Sunday, June 26, 2011

GESSING'S REACTIONARY FEDERALISM: MISREADING THE CONSTITUTION

[NOTE: My blog this week is much longer than my usual; it an 1800-word essay addressing a recent argument by the Executive Director of The Rio Grande Foundation, a state-based think tank representing "conservative" political and business economic interests. It is not a cutting edge argument; instead, it is an off-the-shelf argument. But its usefulness from my perspective is that succinctly states the major points of the conventional argument being advanced by many. My points in rebuttal are also not cutting edge; they simply make the conventional case against what I take to be a bizarre position intended to advance special interests. This blog in rebuttal appeared last week in Heath Haussamen's NMPolitics.net, a site well worth a daily visit.]


Fifty years ago, in A History of the Modern World, then the standard for introductory college modern history courses, R. R. Palmer used a striking analogy to explain the Catholic Church’s reaction to the Protestant idea of an individual’s right to read the Bible, interpret it for himself, and live by his interpretation, without regard to the Catholic Church. He invited readers to imagine the American people’s reaction to the idea of an individual’s right to read the Constitution, interpret it for himself, and live by his interpretation, without regard to the Supreme Court. He assumed that Americans would be horrified and thus would understand the Catholic Church’s reaction.

What Palmer offered as a theoretical possibility has become a practical reality. I was never bothered that, from the beginning, Americans have argued about the meaning of its foundational documents and court interpretations. For, with few exceptions—the issue of slavery being one of them—generations of Americans have accepted their legal answers to legal questions. The consensus has enabled America to move forward, although a few fringe groups have continued to inveigh against this or that amendment or ruling. Occasionally, the court does reverse itself, as it did when, in Brown versus Board of Education of Topeka (1954), it overruled Plessy versus Ferguson (1896).

But I find myself bothered by a radical shift in the nature of the discussions of this foundational document. Previously, discussions have involved not only the Constitution itself, but also its historical context and court interpretations. Originalists believe that it had a first and a final meaning defined when written and ratified; they believe that the work of the Supreme Court is to apply that original intent to later cases. Others believe that it had a first meaning which, in its provisions for amendment and interpretation, denied a final meaning; they believe that the Court’s work is to apply meanings which reflect an evolving understanding of them and changing circumstances to later cases.

The division is absolute; one must take sides, not pick and choose lest one commit the fallacy of special pleading. I accept the latter, prevalent, and traditional view; indeed, I can make no sense of originalism. Theoretically, later readers of an earlier document can never be sure to accurately and comprehensively understand its original meaning. Practically, the large majority of Americans reject original provisions in the Constitution. One case in point: originalism accepts the Constitutional provision for slaves, which explicitly includes them in the census but tacitly excludes them from the franchise. Another: it accepts the Constitutional silence excluding women from the franchise and rejects the Nineteenth Amendment. These cases show originalism to be inescapably racist and sexist, as the drafters of the Constitution themselves likely were. Originalism cannot make adjustments in such cases without undermining its basic principles and endorsing Constitutional evolutionism. (One irony: many of those who have insisted on a respect for precedent and opposed judicial activism but have become originalists are advocating aggressive judicial activism in overturning most precedents of settled law.)

The shift is that Republicans, Tea Partiers, and other reactionaries read the Constitution in ways distorted by their political convictions, partisan criticism of current laws, or special interests. They may claim to be originalists, but they are really contortionists. They offer ideological interpretations retrojecting their desires into the Constitution and producing distorted interpretations which serve special moral or religious, or economic, interests. Moral or religious zealots are sincere in supporting such interpretations as the means justifying their ends. Economic self-servers are cynical in supporting them as a means glossing their greed with seeming Constitutional sanction.

I have glancingly addressed issues associated with the Constitution in other columns and blogs, but I directly address Paul Gessing’s “Federalism is key to America’s future” (24 May on this blog) because it is a local example of interpretations of the Constitution tailored to serve special interests. Gessing is the Executive Director of the Rio Grande Foundation, which is largely funded by oil and gas industries. These and other large corporations prefer state governments to have more, the federal government to have less, power because they can exert more influence on the former than on the latter. His first four paragraphs on federalism, most of which I quote, should be read in this light:

…Federalism, at least as conceived by the Founding Fathers in the Constitution, meant that the central government in Washington had a few, strictly-limited powers, but that an overwhelming majority of what was to be done was to be left to the states and people.

