“Adjudicating From The Legislature”: Yes, Constitutional Conservatives Are Radicals
This morning Brother Benen looked at a proposal by Steve King to strip the federal judiciary of jurisdiction over any case involving marriage and noted its provenance in prior right-wing court-stripping measures. But he also suggested such advocacy ought to debar King from calling himself a “constitutional conservative.”
Whatever one thinks of marriage equality, court-stripping is itself ridiculous. The constitutional principles of “separation of powers” hasn’t disappeared just yet, so the idea that the legislative branch will dictate to the courts what kind of cases judges are allowed to hear is more than a little crazy – it undermines the very idea of an independent judiciary.
And it sure as heck isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – King and his cohorts want to adjudicate from the legislature.
I think a clarification is appropriate here. People like King use the modifier “constitutional” before “conservative” to indicate that they are not interested simply in opposing change or in going back to very recent public policies. Their eyes are fixed on a distant vision of the perfect governing order that they believe the Founders spelled out before it was ruined by courts and legislators and presidents alike. And it certainly does not include the right of final judicial review as understood by the rest of us. And so their expedient is court-stripping schemes which they believe help restore the proper constitutional order, or at least prevent current disorders from getting worse.
Just as “constitutional conservatives” tend to believe that absolute property rights and even fetal rights were embedded in the Constitution, never to be removed without an explicit amendment, they believe in an eternal scheme of states’ rights that would most definitely include all matters related to marriage. So in their minds, that eternal scheme, not recent precedents, in what defines “conservatism,” and thus the most radical measures are justified to bring back the “Constitution” as they understand it.
Of course constitutional conservatives are radicals. But many of them believe they are fighting for a governing model quite literally handed down by God Almighty, who intended it to be maintained quite literally forever. And that is indeed a conservative–and a radical–way of looking at things.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, April 23, 2014
“The Tea Party Will Never Understand The Constitution”: What The Right Misses About Its Favorite Document
With the 2016 election cycle having kicked into first-gear already, any American who hasn’t inured themselves to the monotonous (and often ultimately meaningless) repetition of the word “Constitution” is advised to get to self-desensitizing — and quick.
Sens. Rand Paul and Ted Cruz have already made a fetishized version of the U.S.’s supreme governing document central to their campaign rhetoric; and even politicians less beloved by the supposedly Constitution-crazy Tea Party, like Jeb Bush or Hillary Clinton, are likely to soon follow suit. That’s how American politics functions now, in the era of the NSA, Guantanamo Bay, lethal drone strikes and endless war.
But as that list of questionable policies suggests, there’s an unanswered question lurking behind so much of our happy talk about the Constitution — namely, do we even understand it? As dozens of polls and public surveys will attest, the answer is, not really. And that’s one of the reasons that Yale Law School professor Akhil Reed Amar has decided to write a multi-book series about the Constitution so many Americans claim to love, but so few seem to understand. “The Law of the Land: A Grand Tour of our Constitutional Republic,” released earlier this month, is that project’s latest addition.
Recently, Salon spoke over the phone with Amar about the Constitution, his books, and why he sees Abraham Lincoln as perhaps the United States’s real founding father. Our conversation is below and has been edited for clarity and length.
So this book is part of a larger, multi-book project on the Constitution. The first was a biography of the document, the second was about its “unwritten” provisions, and this is the third. What’s your focus this time?
The third book in this project is a geographical slicing of the story; ours is a vast republic of massive diversity, and the Constitution looks a little different in different states and regions. I try to show all of that that through 12 stories … each of which says something general about the United States Constitution but does so through the window of a particular state. It discusses a person or an idea or a case or an event particularly associated with that region that also casts light, more generally, on our Constitutional project.
So how did what you call “brute geography” influence the way we understand the Constitution today?
