“The Constitutional Excuse For Subverting Democracy”: Just Another Conservative Heads-We-Win-Tails-You-Lose Proposition
To anyone puzzled or confused about the preferred Tea Party self-identification buzzword “constitutional conservative,” George Will has done a fine job in his latest column spelling it all out, by way of touting a new book by Timothy Sandefur of the Pacific Legal Foundation. Progressives believe the Constitution provides a process that facilitates democracy. Conservatives understand that it’s a safeguard against the limitation of “natural” rights by democratic majorities.
This sounds reasonable if you accept the rather cartoonish idea that progressives do not acknowledge any limitations on popular majorities, or that the two sides mean roughly the same thing when they talk about individual rights. Here Will is not as forthcoming as he might have been, but his extensive discussion of the alleged incorporation of the Declaration of Independence into the Constitution–an invariable touchstone for Constitutional Conservatives–alludes to the common conservative belief that via the Declaration certain divinely granted or naturally endowed “rights”–particularly the untrammeled enjoyment of private property and the “right to life” of zygotes–trump the founding document itself.
You can think of it as a vastly more sweeping conservative version of the “penumbra” theory whereby Justice Douglas identified an implicit “right to privacy” in the Bill of Rights. And indeed, critics of Douglas’ opinion in Griswold v. Connecticut (itself a precedent for Roe v. Wade) have sometimes compared it to the “substantive due process” concept of the Lochner v. New York decision under which progressive social and economic legislation was routinely struck down as violating immutable private property rights until Lochner was overturned in 1937. It’s no accident that Will’s hero Sandefur is a latter-day defender of Lochner.
I’m no constitutional lawyer, and so won’t go into the argument over Lochner (or for that matter, Griswold) in detail, but it’s worth noting the practical effect this idea of supra-constitutional limitations on democratic majorities has on conservative political argumentation. When they aren’t describing America as a “center-right nation” or predicting perpetual Republican electoral landslides, or indulging in a “populist” appeals whereby “real Americans” are told they are being illegitimately outgunned by voter fraud or voter bribery, conservatives are prone to retreat into this impregnable fortress of constitutionalist theory which prohibits as a matter of fundamental law most progressive legislation. This redoubt makes it psychologically very easy to rationalize restrictions on voting, or mendacious campaign ads, or unlimited campaign spending by wealthy individuals, or abuse of the filibuster or other anti-democratic mechanisms. After all, conservatives are simply defending themselves against laws and policies that really ought to be struck down by the courts as unconstitutional–you know, like the Lochner-era courts routinely did with progressive legislation up through the early New Deal.
It’s at bottom just another heads-we-win-tails-you-lose proposition whereby American conservatives tend to support the constitutional arguments that in any given circumstance happen to support their policy goals.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 17, 2014
“No, Asshole, You’re Totally Wrong”: What Plantation Is Jim DeMint Living On?
I once had this idea for a play about God, a comedy, in which the audience would be introduced to a series of casuists and charlatans and braggarts and bloviators, and they’d be carrying on, lecturing away on topics large and small with serene self-confidence. There’d be the sound of thunder and perhaps a puff of smoke, and from the wings, God would appear. He or She would, over the course of the three acts, take on numerous corporeal forms—white man, black woman, Asian man, Arab woman, et cetera—but in each guise would admonish the speaker: “No, asshole. You’re totally wrong. How do I know? Because I’m God, and you’re wrong.”
The idea came to me, of course, because of life’s endless pageant of moments when one wishes life really worked that way. But I don’t know if I’ve ever wished it more than I did two days ago, when Jim DeMint, the ex-senator and Heritage Foundation head who defines the words casuist and charlatan and braggart and bloviator and about 262 others that are worse, said that the federal government of the United States did nothing to end slavery. The salient words:
Well the reason that the slaves were eventually freed was the Constitution, it was like the conscience of the American people. Unfortunately, there were some court decisions like Dred Scott and others that defined some people as property, but the Constitution kept calling us back to ‘all men are created equal and we have inalienable rights’ in the minds of God. But a lot of the move to free the slaves came from the people, it did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves.
