eugene Sydnor of the U.S. Chamber of Commerce advocating a comprehensive strategy in favor of corporate interests. Powell wrote, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”
In last week’s ruling in McCutcheon v. Federal Election Commission , the Supreme Court was not a mere instrument so much as a blowtorch, searing a hole in the fabric of our fragile democracy.
This predictable decision from the 1 Percent Court to repeal federal limits on overall individual campaign contributions overturns nearly 40 years of campaign finance law.
It also completes a trifecta of rulings that started in 1976 with Buckley v. Valeo, and the Midas touch of judicial malpractice, turning money into speech. As Justice Stephen Breyer wrote in an impassioned dissent to McCutcheon, taken together with the 2010 ruling in Citizens United, “today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
This, foreshadowed in Powell’s decades-old memo, has always been the right’s plan — to shift the system in favor of the wealthy and powerful. Put it this way: If the limit hadn’t existed in 2012, the 1,219 biggest donors could have given more money than over 4 million small donors to the Obama and Romney campaigns — combined.
But McCutcheon was not the only body blow to our democracy, in what was possibly the worst week in the history of campaign finance reform.
New York Gov. Andrew Cuomo (D) let his proposal for publicly financed statewide elections die after years of promises to restore the public trust. In a state that’s often a laboratory of democracy, the governor has agreed to what is little more than a clinical trial — a single comptroller’s race this year — that some experts claim is “designed to fail.”
The American experiment seems to be run by a smaller and smaller control group as billionaires — like the Koch brothers and Sheldon Adelson — get expanding seats at the shrinking political table.
NASCAR drivers wear the corporate logos of their sponsors on their suits. The justices who sided with plutocracy ought to wear sponsorship logos on their robes, too.
Conversations about court rulings and policy proposals can obscure what’s really at stake: the well-being of the American people. The Court and Cuomo gave the 1 percent even more opportunities to, effectively, buy the kind of access to elected officials that most voters and small donors could never dream of. The weakening of campaign finance laws tracks with the widening income gap, as the wealthiest have secured policies, from lower taxes to deregulation — that enrich themselves at the expense of everybody else.
This, to paraphrase Massachusetts Sen. Elizabeth Warren (D), is why the system is rigged. Metastasizing money drowns out the voices of actual Americans, and suffocates policies such as raising the minimum wage and equal pay that would benefit workers. It also skews the playing field, not just between the haves and have-nots, but also between male and female candidates.
We live in a world where elected officials care less about checks and balances and more about their checkbooks and balance sheets. Where fundraising is more important than legislating. Where public policy is auctioned off to the highest bidder.
That’s why getting money out of politics is not a partisan issue. According to Gallup, nearly eight out of 10 Americans think campaigns should be limited in what they can raise and spend, while a 2012 CBS poll shows that about two-thirds of Americans believe in limiting individual campaign contributions.
Hopefully, popular outrage will boost the pressure for reform; there has already been a sharp increase in grassroots action. In the hours and days after the ruling, coalitions such as Public Citizen have mobilized thousands of people in 140 demonstrations across 38 states to protest the McCutcheon ruling. Nearly 500 local governments and 16 states and the District have called for a constitutional amendment to wrest our elections back from the elite. Move to Amend, which supports a constitutional amendment to reverse Citizens United and McCutcheon, and end the fiction that corporations are people and money equals speech, already has over 300,000 members.
A resolution from Sen. Tom Udall (D-N.M.) — with a House companion introduced by Rep. Jim McGovern (D-Mass.) — calling for a constitutional amendment to allow Congress to fully regulate campaign contributions, and to encourage states to regulate and limit campaign spending, already had 29 co-sponsors and picked up 3 more on the day the Roberts Court announced its decision. Citizens in New York, who are furious at Cuomo for failing to enact reform, are renewing the drive to hold him accountable for his actions. And even while pushing for a constitutional amendment — an uphill battle —supporters of clean elections in Congress and outside are fighting for increased disclosure and public financing of elections.
The all-out assault against campaign finance reform, on the heels of the Court’s gutting of the Voting Rights Act in Shelby County v. Holder , is just one more example of our democratic system in crisis. “Under the leadership of Chief Justice John Roberts,” my Nation colleague Ari Berman recently wrote, “the Supreme Court has made it far easier to buy an election and far harder to vote in one.” But the fear of democracy’s premature death doesn’t look like it’s silencing people; instead, it is inspiring a renewed commitment to fight for its survival.
By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, April 8, 2014