The belief that Washington’s powers were few and limited was so important to the founders that two separate amendments essentially re-stated this. The 10th amendment clarifies the issue, simply stating, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

To say that we have strayed far from this concept over the past 225 years or so would be an understatement. Federal policies now dictate state actions in education, health care, environmental policy, and a wide variety of other regulatory powers (to name just a few).

None of the aforementioned policy areas were named in the Constitution and, given the strict limits placed on federal activities, it seems worthwhile to at least discuss whether Washington has a role in these policy areas at all. But we have obviously crossed that bridge in the courts and Congress, and now we have a $14 trillion federal debt to show for it.

The first thing to say is that no connection whatsoever exists between the size of the federal deficit and government policies claimed to be Constitutionally improper. At any time, the federal government could have adopted tax or spending policies which would have prevented or eliminated any deficit. In fact, the Clinton administration did exactly so; had its policies been continued, they would have eliminated the deficit by 2010.

The second thing to say is that no credence whatsoever attaches to a claim that “we”—millions of Americans, thousands of elected federal officials, and hundreds of federal judges—have “strayed far from this concept” of limited federal powers. Democracy can make mistakes, but it is rather audacious, if not arrogant, for anyone to imply that everyone else has been wrong about everything important for over two centuries.

In raising these two non-constitutional issues, Gessing reveals a reactionary’s discontent with things as they are. In purporting to offer a federalism for the future, he actually offers a tendentious redefinition of it based on four common fallacies of reactionary Constitutional interpretation—to which I now turn.

One, Gessing reads the Constitution without regard to its historical context. A significant part of that context is its predecessor document, the Articles of Confederation (1781), which, as its name implies, defined the American polity as a loose association of states. The failures of that political arrangement were its inabilities to deal with matters of foreign policy and of domestic relations within and among the states. Political leaders recognized the need for a strong central government which could provide a unified approach to relations with other countries and a government capable of ensuring stable intra- and inter-state relationships and of regulating interstate trade. They convened the Constitutional Convention to that end and created the Constitution articulating it.

Two, Gessing reads the Constitution selectively, to cite the provisions which serve his point and to skirt the others. He ignores the Preamble, which states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” He avoids the first purpose for the Constitution: “to form a more perfect Union,” not a more perfect confederation. This phrase implies predominant powers for the federal government in its preference for national unity over state multiplicity.

Three, Gessing reads the Constitution perversely, with a “reverse rhetoric”; what comes first counts for less than what comes last. The Constitution ratified in 1788 specifies the three branches of the federal government and their powers. The Bill of Rights, the first ten amendments, ratified in 1791, places some restrictions on the government largely in favor of individual rights; the Tenth Amendment reserves to the states whatever powers the Constitution does not grant to the federal government or deny to state governments. His strange argument makes this afterthought the foremost concern of the Founders in drafting the Constitution and the Bill of Rights. (He asserts that two other amendments limit federal power without naming them or later identifying them when asked to do so.) Those, like Gessing, who use this amendment as a standard to judge the constitutionality of federal legislation might appropriately be dubbed “Tenthers.”

Four, Gessing pretends that the general language of the Constitution precludes specific legislation reflecting its Preamble’s concerns. That the Constitution does not mention “education, health care, environmental policy, and a wide variety of other regulatory powers” does not imply that the federal government has no powers in these areas. (What makes these and other areas “regulatory” only? Why are his choices not cases of special pleading?) Obviously, a phrase of purpose like “promote the general Welfare” can be meaningful only if the government creates laws and agencies to serve this end.

Ironically, by paltering with language and logic in this way, Gessing undermines the rationale for federal government support of the special interests which contribute to his organization. For, if a phrase of purpose precludes specific federal powers in areas related to it, then the absence of a phrase of purpose also precludes specific federal powers in areas related to it. Ergo, according to his logic, if the Preamble says nothing about a Constitutional purpose to promote prosperity, the federal government has no powers of any kind to assist private interests, which constitute a large part of the economy—bye, bye, subsidies, tax benefits, waivers, exceptions, etc.

Of late, reactionaries have been urging distorted interpretations of the Constitution and its amendments as part of their more general effort to “take the country back.” This serviceable ambiguity means both of two things: taking it “back” from others and taking it “back” to a past. Which is to say, reactionaries want the country to go backward, not forward, into the future. They repudiate the modern world—its demographic diversity, its mixed economy, its sciences, its arts, among others—and propound flawed arguments to persuade the unhappy or the unwary that the Constitution sanctions a return to some Garden of Eden or Golden Age. These fictions are myths of the past, not maps for the future. For that, we need the federalism defined by the Constitution of traditional American consensus to help us move forward.

