“James Madison For Dummies”: An Obstructionist, Compromised Reputation Among The GOP
The effort to defund Obamacare, culminating in Sen. Ted Cruz’s marathon speech on the Senate floor, has been symbolic in ways its sponsors did not intend.
This, in the end, was the strategy: For procedural reasons, senators needed to vote against a House spending bill defunding Obamacare — in order to force a government shutdown, in order to cut off federal spending unrelated to Obamacare, in order to trigger a wave of public revulsion against Obamacare, in order to force President Obama to trade away his signature legislative accomplishment. And any elected Republican, by the way, who questions the practicality of this approach is a quisling.
It is the fullest expression (so far) of the view of leadership held by the new, anti-establishment conservative establishment: Exploit a legitimate populist cause to demand a counterproductive tactic in an insufferable tone, then use the inevitable failure to discredit opponents in an intra-party struggle. More Pickett’s charges, please. They are emotionally satisfying (and good for fundraising). And the carnage may produce new generals, who are more favorable to future Pickett’s charges.
In the process, the GOP is made to look unserious and incapable of governing. But that is beside the point. The advocates of defunding have bigger ideological fish to fry. They argue that, over the decades, Republican compromisers have been complicit in producing a federal government so overgrown that our constitutional order has collapsed beneath it. “I don’t think what Washington needs,” argues Cruz, “is more compromise.”
In this case, the evidence of GOP compromise is not the acceptance of Obamacare. It is insufficient enthusiasm for an absurd procedural maneuver. But never mind. The real target is the idea of compromise itself, along with all who deal, settle or blink.
In the middle of this unfolding Republican debate comes a timely National Affairs article by Jonathan Rauch. It is titled “Rescuing Compromise,” but it might well have been called “James Madison for Dummies.”
Rauch argues that Madison had two purposes in mind as he designed the Constitution. The first was to set faction against faction as a brake on change and ambition — a role that tea-party leaders have fully embraced. Madison’s second purpose, however, was “to build constant adjustment into the system itself, by requiring constant negotiation among shifting constellations of actors.”
Following the Articles of Confederation, America’s founders wanted a more energetic government. But they made action contingent upon bargaining among the branches of government and within them. “Compromise, then, is not merely a necessary evil,” argues Rauch, “it is a positive good, a balance wheel that keeps government moving forward instead of toppling.”
Compromise, of course, can have good or bad outcomes. But an ideological opposition to the idea of compromise removes an essential cog in the machinery of the constitutional order. “At the end of the day,” says Rauch, “the Madisonian framework asks not that participants like compromising but that they do it — and, above all, that they recognize the legitimacy of a system that makes them do it.”
We are seeing that an anti-compromise ideology can make for bad politics. In our system, Obamacare will not be overturned by one house of Congress. A tea-party shutdown strategy — if implemented — would make securing the other house and the presidency less likely for Republicans. And the political energy consumed by Cruz and crew has not been available to promote incremental limits on Obamacare that might have aided GOP political prospects.
But the problems with this view run deeper. A belief that compromise is always favorable to liberalism is historically ill-informed. Ronald Reagan’s 1986 tax reform and Bill Clinton’s 1996 welfare reform were the results of bipartisan compromise. So were Clinton’s four budgets that kept federal spending below 20 percent of GDP. And addressing the long-term debt crisis — really a health entitlement crisis — will not be possible without a series of difficult political compromises on benefit restructuring and revenues.
It is a revealing irony that the harshest critics of compromise should call themselves constitutional conservatives. The Constitution itself resulted from an extraordinary series of compromises. And it created the system of government that presupposes the same spirit. “Compromise,” says Rauch, “is the most essential principle of our constitutional system. Those who hammer out painful deals perform the hardest and, often, highest work of politics; they deserve, in general, respect for their willingness to constructively advance their ideals, not condemnation for treachery.”
But such condemnation, it seems, is an easier path to attention.
By: Michael Gerson, Opinion Writer, The Washington Post, September 27, 2013
“Public Ninth Amendment Fund?”: Ohio PAC, “We’re Buying George Zimmerman A New Gun And We Need Your Help”
The Buckeye Firearms Association, an Ohio-based political action committee, has issued a startling statement in the wake of the George Zimmerman trial: “We’re buying ZIMMERMAN a NEW GUN – We need your help.”