The very breadth of the American landmass and its distance from the old world were huge elements in the American founding and in the Civil War experience. The idea of creating an indivisible union in the 1780s, the idea of forming a more perfect union, was an idea powerfully influenced by these two geographic factors: a wide moat between the Old World and the New World (known as the Atlantic Ocean) would be able to protect Americans from Old World tyranny in the same way the English Channel protected Britain from much of the militarism of the European Continent…
But in 1787, as Americans looked around the world, they saw that Britain was free, and Britain was free because England and Scotland had merged, had formed an indivisible, perfect union that would protect liberty because they had gotten rid of land borders on the island and only needed a navy to protect themselves. That worked for England and that would work for America even better, because we’d have an English Channel times 50.
This will become manifest destiny and the Monroe Doctrine; we’ll control our hemisphere and we’ll be protected from Europe … Our Constitution largely succeeds because there’s no major standing army in peacetime for most of American history, and that fact is created by some brute geographic realities.
I’m speaking to you now right around the 150th anniversary of Lincoln’s assassination. He looms very large in your book; you describe him in some ways as almost prophetic. What made Lincoln’s understanding of the country and the Constitution so profound?
We live in Lincoln’s house. The Framers’ house was divided against itself; and, because of slavery, it fell. That failure is called the Civil War, and Lincoln rebuilt [the country] on a solid anti-slavery foundation, a foundation that would be strengthened after his death by the ratification of the Thirteenth Amendment (which abolished slavery everywhere, irrevocably), the Fourteenth Amendment (which promised racial equality) and the Fifteenth Amendment (which promised equal voting rights).
I begin the book with Lincoln because he transformed the Union. He saved it and transformed it and … his story was very much influenced by, literally, where he came from. He has a vision of the Constitution that’s very much influenced by Illinois, in particular, and by the Midwest more generally. He comes from a part of the country that was the Northwest Territory, that was always free soil even before the Constitution, and he has a very free-soil vision.
How so?
The language of the 13th Amendment is borrowed, word-for-word, from the language of the Northwest Ordinance. Lincoln thinks that the nation created the states, which, of course, Robert E. Lee … could never buy into. Robert E. Lee would say that the states created the Union; but the Midwest [perspective] would say … before Illinois was a state, it was a territory; the Union created these new states out of nothing. That’s a very Midwestern perspective on the Constitution.
Lincoln is, far and away, the most important constitutional decision-maker of the last two centuries; and arguably the most important constitutional decision-maker and interpreter ever.
But Lincoln was never a judge nor a constitutional scholar. He was a politician.
Most people are taught in high school that the most important constitutional decision is Marbury v. Madison, but that’s not even the most important constitutional decision of 1803. The Louisiana Purchase was far more important than Marbury v. Madison, because it doubled the landmass of America and made sure that the country would survive. When you understand that, you understand that many important constitutional decisions are made not by judges but by presidents.
The two most important constitutional decisions ever are Lincoln’s decision to resist [the South’s] unilateral secession, and Lincoln’s decision to issue the Emancipation Proclamation, which would lead to an end of slavery — that is transformative, and Lincoln made those decisions unilaterally as president. Had these issues reached the U.S. Supreme Court, controlled as it was [during Lincoln’s time] by Roger Taney, a fierce opponent of Lincoln, the Court might very well have tried to invalidate Lincoln’s projects.
We live in a Constitution utterly transformed by the 13th, 14th, and 15th amendments, and we would have none of those but for Lincoln.
Lincoln aside, though, you also argue that geography has played a big role in the Supreme Court — which, of course, is supposed to be the chief interpreter of the Constitution. How did geography influence the Court’s history?
Let’s take the most infamous judicial ruling of all time, the Dred Scott decision of 1857. It emerges from a Supreme Court that’s profoundly malapportioned: five of the nine justices on the Dred Scott court come from the slave-holding South, even though only a third of the population lives in that region.