Saturday, June 11, 2011

A WORD ON ANTHONY WEINER

Lee Siegel, in Saturday’s "Daily Beast." articulated and augmented my response to the responses to Anthony Weiner’s sexting or whatever it was to women unknown to him. Almost everyone’s question is: what was he thinking? Almost everyone’s answer is: he should resign.

My questions and answers are different. What are these people thinking? What are Democrats thinking? What are Republicans thinking? Perhaps the question should be: are these people thinking? And what do the rest of us do about them—they are the majority—in light of the answers?

As a matter of decorum—wonderfully old-fashioned word; does anyone know today what it means?—Weiner’s messages or pictures leave much—indeed, just about everything—to be desired. Those who seek his resignation are objecting to what—public indecency? I do not want to believe that is the answer, but it must be the answer, because no one has demonstrated one scintilla of damage to anyone involved at either end of the sexting messages because of the sexting. Of course, the hue-and-cry about Weiner has damaged him and perhaps his wife and friends. But real harm otherwise—nada.

Where were all those who object to Weiner’s sexting—a manifestation of some self-damaging personal disorder, which deserves more sympathy than censure—in other recent cases? Where were they when they learned of David Vinter’s adultery and criminal solicitation of prostitutes? David is back in the Senate. Where were they when we learned of John Ensign’s adultery with a staffer and wife of another staffer, then a criminal family payout to hush the matter up, then his office’s criminal efforts to secure work for the staffer’s husband? John had over a year in the Senate and resigned only to avoid a Senate Ethics Committee’s recommendation that he be expelled.

I could go on, as Lee Siegel does, but the point is clear: misbehavior in the virtual world now trumps misbehavior in the real world. I do not want to be excused—I started to write, excuse me—for saying that this preference for what is virtual to what is real is deranged, and far more seriously than Anthony Weiner’s vicarious titillations enabled by social networking.

A friend, a professor of English at Cornell University, believed in the 60s that Americans needed mass psychotherapy. I thought he was wrong then, but I am sure that he is right now.

I have just learned that Weiner is seeking therapy. Good for him. And good for his constituents for keeping their wits about them and supporting a man who has been a good representative for them. I wonder how well Weiner’s naysayers have served anyone but themselves and—speaking of indecency—are abusing a disturbed individual.

PRELIMINARY PROGNOSTICATIONS

Fewer than 18 months to go until the last ballots are cast in the 2012 election. The outcome is, of course, impossible to predict. In some states in which Republicans control both the executive and legislative branches, they are doing everything they can not only to redistrict seats to improve their chances of electing Republican Congressional representatives, but also to restrict the franchise among groups—seniors, youths, and minorities—most likely to vote Democratic. In fairness, when Democrats get the same chance, they redistrict to improve their chances, but they try to expand, not restrict, the franchise.

The flat-out truth, which the mainstream media refuses to step up to stating: Republicans are abandoning all but the pretense of adhering to democracy. They have long feared and now despair that demographics are against them and the doctrine of laissez-faire capitalism is inoperative. Fear and despair make them desperate that their only hopes for electoral success are efforts to target reductions in the franchise, to intimidate minority voters who are predominantly Democratic, to engage in dirty tricks, to spend obscene amounts of hidden special-interest money on candidates and advertising, and to throw truth and decency aside in national, state, and district campaigns of lies and smears.

If they succeed, Republicans will do in other states and in the federal government what they are trying to do, with some success, in Wisconsin, Ohio, and Indiana, among other states—namely, legislate Democrats out of meaningful participation in the political process. After running on the slogans of, say, jobs, as they did in 2010, they shall, if elected in majorities, implement their stealth agendas of economic benefits to their special-interest contributors and of moral, religious, and lifestyle restrictions on those who are not “real Americans.” (Attacks on women’s abortion rights will intensify, and attempts to reverse same-sex legislation and policy will increase.) In short, the run-up to and the election of 2012 will see a Republican effort at an electioneered coup ending democracy as we have known it.

