Dahlia Lithwick’s recent piece in Slate had me cringing almost immediately when she mashed this out from her keyboard:
the Constitution is always going to raise more questions than it answers and confound more readers than it comforts.
Frankly, I’m more dumbfounded by this statement than anything I’ve read in the crystal clear U.S. Constitution. The only thing confounding about the Constitution is that contemporary readers cannot reconcile how our current public policy and federal power both represent a substantial shift away from the original intent of the document.
That a product of an American law school can even fathom this confused view of the Constitution is troubling. Perhaps law schools should insist that their students take some remedial classes in American legal and political history as part of their JDs. After all, this is a question of compact theory and the enumerated powers of the federal government. Then again, overly creative lawyers are generally the problem regarding our public policy gone wild and increasing destruction of federalism, so I’m obviously the idiot here for expecting a lawyer, or a law school, to denounce the legal cash cow publicly.
And then there’s this:
It’s because the Constitution wasn’t written to reflect the views of any one American.
I’m not sure what the relevance of this statement is. It makes no difference whatsoever if the constitution was written to reflect the views of one, two, 17, or 3,000,000 Americans; the document simply states the basic powers given to the newly formed federal government. This isn’t complicated, unless you’re a lawyer for whom “complicated” = penumbras, emanations, & interpretations which, you guessed it… lead to favorable judgment$.
There’s more:
the folks who will be reading the Constitution aloud this week can’t read the parts permitting slavery or prohibiting cruel and unusual punishment using only their inside voices, while shouting their support for the 10th Amendment.
They can shout loudly all of the above because the 13th Amendment outlawed slavery and involuntary servitude (I honestly have no idea was the 8th Amendment reference is all about). The 10th Amendment is not automatically disqualified at a later time because the Articles did not expressly forbid slavery within the individual states.
The Constitution was written as a limited set of powers, both well defined and yes, ultimately malleable… via the amendment process, as illustrated by the example of the 13th Amendment. That these points, which are as obvious as a bowling ball dropped on one’s toe, are not acknowledged by Lithwick is quite perplexing. How the Constitution came to be is out there for all to be had; some just don’t bother because we are so far gone from the original intent that many people cannot fathom what really happened, nor does it serve them any purpose to acknowledge it.
The popular myth that the Constitution was left purposely vague is right up there with the existence of Santa Claus. True, the limited powers written into the document were almost immediately exceeded, hence the Virginia and Kentucky Resolutions, but the Constitution was promoted to the states for ratification in generally the same way the Tea Party promotes the document… that it was clear, limited, and would be strictly adhered to; this was the only way the thing could be agreed to by many states in the first place. I teach this each semester and my freshmen juco students seem to grasp it quite handily. The framers dealt in what they considered to be “truths”, not fleeting improvisational platitudes which would make the drafting a constitution moot in the first place.
Which part of Jefferson’s response to the Alien & Sedition Acts is not clear?:
1. Resolved, That the several states composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress. ~Thomas Jefferson, Kentucky Resolution, 1798
This was the original understanding of the Constitution. The bottom line is that the experiment in loose construction, which saw many great advances in civil rights, has gotten completely out of control and is running the risk of pile driving the United States straight into bankruptcy. Period. The Tea Party, while not only representing a peaceful, healthy expression of the 1st Amendment, is a necessary check on a federal behemoth that has gotten way out of control. That the Tea Party is derided in the manner it is by some of the mainstream media is absolutely juvenile.
Both parties are to blame for our current bloated federal government, but my question is: which party will be part of the solution? Which side of the political spectrum represents a way out of the mess, and which side wants to keep beer-bonging the “Ah screw it, just put it on the credit card” Kool-Aid? I wonder why both sides of the aisle cannot come to the conclusion that the federal government has bloated well beyond any reasonable level.
A general thought now seems to be that moving back toward stronger federalism would mean a reversion back to 100 years ago, when Jim Crow ruled the South, restrictive covenants in housing were okay, et cetera … What seems to be falling under the radar is that the amendments to the Constitution are as binding as the Articles themselves, as outlined specifically in Article V. Moreover, one may agree that much of the case law regarding constitutional issues is perfectly legitimate and still acknowledge that we’ve gotten away from the original intent of the Constitution itself. That’s what I’d like to see. Many of the gains in case law were obviously necessary, specifically regarding civil rights. However, when will these attacks on strict construction and the legitimate history of how the Constitution came to be cease? A move away from the partisan dumbing down of the issue is in order. Just tell it like it is. That’s how you build a consensus.
Tea Party 101 should be mandatory for all 1st year law and J school students: big government is best held at the state level, where the damage is limited to 1/50th of the nation instead of allowing our centralized bloatocracy to foist its wasteful agenda on the entire nation as a whole. Basic rights guaranteed by the Amendments of the Constitution can still be enforced in the absence of the huge, largely unaccountable, unconstitutional 4th branch of government… an administrative branch that has led us by the nose down a path of national insolvency over the better part of a century.
Give Pamela Anderson a new hairdo in 1991 and it is an acceptable improvement. Give her 18 breast augmentations, collagen injections, and botox, and she turns into a grotesque, puffy monstrosity. That’s where we are; yes, we are the dirigible-breasted, cartoon Pam of today instead of the perfectly attractive and engaging Miss Pamela Anderson of “Home Improvement” fame.
Just wait until the Supreme Court gets five or more hardcore activist right wingers on it; I’d guess Ms. Lithwick will then be raising her Gadsden flag higher than anybody, right along with the Tea Party.