Part of that is because entire antebellum system is skewed towards the South because of the three-fifths clause, which gives slave states extra clout in the House of Representatives and therefore the Electoral College. Presidents are picking justices, and the presidency tilts towards the South because of the three-fifths clause; almost all your early presidents are either slave-holding Southerners or “Northern men of Southern sympathies” — that is, pro-slavery Northerners.
If we view the Constitution and American history with more of a focus on the role played by geography, what are some the implications for U.S. politics today and in the near-future?
One of the things I’m trying to tell you in this book is how we can see presidential elections and our political polarization in new ways if we’re attentive to states and regions.
Our parties are polarized geographically; that this is not the first time that’s so (early on, it was the South against the North; Jefferson against Adams). The geographic alignment is remarkably similar to the geographic alignment in Lincoln’s time with this interesting twist: the Democrats have become the party of the North and the coasts and the Republicans have become the party of the former Confederacy. The parties have basically flipped, but it’s the same basic alignment…
One of the other big things I want you to see is how regions and states are hugely important in, for example, presidential politics. I talk about the significance in this book, in particular, of Ohio and Florida in the Electoral College and also of Texas. Is it a coincidence that Marco Rubio comes from Florida? That Jeb Bush is the governor of Florida who was born in Texas and whose father and brother had their political bases in Texas? That Rand Paul was born in Texas and his father ran for president from Texas? That Ted Cruz is from Texas? That Rick Perry is a former governor of Texas?
By: Elias Isquith, Salon, April 21, 2015
“A Time To Veto”: Exercising Authority Under The Constitution In Precisely The Way Our Founders Intended
President Obama is poised to reject legislation meant to force the approval of the Keystone XL tar sands pipeline, in what would be his third veto since taking office six years ago.
Pipeline proponents, naturally, are howling.
Obama, though, is exercising his veto authority under the Constitution in precisely the way our founders intended: as a check on Congressional overreach at odds with the good of the country.
The president is the only public official elected to represent all the American people. That confers upon the president, uniquely, an obligation to act on behalf of the entire country, not simply a collection of congressional districts or states, in a way that reflects the common will and advances the national interest.
The Constitution enshrines the presidential veto as a vital tool for fulfilling that role, and leaders throughout our history have found it essential. Presidents stretching back to George Washington have used the veto 2,563 times to reject legislation passed by both houses of Congress.
Ronald Reagan used his veto power 78 times — the most of any president in modern times. Obama, at the other end of the scale, has vetoed just two bills so far — fewer than any other president in 160 years.
Rarely is the veto more clearly in order as now.
Under long-established procedure, the question of whether to approve a project like a pipeline that would cross a U.S. border hangs on a single criteria: is the project in the national interest? It is the president’s job — and properly so — to make that determination.
In assessing whether the Keystone XL tar sands pipeline meets the criteria, Obama has put the U.S. State Department in the lead, with expertise added from an array of other government agencies that oversee commerce, transportation, energy, environment and other important areas central to the national interest.
The Republican-led House gave final congressional approval today to a bill meant to force approval of the tar sands pipeline in a way that would usurp presidential authority, short-circuit the deliberative process of informed evaluation already underway and supersede the president’s obligation to determine whether the project is good for the country.
Those are three good reasons to veto the bill.
There is, though, one more, and it goes to the heart of our system of checks and balances.
The tar sands pipeline is not a project designed to help this country. It is a plan to pipe some of the dirtiest oil on the planet — tar sands crude mined from Canada’s boreal forest using some of the most destructive industrial practices ever devised — through the breadbasket of America to Gulf coast refineries where most of the fuel will be shipped overseas.
It would create 35 permanent American jobs, according to the Canadian company that wants to build the pipeline. And the tar sands crude would generate 17 percent more of the carbon pollution that is driving climate change than conventional crude oil produces.