Come we then to the candidates for the highest office in the land. On the Democratic side, there is, of course, only one (but, starting now, the party should hedge its bets): President Barack Obama. Frankly, the longer he serves in office, the less I understand what public-service reasons he had for seeking it in the first place (except to prove that he could seek and secure it). The more he makes fine speeches, the less he makes good sense in addressing the nation’s needs. At another time, I shall dissect by elaborating earlier criticisms his failures at home and abroad. But not just now. Suffice it so say, as they used to say, Obama is not only Bush-lite, but also Bush-bad. He may be moderate, but he is certainly Republican in his top-down approaches to the economic problems. So he fixed banks and big businesses, and forgot about jobs and homes. Given most of his competition at this time, I have to hope that he wins, but, if he loses, as the chances of his doing so improve with every dodge and dither, he will have earned his defeat.

Many are beginning to think that his re-election, far from being a done deal, is doubtful or doomed. I agree. An Obama campaign based on an it-could-have-been-worse theme is not going to beat an opponent’s campaign based on an I-can-do-better (much better) theme. Given an economy still muddling along, with high rates of unemployment and foreclosures, and high gas prices—not to mention a slide into the second dip of a double-dip recession—Americans may be willing to vote for any warm-blooded alternative, even defective candidates far worse than Bush or McCain, whom Obama followed or defeated.

So it is hard for me to get excited about a candidate whose chief recommendation for re-election is that he or she is not Barack Obama. The current candidates who advocate Tea Party or other hard-right positions offer nothing which can appeal to most Americans. Michelle Bachmann is a lot smarter than most pundits give her credit for being, but she may be too cutesy-clever by half. Sarah Palan is a lot dumber than they give her credit for being, but she has the “reality” show audience on her side. Both of these darlings of the Tea Party have taken positions from which they could never back down without triggering a vociferous and possibly enervating backlash. Neither of them seems to have passed high school history or high school civics—which makes their misunderstanding of America’s past a sign that they misunderstand America’s present, and misunderstand its Constitution to boot. By contrast, Newt Gingrich, who, as a professor of history, has presumed to be an intellectual and has coasted on that reputation for years, is slowly being exposed as an imposter and poseur.

Two other candidates on the hard right appealing to the Tea Party go in very different ways. Ron Paul is a smart guy with a clear and consistent libertarian ideology, which appeals to the streak of American individualism in us all, but which disqualifies a true believer from high office in a government which must meet the needs a society, whether conceived in democratic or capitalistic terms. Rick Santorum has proven so morally absolutist and callous that his former constituents want nothing to do with someone who prefers the purity of ideology—on abortion, no exception for the health of the mother—to the sanctity or wellbeing of adult life; and thus resistant to the very facts which he has demanded in debate and has received in disproof of his doctrine.

I give great discredit to panderers to the Tea Party like Tim Pawlenty, who has not only flip-flopped—he is not alone to do so—on abortion, but also advanced such a retrograde prescription for economic disaster that I expect him to encounter so much trouble from the less hard right in the party that he tries harder on the harder right of the party. He looks weak and is weak and will remain weak—not the kind of leadership which we need.

To his credit, Mitt Romney is smart enough to keep quiet, build a campaign coffer, and outwait and thus outlast the incandescent burn-outs who will titillate us for a few weeks at a time; and who is starting to move furtively toward the center. And, then, there is the sleeper: Jon Huntsman; keep an eye on that boy, he’s a smart one. (Sorry, Gary Johnson is comatose). So, on the Republican side, I prefer the two Mormon candidates for the Republican nomination. Perhaps Mormons are the country’s last best hope of moral rectitude and political moderation. Whether someone is waiting in the wings at this stage for this lot to falter remains to be seen. If it is Rick Perry, perhaps 49 states should secede from Texas!

In any event, Obama will have his hands full. His record on the matters which count—killing Osama bin Laden aside—is not one with great voter appeal. Why a smart guy could not learn the simple lesson—it’s the economy, stupid—I do not know. Of course, the appeal of voting for our first black (actually, bi-racial) male president (I do not forget fully black Shirley Chisholm) and the thrill of electing him are gone and cannot be repeated (you get to be first only once). Indeed, I worry that Obama has done so badly that, though he remains personally popular and likeable—I like him and Michelle, too—he may prompt suspicions, especially in those who struggled to overcome, or over-compensate for, their prejudices to vote for him, that he has not been up to the job because he is half black—dreadful racist thought. But we are thinking many dreadful thoughts just now about far more important and truly dreadful things.