“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
“On July 4, A Message For Patriots Of All Persuasions”: We Need To Remind Ourselves, There Is No Monoply On Patriotism
When the flags fly proudly on the Fourth of July, I always remember what my late father taught me about love of country. He was a deeply patriotic man, much as he despised the scoundrels and pretenders he liked to mock as “jelly-bellied flag flappers.” It is a phrase from a Rudyard Kipling story that aptly describes the belligerent chicken-hawk who never stops squawking – someone like Dick Cheney or Rush Limbaugh.
Like many who volunteered for the U.S. Army in World War II, my dad never spoke much about his four tough years of military service, which brought him under Japanese bombardment in the Pacific theatre. But eventually there came a time when he attached to his lapel a small, eagle-shaped pin, known as a “ruptured duck” – a memento given to every veteran. With this proof of service, he demonstrated that as a lifelong liberal, he loved his country as much as any conservative.
Would such a gesture resonate today? Right-wingers have long sought to establish a monopoly on patriotic expression. On this holiday, when we celebrate the nation’s revolutionary founding, we need to remind ourselves just how hollow that right-wing tactic is and always has been. Only our historical amnesia permits the right – infested with neo-Confederates and other dubious types — to assert an exclusive franchise on the flag, the Declaration of Independence, the Constitution, and the whole panoply of national symbols. In the light of history, it should be plain that progressives are fully entitled to a share of America’s heritage; indeed, perhaps even more than their right-wing rivals.
Let’s begin at the official beginning. Although “right” and “left” didn’t define political combat at that time on these shores, there isn’t much doubt that behind the American Revolution, and in particular the Declaration of Independence, was not only a colonial elite but a cabal of left-wing radicals as well.
How else to describe Samuel Adams and Thomas Paine, the revolutionary idealists who declared their contempt for monarchy and aristocracy? It is true that many of their wealthier and more cautious comrades in the Continental Congress disdained Adams as a reckless adventurer “of bankrupt fortune,” and Paine as a rabble-rousing scribbler. Of course popular democracy was a wildly radical doctrine in colonial times, only tamed in the writing of the Constitution by the new nation’s land-owning elites and slaveholders.
The right-wingers of that era were the Tories — colonists who remained loyal to the British crown, opposed to change, and, in their assistance to George III’s occupying army, exactly the opposite of patriots. Only after two centuries of ideological shifting can Tea Party “constitutionalists” claim that the republican faith of the Founding Fathers is “conservative.”
The Civil War was just as plainly a struggle between left and right, between patriots and … well, in those days the Confederate leaders were deemed traitors (a term avoided since then out of a decent concern for Southern sensibilities). Academics dispute the war’s economic and social basis, but there is no doubt that the 19th-century left sought to abolish slavery and preserve the Union, while its right-wing contemporaries fought to extend slavery and destroy the Union.
Reverence for the Confederacy remains an emotional touchstone for right-wing Southern politicians and intellectuals (not to mention the Ku Klux Klan, assorted neo-Nazis, and many activists in the Tea Party). All of these disreputable elements denigrate Lincoln, our greatest president, and promote nostalgia for the plantation, sometimes known as “the Southern way of life.” The latest example is Chris McDaniel, the defeated Tea Party candidate for the Senate in Mississippi, a flag-waver if ever there was one – except when he was delivering fiery speeches to the secessionist Sons of Confederate Veterans. At the risk of offending every “conservative” who runs around with a Stars and Bars bumper sticker, it is hard to see how his conduct qualifies as American patriotism.
Still another inglorious episode in the annals of the right preceded World War II. The “America First” movement that opposed U.S. intervention against Hitler camouflaged itself with red, white and blue but proved to be a haven for foreign agents who were plotting against the United States. (Philip Roth brilliantly depicted this sinister campaign in The Plot Against America.)
Although Communists and pacifists had opposed American entry into the war for their own reasons, the broad-based left of the New Deal coalition understood the threat from the Axis very early. After Pearl Harbor most conservatives honorably joined the war effort, but some continued to promote defeatism and appeasement. And the historical roots of postwar conservatism — the “Old Right” of Joseph McCarthy and Pat Buchanan, the Buckley family and yes, the Koch brothers — can be traced to those prewar Nazi sympathizers.