It would put our heartland at grave and needless risk of the kind of pipeline accidents we’ve seen nearly 6,000 times over just the past two decades. It would cross more than 1,000 rivers, streams and other waterways and pass within a mile of some 3,000 underground wells that supply irrigation and drinking water to communities and farms across Montana, South Dakota and Nebraska. And it would deepen our addiction to the fossil fuels of the past when we need to be investing in the clean energy options of the future.
That is not a project that serves our national interest. It is, instead, a project that’s about big profits for big oil, big payoffs for industry allies on Capitol Hill and big pollution for the rest of us.
If that’s what the Republican leadership in Congress wants to drop on the president’s desk, here’s what’s going to happen. The president is going to do what other presidents going back to George Washington have done more than 2,500 times: stand up for what’s best for all Americans, and veto this terrible bill.
By: Rhea Suh, The Blog, The Huffington Post, February 11, 2015
“The Right To Peaceably Assemble”: Antonio French Said It Best, ‘Our Civil Rights Don’t Stop At 9PM’
When Antonio French, the St. Louis Alderman who has given us an incredible first-hand account of what is happening in Ferguson through his twitter feed, was released from jail this morning, he told the media, “Our civil rights don’t stop at 9PM.” After Antonio being arrested last night for “unlawful assembly,” I felt compelled to share these thoughts;
To the men and women who are responsible for firing tear gas canisters. To the ones who pull the trigger of the guns that shoot rubber bullets. To those who are the drivers of armored vehicles. To the operators of the machine that makes loud noises. To those arresting politicians and members of the press. To SWAT Teams. Tactical Teams. Riot Police. Mayors. Police Chiefs. City Council Members. State Assembly Men and Women. State Senators. Governors. And More. I urge you to re-read the United States Constitution. Specifically the First Amendment. In case you weren’t given that at your training or your elementary school education, here is how it reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Our forefathers, hundreds of years ago, decided to write this amendment and place it at the top of the Bill of Rights. They made a decision that this amendment, the First Amendment, would be the most important amendment to the foundation of our nation’s principles. Throughout history, we have fought wars, carried out secret missions, economically embargoed other countries to protect the rights of citizens around the world to enjoy the same basic freedoms we have here in America. Now, we are blatantly ignoring those rights of our very own.
Over the past five days in Ferguson, Missouri, after the tragic killing of unarmed teenager, Mike Brown, the police and local government have shown a lack of understanding of this protection. Your job is to PROTECT those who have grievances with our government. To give them space to protest and petition their local elected leaders. The only thing you have been good at protecting thus far is the name of the officer who leveled bullets into Mike Brown’s body (but anonymous may have beat you at that too).
An overwhelming majority of the protesters in Ferguson have been peaceful. Yes, they are angry. Yes, they are pissed off. Yes, they are frustrated. But, they have been peaceful. Of course I recognize that there have been a few who have not. A few who looted, burned and threatened violence. And I would never, ever condone that behavior. But, to all those who have been gathering at the police station everyday, and to all those who have been at the QT from dawn to dawn, why antagonize them? Why shoot upon them? Why tear gas them? Why arrest them?
To the public officials of Ferguson, it is your job to listen to those who ELECTED you. And many of those who put you in office are now protesting outside the buildings that hold your power. If you continue to attempt to silence their protest, their anger will only grow and this could get even worse. The demands of the protesters are simple. Read them. Yet, the demands of this nation are even simpler. Respect the First Amendment. The Constitution is open 24 hours a day, seven days a week. It never takes a holiday or vacation. It never takes a day off. Unless you order a curfew or invoke martial law, the citizens of Ferguson have every right to peaceably assemble and to petition the Government for a redress of grievances at ANY hour of the day.
As for us, we will continue to show our solidarity with the fight for justice for another unarmed, black teenager killed in America. Our prayers are constantly with the family and friends of Mike Brown, and our hearts are with those keeping their hands up and telling the police officers not to shoot.
By: Michael Skolnik, Editor-In-Chief of GlobalGrind.com; The Huffington Post Blog, August 14, 2014
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