Please, I beg of you, don’t do DeMint the honor of thinking him merely stupid. He’s probably that, in some way. Certainly those sentences add up to a mountain of stupid, a Himalayan range of it. Yet at the same time, a statement this insane can’t be propelled merely by stupidity. A denial of reality this whole, this pure, requires, I think, some thought, some premeditation. Dwell with me on this for the moment.
Today’s radical conservatives like DeMint want to destroy government. This means in the first instance discrediting everything government does in the present. That, we’re all plenty familiar with. It’s a lot of what we fight about all the time.
But the project also includes history—proving that nothing good that ever happened in history was done by the government. Oh, they might grant you a war here or there, these wingers. They’re OK with war (when we win them—when we’ve lost them, that was of course the liberals’ fault). But nothing else.
Often, this is easy enough. Example: The great post-war prosperity boom and middle-class expansion. We on my side say: unionization, massive public investments, a tax rate that kept the coffers full, a few other things. DeMint and his type can’t have that, so they say: American ingenuity, a free-market system that encouraged initiative, no big bloated welfare state yet, etc. That’s a simple one. Left and right offer competing narratives, and to most people, parts of each probably sound plausible.
But then you get to trickier matters. How, as a radical conservative today, and especially a Southern one, and especially one from the state (South Carolina) that started the Civil War (first to advance nullification, first to secede, first shots fired), are you supposed to explain that war? And how are you supposed to explain slavery? Tough ones. If you ever visit any of those crackpot websites I look at sometimes, you’ve seen, for example, the commonly advanced idea that the Civil War wasn’t really about slavery, it was about states’ rights and economics and so on. I guarantee you that notion will show up pretty quickly in this very comment thread.
But that explains only the war’s beginning, not its end. I had not heard, until DeMint’s comments here, their theory on the war’s end, and more deliciously on slavery’s. So it was “the conscience of the American people” that ended it. And the Constitution, which “kept calling us back to ‘all men are created equal and we have inalienable rights.’” And William Wilberforce. But whatever it was, it wasn’t “big government.”
Interesting interpretation, eh? DeMint’s “conscience of the American people” x’s out of history the Emancipation Proclamation, which strikes me as an act of the federal government (a presidential order); also the Thirteenth Amendment, which outlawed slavery and, as an amendment to the Constitution, was surely an action of the government. It also x’s out the war itself, fought to the end, no matter what today’s Confederate revisionists say, to wipe out slavery once and for all.
As for the Constitution, well, there’s the fact that the words DeMint quotes appear not in the Constitution but the Declaration of Independence, but there are bigger problems here than that. If Jim DeMint had been alive in 1860, it’s reasonable to assume that he’d have gone with the flow in his state, correct? So he’d have supported secession. And, big cheese that he is, he’d have likely played some role in creating the Confederate States of America. And in turn he’d likely have signed the Confederate Constitution, thus pledging his loyalty to a document that explicitly prohibited the Confederate government or its several states from interfering in slave ownership in any way, including a specific provision stating that any territories the CSA gained via war or any other means would become slaveholding states. That would have been Jim DeMint’s Constitution, not the one you and I heed.
Finally, this Wilberforce business. They love Wilberforce, today’s rad-cons. He was a devout Christian, you see, and a conservative; and yet at the same time a stern abolitionist. What a useful combination! Invoking Wilberforce allows conservatives like DeMint to pretend that he, not Calhoun, is their moral lodestar and inspiration. It’s somewhat problematic for them that while Wilberforce did indeed fight slavery, he did so in England, where he actually lived, not in America. And only up until 1833, when he died. Besides which the fiery abolitionists in America, William Lloyd Garrison and so forth, were quite religious too, but on the political left.
There is such a thing as having a legitimate difference of opinion on a question of history. Was Napoleon the embodiment or the corruption of the French Revolution, to take an obvious example—historians will argue that one till the end of time. But DeMint doesn’t have a legitimate difference of opinion. He has a wholly ideological one, designed not to spur historical debate but to justify his miserly posture toward contemporary politics.