The PAC is in fact not just buying Zimmerman a new gun, but asking the public for donations — “$100 … $50 … $25 … even just $10” – to fund the replacement of his “firearm, holster, and other gear.”
The statement even reminds readers that Zimmerman – who stood trial for the fatal shooting of unarmed 17-year-old Trayvon Martin in Florida – has “no current source of income.”
And last week, conservative author Brad Thor used Twitter to say that he would buy Zimmerman a new gun and “as much ammunition as he wants.”
The offers come after both Thor and the pro-gun group expressed their disagreement with the Department of Justice’s decision to put a hold on all evidence in the case, including the gun that he used to kill Martin, until it can determine whether or not to charge Zimmerman with violating Martin’s civil rights.
The Buckeye Firearms Foundation has now established what it calls the “Zimmerman Second Amendment Fund,” arguing that the fund is “about more than mere principle. …Gun owners must stand together and refuse to allow an injustice like this to go unanswered.”
The article also adds: “Zimmerman and his family now face daily threats on their lives. More than ever, he has a right to defend himself against those who would seek to do him harm.”
Unfortunately, there is no such thing as a “Public Ninth Amendment Fund” to protect those of us who have to share the streets with a gun-toting murderer while still being told we have the right to life.
By: Elissa Gomez, The National Memo, July 22, 2013
“An Empty Ritual”: Republicans Ignore Science And The Supreme Court In New Anti-Abortion Bill
Republicans have once again rolled their old war horse out of the barn for another run at the Constitution. This time the anti-abortion crowd has decided the viability of a fetus outside the womb should be twenty weeks, defying scientific evidence and the Supreme Court‘s settled judgment in repeated cases. Never mind, once again House Republicans oblige by passing the measure, this time accompanied by sly little sex jokes about masturbating male fetuses.
And then what? And then nothing. Talk about masturbation—this is an empty ritual the old bulls of the GOP have been performing for forty years, ever since Roe v. Wade. Sometimes they have even gotten a law enacted. But the story ends the same way—rejection by the Supreme Court, conservative though it is. This time there won’t be any new law, since Senate Democrats won’t allow it. Yet the juggernaut cranks up for another run.
Marjorie Dannenfelser, president of an anti-abortion political action group, called the House vote “historic.” Activists boast that they are winning big at the state level. Fourteen states so far this year have enacted a storm of newly restrictive laws at the state level, suggesting that the anti-abortion cause is cresting anew.
Actually, no. If you look at those fourteen states—from Alabama to Utah—they are pretty much the same states that have been doing this for decades, mostly under-populated and rural. I did a little “back of the envelope” calculation and determined that the fourteen states represent 15 percent of the US population, 47 million out of 308 million.
Many of the states are also from the Deep South. That region has lots of experience defying Supreme Court decisions—the experience of losing in the long run.
By: William Greider, The Nation, June 19, 2013
“There Are No ‘Absolute’ Rights”: Limitations Are Both Possible And Necessary
Every time I write a column on guns, the howl arises that I am talking about a right that is enshrined in the Constitution, buddy, and I better watch myself. The howl then transmutes into an extended harangue that this right is absolute, and no libtard fascist, whether me or the Satanesque Dianne Feinstein, is going to limit the right in any way. The first soldier to charge across this rhetorical veld is followed by hundreds harrumphing their assent. The only problem is that it’s an ahistorical, afactual, and barbaric argument. No right is absolute. In fact, the Second Amendment arguably has fewer restrictions on it these days than many of the other first ten, and there is and should be no guarantee that things are going to stay that way. In fact, if we’re ever going to be serious about trying to stop this mass butchery that we endure every few months, they cannot.
Let’s begin by going down the list and reviewing various limits placed on nearly all the amendments of the Bill of Rights (I thank Doug Kendall of the Constitutional Accountability Center for helping me out here). The First Amendment, of course, guarantees the right to free speech and assembly, and to worship as one pleases. There haven’t been that many restrictions placed on the freedom to worship in the United States, although there is a steady stream of cases involving some local government or school board preventing someone from wearing religious clothing or facial hair or what have you. Sometimes a Christian school or church is denied a zoning permit; but more often it’s the freedom to worship of a minority (Muslim, Sikh, etc) that is threatened.