What does true patriotism mean today? Do you truly love your country if you are a corporate leader hiding billions of dollars in profits offshore or insisting on the declining wages that have ruined the American dream? Do you love your country if you demand the right to pollute its air and water and despoil its countryside, no matter the cost to future generations? Do you love your country when you scheme to deprive your fellow citizens of the right to vote, which so many died to preserve?
Somehow the wingers righteously wrap themselves in Old Glory, as if our heritage belongs to them alone. On this holiday, and every other day, it surely does not.
By: Joe Conason, Featured Post, The National Memo, July 4, 2014
“This Is Not Your Independence Day”: Celebrating The Birth Of An Imperfect Union As The Fight For ‘Freedom’ Has Yet To Be Won
Every year, proud U.S. citizens across the country take a break from daily life to commemorate the birth of America. Dusting off the grill, buying frozen meat en masse, attempting to retreat to the nearest body of water, and putting sparklers in the hands of small children might not be exactly what our founding fathers envisioned, but who am I to argue with a long weekend? I enjoy a good fireworks show as much as the next girl. And beachside BBQs? I’m in. Red, white, and blue happens to be the color scheme of my most flattering bikini, so by all means, pass the veggie dogs and pump up the revelry.
But amidst the pomp and circumstance, please don’t wish me a “Happy Independence Day!”
The 4th of July might commemorate the independence of our country — but it also serves as a bitter reminder that in 1776, the country that I love had no place for me in it.
When our founding fathers penned, “All men are created equal,” they meant it. Not all people. Not all humans. Just all men — the only reason they didn’t feel obliged to specify “white” men is because, at the time, men of color were considered less than men, less than human.
The 4th is not my Independence Day — and if you’re a Caucasian woman, it isn’t yours either. Our “independence” didn’t come for another 143 years, with the passage of The Woman’s Suffrage Amendment in 1919. The 4th of July is also not Independence Day for people of color. It wasn’t until the 15th Amendment was ratified in 1870 that all men had the right to vote regardless of race — on paper, that is, not in practice. People of color were systematically, and all too successfully, disenfranchised for another century. July 4th of 1776 was certainly not a day of Independence or reverence for Native Americans. It wasn’t until 1924 that Native Americans could unilaterally become citizens of the United States and have the voting rights to go with it.
Now, before anyone argues that Independence is about more than voting rights, I’d like to point out that our Founding Fathers would fundamentally disagree with you. The Revolutionary War was fought, in large part, because of “taxation without representation” — the then English colonists believed they were not free because their voices were not represented. The right to vote, the right to have your say is the delineating characteristic of a democracy.
There is nothing finite about freedom. July 4, 1776 was a definitive step forward in the struggle toward freedom and democracy but we were a long way off from achieving it. And while we have advanced in leaps and bounds — my patriotic swimwear goes over way better in Williamsburg, Brooklyn than it would have in Colonial Williamsburg — we are still a far way off from the freedom and independence we’re celebrating.
A resurgence in voter ID laws put in place to once again disenfranchise minorities challenges our collective independence.
This week’s Hobby Lobby ruling — deciding that a woman’s employer has any say in her health care — is a challenge to the ideology of freedom and autonomy our country was founded upon.
The on-going fight for marriage equality prevents same-sex couples in many states from the pursuit of happiness that they are constitutionally guaranteed.
So by all means, enjoy your long weekend. Raise a beer to the ideals of progress and democracy that the 4th of July represents.
But remember that you are celebrating the birth of an imperfect union, remember that the fight for ‘freedom’ has yet to be won — and if you must wish someone a “Happy Independence Day!”, make sure you’re doing something to maintain and advance the Independence you have come to appreciate.
By: Carina Kolodny, The Huffington Post Blog, July 3, 2014
“An Authoritarian System”: If God & Founders Solved It All, Why Bother With Democracy?
There’s an interesting op-ed up at WaPo today from Michigan State political scientist Matt Grossman arguing that conservatives are only “obstructionists” insofar as “most policies under debate are liberal,” not just now but for decades.