And so every sentence that came out of his mouth was just utter nonsense. But not just that–premeditated, pernicious, and malicious nonsense, spun to serve contemporary ends like fighting the delivery of health coverage to millions. Physicians have boards to answer to, lawyers the local bar; but in politics and media, there’s no panel that can police this drivel and declare DeMint unfit for participation in public discourse. And so he gets to say these utterly insane things but still get quoted in the papers as if he were a serious person. And the rest of us just have to endure him. God, if you’re there, now would be a good time to show up.
By: Michael Tomasky, The Daily Beast, April 11, 2014
“Jelly Belly Flag Wavers”: Remembering Why The Right Doesn’t Own The Stars and Stripes
Like many men who volunteered for the U.S. Army in World War II, my late father never boasted about his years in uniform. A patriot to his core, he nevertheless despised what he called the “jelly-bellied flag flappers.” But in the decade or so before he passed away, he began to sport a small, eagle-shaped pin on his lapel, known as a “ruptured duck.” Displaying the mark of his military service said that this lifelong liberal loved his country as much as any conservative — and had proved it.
Are such gestures still necessary today? For decades right-wingers have sought to establish a near-monopoly on patriotic expression, all too often with the dumb collusion of some of its adversaries on the left. But on July 4, when we celebrate the nation’s revolutionary founding, I always find myself pondering just how fraudulent and full of irony this right-wing tactic is. It is only our collective ignorance of our own history that permits conservatives to assert their exclusive franchise on the flag, the Declaration of Independence, and the whole panoply of national symbols, without provoking brutal mockery.
But we need not play their style of politics to argue that the left is equally entitled to a share of America’s heritage — indeed, in the light of history, perhaps more entitled than its rivals. So let’s begin, in honor of the holiday, 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.
What other description would have fitted such figures as Samuel Adams and Thomas Paine, who declared their contempt for monarchy and aristocracy? Their wealthier, more cautious colleagues in the Continental Congress regarded Adams as a reckless adventurer “of bankrupt fortune,” and Paine as a rabble-rousing scribbler. Popular democracy was itself a wildly radical doctrine in the colonial era, tamed in the writing of the Constitution by the new nation’s land-owning elites and slaveholders.
The right-wingers of the Revolutionary era were Tories — colonists who remained loyal to the British crown, fearful of change and, in their assistance to the occupying army of George III, the precise opposite of patriots. Only from the perspective of two centuries of ideological shift can the republican faith of the Founding Fathers be described as “conservative.”
The Civil War, too, was a struggle between left and right, between patriots and … well, in those days the Confederate leaders were deemed traitors (an epithet now usually avoided out of a decent concern for Southern sensibilities). Academics will argue forever about that war’s underlying economic and social causes, but it was the contemporary left that sought to abolish slavery and preserve the Union, while the right fought to preserve slavery and dissolve the Union. Today, reverence for the Confederacy remains the emotional province of extremely right-wing Southern politicians and intellectuals (as well as the Ku Klux Klan and neo-Nazi skinheads, and not a few members of the Tea Party). These disreputable figures denigrate Lincoln, our greatest president, and wax nostalgic for the plantation culture.
At the risk of offending every furious diehard who still waves the Stars and Bars, it is fair to wonder what, exactly, is patriotic about that?
Yet another inglorious episode in the annals of conservatism preceded the global war against fascism. The so-called 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. While Communists and some other radicals also initially opposed American entry into World War II for their own reasons, the broad-based left of the New Deal coalition understood the Axis threat very early. Most conservatives honorably joined the war effort after Pearl Harbor, but more than a few on the right continued to promote defeatism and appeasement even then. And with all due respect to neoconservatives and other late-arriving right-wingers, the historical roots of postwar conservatism — the “Old Right” of Joe McCarthy and Pat Buchanan, the Buckleys and the Kochs — can be traced to those prewar sympathizers of the Axis.
The criminal excesses of the Cold War in Vietnam and elsewhere, so eagerly indulged by the right to this day, alienated many Americans on the left from their country for a time. Conservatives seized the opportunity presented by flag-burning protests and other adolescent displays to marginalize their ideological opponents as un-American, although only a tiny minority dove off that deep end. But how many conservatives like Dick Cheney and Rush Limbaugh beat the Vietnam draft while liberals like John Kerry, Al Gore, and Wesley Clark all served? And who truly protected this country’s best interests back then — the politicians who dispatched 50,000 young Americans to their deaths in the rice paddies, or those who dissented?