As for free speech, of course it is restricted. Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. To restrict speech in general, the government must meet four tests. But this is always being revised and negotiated. Here’s one restriction on the Bill of Rights that I’d wager most conservatives would happily approve of. In 1988, the HHS under Reagan promulgated rules prohibiting a family-planning professional at a clinic that received federal dollars from “promoting” (i.e. telling a woman about) abortion. This was challenged partially on free-speech grounds. In Rust v. Sullivan (1991), the Supreme Court held that these rules did not violate the clinicians’ free-speech rights. So far as I can see, this is still law. It’s just one example from many free-speech restrictions that have been imposed over the years, as you can see here.
Let’s skip the Second Amendment for now. The Third Amendment—my personal favorite—proscribes the private quartering of troops. Not so relevant to life today—in fact, the Supreme Court has apparently never considered a Third Amendment challenge. Onward.
The Fourth Amendment protects against unreasonable search and seizure, and of course there are loads of exceptions to this right, the most notable being that whenever an officer of the law has reason to think an imminently dangerous situation exists, s/he may invade a citizen’s privacy. Then there’s the question of the “exclusionary rule,” by which evidence deemed to have been improperly obtained can be excluded as evidence. Jurisprudence on this question goes back a hundred years, and this very interesting paper notes that it has been two decades since the Court upheld the application of the exclusionary rule in a search-and-seizure case. Since then, the Rehnquist and Roberts courts have ruled six times—every time for the government, i.e., limiting the constitutional protection. (Funny, isn’t it, how many of these other, non-gun limitations on the Bill of Rights are championed by conservatives?)
The Fifth Amendment most famously protects against self-incrimination. Kendall notes that there have indeed been almost no restrictions placed on this right—inside the trial courtroom. Outside the courtroom, however, limitations are rife, having to do mostly with circumstances of interrogations and confessions made within them. This amendment also provides for due process, and that means Miranda rights, and again here, we know from recent news stories that not everyone is immediately read them, and we also know that it’s conservatives who have always despised Miranda in the first place and seek to limit or overturn it today.
The Sixth Amendment provides the right to counsel and a speedy trial, and here again, our time is witness to a slow watering down of these rights by the Court’s conservative majority, as in 2009’s Montejo v. Louisiana. The Seventh Amendment guarantees the right to a trial by jury in civil cases, and this contains a blatant restriction: the Court has never “incorporated” this right to apply to states, where the majority of civil cases are tried, so most civil cases don’t include this right. And the Eighth Amendment, against cruel and unusual punishment, has been much contested with respect to issues like juvenile crime. The Ninth and Tenth Amendments don’t enumerate specific rights as such and so aren’t relevant.
Now, back to the Second Amendment. I’m sure that pro-gun extremists know very well about Scalia’s famous opinion in Heller (2008), which dramatically expanded gun rights. But even in that decision, Scalia himself said that Second Amendment protections could apply only to weapons “in common use at the time.” Chris Wallace asked Scalia in 2012 about semiautomatic weapons and extended magazines, and he said: “What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes, there are some limitations that can be imposed.”
Now I don’t trust him to rule that way as far as I could throw him, but if even Scalia is saying that, then yes, limitations are both possible and reasonable.
Imagine what conservatives would think of a group of liberals who insisted, while threatening an insurrection, on a pure and absolute interpretation of the Fourth or Sixth Amendment—and imagine how ridiculous they would look to average Americans. Hunters, sportsmen, collectors, and even defenders of their homes (misguided as they may be, according to the statistics certainly do have rights to keep and bear arms that are reasonable and should not be trampled. But the idea that any right is unrestricted is totally at odds with history, the law, and reality. And the idea that a group of Americans possesses an absolute “right” to own and keep weapons that can—and in practice do—kill numerous innocent people in seconds, destroying families and communities and tearing at the nation’s collective soul, is barbaric and psychotic. As the old saying goes: if you want to shoot an assault weapon, go enlist.