Grossman is implicitly illustrating a point about “constitutional conservatism” that I’ve often tried to make: If the divinely inspired Founders pretty much figured out the ideal governing model for all time (except for that troublesome bit about slavery), then all political controversy involving the limitation of absolute property rights and states’ rights is illegitimate and should be obstructed. This means that strictly speaking the “constitutional conservative” vision is perfectly compatible with an authoritarian system in which “illegitimate” policy options are off the table.
I’m not accusing such conservatives (much less Grossman, who doesn’t Go There at all) of advocating an authoritarian system, though proposals like the Cut, Cap and Balance Constitutional Amendment do indeed seek to permanently proscribe a significant part of liberal social and economic policies. But if conservatives sometimes seem cavalier about respecting democratic norms, including the right to vote, there’s your explanation.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April9, 2014
“Listening To The Founding Fathers”: Constitutionalism With An Anti-Government Ideology Is Historically And Philosophically Mistaken
A political backlash has commenced within the Republican Party against tea party and libertarian groups that have limited interest in securing Republican victories and majorities. Elected leaders, party officials and business groups have begun pushing back against self-destructive legislative strategies and unelectable primary candidates.
But the GOP’s political reaction often concedes a great deal of ideological ground to anti-government populism — what its advocates describe as “constitutionalism.” Our national recovery, in this view, depends on returning to the severely constrained governing vision of the Founding Fathers, as embodied in the Constitution. Many Republicans now seem to be saying: Yes, this is the conservative ideal, but it is just not practical to implement at the moment.
This cedes too much. In a new essay in National Affairs, “A Conservative Vision of Government,” Pete Wehner and I argue that the identification of constitutionalism with an anti-government ideology is not only politically toxic; it is historically and philosophically mistaken.
It is not enough to praise America’s Founders; it is necessary to listen to them. The Federalist Founders did not view government as a necessary evil. They referred to the “imbecility” of a weak federal government (in the form of the Articles of Confederation) compared to a relatively strong central government, which is what the Constitution actually created. Though they feared the concentration of too much power in one branch of government, they believed that good government was essential to promote what they called the “public good.”
And they assumed that the content of the public good would shift over time. “Constitutions of civil government,” argued Alexander Hamilton in Federalist No. 34, “are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages. . . . Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen.”
In the tradition of the Federalist Founders, Abraham Lincoln believed the federal government should be capable of adjusting to changing circumstances and active in pursuit of national purposes. In his “Fragment on Government,” Lincoln described a number of matters requiring the “combined action” of government, including “public roads and highways, public schools, charities, pauperism” and “providing for the helpless young and afflicted.”
Conservatives naturally want to be seen as defenders of the Constitution. But “constitutional conservatives” need to recognize what both the Federalist Founders and Lincoln actually envisioned for the republic they respectively created and preserved. Far from being constrained by the political and economic arrangements of an 18th-century coastal, agrarian republic, the Founders fully expected the United States to spread across a continent, undergo economic and social change and emerge as a global actor. And they purposely designed a constitutional system that could accommodate such ambitions.
This is not to argue that the Founders would be happy with the current size and role of government. But, after protecting a variety of essential civil liberties, they placed such matters mainly in the realm of democratic self-government. They made it procedurally difficult for majorities to prevail. But they placed few limits on the public policies that durable majorities might adopt in the future — leaving “a capacity to provide for future contingencies.”
In our time, durable majorities have endorsed the existence of Social Security and Medicare. These roles of government were not envisioned by the Founders. But they do not violate a principle of our system nor run counter to the prescient mind-set of the Founders. People are free to argue for and against such programs. But this debate can’t be trumped or short-circuited by simplistic and legalistic appeals to the Constitution as a purely limiting document.
The broad purposes of the modern state — promoting equal opportunity, providing for the poor and elderly — are valid within our constitutional order. But these roles are often carried out in antiquated, failing systems. The conservative challenge is to accept a commitment to the public good while providing a distinctly conservative vision of effective, modest, modern government.
But a shift in mind-set is first required among conservatives: thinking of government as a precious national institution in need of care and reform. This would honor the Founders. The real Founders.
By: Michael Gerson, Opinion Writer, The Washington Post, January 2, 2013
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 