It is a lesson we didn’t learn in time to save us from another debacle in Iraq, when dissent was again vilified – and again proved more sane and patriotic than the bloodlust of the chicken-hawks.
Yet somehow our wingers always manage to wrap themselves in Old Glory, as if it belongs to them alone. But on this holiday, and every day, it assuredly does not.
By: Joe Conason, The National Memo, July 2, 2013
“Clearly In Peril”: Thomas Jefferson’s View Of Equality Under Siege
On the 236th anniversary of our nation’s birth — squalling to the world in our very first utterance that all men were created equal and endowed with unalienable rights — the essence of our politics remains who exactly are those men who are self-evidently equal and inherently vested with those rights. Over the subsequent two-plus centuries, we’ve invoked the spirit of our primal shout every time we’ve expanded our definition of equal men — when we moved to popular elections, abolished slavery, gave women the vote, enacted civil rights legislation and today, when gays and lesbians are winning the equal status and unalienable rights that heterosexual Americans take for granted.
But the author of our founding declaration was concerned with more than legal equality. Thomas Jefferson envisioned a nation of yeoman farmers (and, to be sure, slaveholders like himself) and wanted it to remain chiefly rural to avoid the concentration of wealth and power that would come if the nation urbanized and if finance grew into a dominant sector. His great rival Alexander Hamilton feared that the nation would remain a backwater absent cities, finance and manufacturing. As Treasury secretary, Hamilton used the powers of the nascent republic to foster industry and development. As the United States grew into the world’s dominant economy, the concerns that Jefferson voiced grew more acute. How could the United States retain its formal equality and civic virtue in the face of towering economic inequality that enabled the rich to dominate our political system?
In the first half of the 20th century, both Roosevelts and their allies devised reforms to restore some of Jefferson’s egalitarianism in what was, by then, Hamilton’s America. Progressive taxation, the establishment of wage and labor standards and the legalization of unions reduced economic inequality, while the prohibition of corporation donations to political campaigns diminished, somewhat, the wealthy’s sway over government.
But that, as they say, was then. The war that the American Right and corporate elites have waged against the Roosevelts’ Jefferson-Hamilton synthesis for the past 40 years has largely prevailed. Taxes have grown radically less progressive, the minimum wage has declined as a percentage of the median wage and unions’ legal protections to organize in the face of employer opposition have eroded. In consequence, wages are at their lowest level since the end of World War II as a share of the national income, and U.S. median household income is at roughly the same level it was 20 years ago. The nation is richer and more productive than it was 20 years ago, but all that added income and wealth has gone to the top 10 percent, and disproportionately to the richest 1 percent.
The growing concentration of wealth has led to a growing concentration of political power as well. The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission struck down 100 years of legal restraints on corporations’ ability to fund campaigns and buy elected officials. The court permitted unions to dip into their treasuries to fund campaigns too, but, as I noted last week, its decision last month in Knox v. Service Employees International Union, Local 1000 — issued by the same five conservative justices who promulgated Citizens United — created a legal double standard between unions and corporations. By virtue of Knox, a union must ask its members’ permission to spend on political campaigns, but a corporation need not ask its shareholders.
So how is our foundational assertion of equality faring on this July Fourth? As to social parity, it has seldom looked more robust. As to economic equality and the political equality with which it is inextricably intertwined, the picture is bleak. The mega-banks that plunged us into deep recession have had the political power to forestall their breakup. A handful of billionaires continues to donate unprecedented sums to election campaigns. The share of national income and wealth that goes to the vast majority of Americans continues to decline. The Republican Party — and the five Republican appointees to the Supreme Court — are committed to doctrines that will make these disparities more glaring. The recent exception to this trend is the health-care-reform act, which partially extends the Declaration’s assertion of equal rights to the realm of medical access. That’s no small achievement, but, with that single exception, on this July Fourth, Jefferson’s vision of equality is clearly in peril.
By: Harold Meyerson, Opinion Writer, The Washington Post, July 3, 2012
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 