For civilians, meanwhile, we’re one Supreme Court justice away from getting some sanity and balance to interpretations of the Second Amendment, and the only thing I can’t decide is whether it would be more delicious for Barack Obama to appoint that judge or for Hillary Clinton to do it.
By: Michael Tomasky, The Daily Beast, May 5, 2013
“Cherry Picking The Constitution”: Conservative Constitutional Hypocrisy On Gun Control And The 4th Amendment
The Second Amendment and the Fourth Amendment. They’re like kissing cousins, separated in the Constitution by a mere 32 words. And lately they’ve been all over the news.
Now, I don’t know how you feel about the amendments; maybe you have no opinion of them at all. But ask some conservatives and it’s like they don’t even appear in the same document. And when you think about it, that’s a pretty strange thing. Pretty revealing, too. Here’s why:
If you read the Second and the Fourth Amendments without knowing anything about the surrounding politics and then were asked which one conservatives like better, you might well pick the latter. If ever there was an amendment written to appeal to people who are skeptical of big government, this is it. There’s the big bad government, it wants to take your property and your freedom, but the Fourth Amendment says “no way, not on my watch.” It’s a Tea Partier’s dream.
But conservative courts have spent the past few decades carving one exception after another out of the Fourth Amendment and, if the reaction to the Boston Marathon bombing is any indication, a loud contingent on the right is intent on finding even more.
No, it’s the Second Amendment that most conservatives love. Try to pass even the most benign measure aimed at reducing gun violence, as the Senate did just days ago, and they’ll marshal their every resource to defeat it. The reason: They say it’s because they’re strict constructionists and any restraint on guns would violate the plain meaning of the Second Amendment.
One approach to one amendment, a very different approach to another. How to reconcile? There’s one thing that can help make sense of this mess: a marked lack of intestinal fortitude.
Let’s say your thinking about criminal justice is principally governed by being afraid. In that context, if you think guns are an effective way to protect yourself, you’ll want your right to have guns interpreted as expansively as possible, because you’re afraid of what will happen to you if it isn’t. And you’ll want the rights of people who have been accused of committing crimes to be interpreted as narrowly as possible so they are taken off the streets.
As it happens, that’s a pretty good summation of conservative doctrine when it comes to these amendments.
All of which reveals something else about how conservatives think when they look at the Constitution:
It matters who its provisions are perceived to be protecting. Conservatives think the Second Amendment protects them, so they want it as unfettered as possible; but they think the Fourth Amendment protects someone who they find threatening, so they want it to be as weak as possible.
You can take this approach to constitutional interpretation, of course, but if you do, please stop suggesting it has anything to do with fidelity to profound constitutional principles.
There can be no doubt that the Fourth Amendment makes it harder on law enforcement to solve some crimes, but it does so in the service of a larger goal: protecting the accused from the unfettered predations of an overreaching state or the passions of the mob. And, as has been roundly discussed, the idea that the Second Amendment was designed to allow every citizen to be a weapons armory all their own reflects a willful misreading of history.
Both amendments reflect trade-offs that the framers consciously made. We may not like them, but they’re there. And respect for the Constitution requires that we recognize them. If you call yourself a strict constructionist, you can’t pick and choose which provisions of the Constitution you are going to strictly construe. If that’s your approach, there’s another word that may provide a more apt description: hypocrite.
In a lot of cases, fear is a good thing. It’s a warning system that keeps us out of trouble, guides us away from danger, and, in some cases, keeps us alive. But when we allow fear to be the guiding principle of our public policy that gives rise to dangers all its own.
Many conservatives spend a lot of time portraying themselves as tough guys, straight shooters who don’t let emotion get in the way of what has to be done. In the same breath they are likely to portray liberals as weak and craven. But this is just one example of how the reverse is true.
Setting aside something that makes you feel secure on a personal level in the advent of reforms that will actually make many others safer and sticking to the principles upon which our country was founded even in times of crisis — that’s what takes guts. And it’s time for conservatives to show some.
By: Anson Kaye, U. S. News and World Report, April 25, 2013
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