January 1, 2011

Young Ezra Klein found himself in a strange predicament.

He'd said something utterly banal. It's what everyone around him has been saying for years. He must have expected that people would either ignore him or shrug him off as a man with no original or interesting ideas. And suddenly he's getting derided, called an idiot or worse. How can that happen?!

The banal thing was that reading the text of the Constitution doesn't get you to the answers to the difficult questions that arise today. The text must be interpreted, and political preferences will tend to pull people along toward the interpretation they want.

Don Surber says (via Instapundit):
Ezra Klein made the biggest mistake that can be made by a liberal — progressive — socialist — communist — no labelist — whatever the heck they call themselves on the 31st of the month.

He was being honest.

He does not believe in the Constitution.

He is cynical about it and he projects that same cynicism onto those who disagree with him.
Now, Klein walked right into that criticism. He stated the banality with an off-handed, wise-guy flippancy. That was red meat for the kind of conservative who likes to stress the constitutional text.

And now we see the value of this notion of reading the text out loud on the House floor. It sets up a trap for people like Klein to say things that let conservatives — like Don Surber — rail against the lefties.

Does that mean that I, like Klein, think reading the Constitution on the floor of the House is a "gimmick"?
In marketing language, a gimmick is a unique or quirky special feature that makes something "stand out"... [T]he special feature is typically thought to be of little relevance or use.... [A] gimmick is a special feature for the sake of having a special feature. It began... as a slang term for something that a con artist or magician had his assistant manipulate to make appearances different from reality.
In the musical "Gypsy," the experienced strippers advise young Gypsy Rose Lee that she has to get a gimmick:



I wouldn't use the word "gimmick" for what the GOP has proposed. But, like stripping, it is theatrical. It's a performance. A performance of belief. I think of the point in the church service when everyone reads the Apostles' Creed out loud. Obviously, many people say it who don't believe it, and you could keep silent and still believe it. But don't mock the ritual unless you're good at predicting the reaction and how you'll respond to that and you have some good reason for wanting the exchange.

Back to Surber:
For 8 years, the Left’s railed against Bush shredding the Constitution, a phrase which came to mean nothing....
See how much Surber is like Klein? He's accusing the other side of saying the words, but not really believing. But Surber has done better at picking his fight. He's got he hypocrisy angle: All those times you lefties acted all aghast at what Bush was doing? You must admit that was all theater, right?

ADDED:

157 comments:

Expat(ish) said...

I think you left off the latter half of Surber's comment about the left and the shredding of the constitution. I'm too lazy (alright, slightly hung over) to go find it, but he was pointing out that they aren't screaming about Gitmo and surveillance and predator strikes and all the other 'police state' issues.

Heck, my tame PhD/Librarian-science is no longer predicting imminent 1984 b/c of the Patriot Act.

So I believe his criticism is dead-on accurate in this case. Just like I thought criticisms of R's for spending like D's were accurate.

-XC

PS - Happy new year to you, and I hope the blog continues to get even better.

rick said...

I have reached the conclusion that I would be prefer 5th graders to read and interpret the constitution. There is no mystery with what it means.

The constitution was never meant to be a political document. It is now, as evidenced by the confirmation hearings. That's the real theater.

Harsh Pencil said...

I agree with Surber on this one. Young Ezra wasn't saying that interpreting the constitution is hard or requires study. He was basically saying that it's impossible. There are no right answers. The constitution means whatever the reader wants it to mean.

And that is how the left views it.

Ann Althouse said...

@XC What part of what I said do you disagree with? And why? Really, I don't understand your point. I've linked to Surber's piece, so you don't have to "go find it," and I'm not going to copy the whole thing. If you think there's some way I sold Surber short, say what it is.

Ann Althouse said...

@Harsh Pencil Ezra was saying that's what it is for the right too, but they are less willing to admit it and more into posing as if all the answers are right there in the text.

"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding."

John Marshall, McCulloch v. Maryland (1819)

The Constitution must be interpreted to be applied. If you think you have to pretend that isn't true, you have not thought deeply enough about the subject.

mesquito said...

Let's face it. Progressives find a the idea of a limited national government with discrete, ennumerated powers to be very, very frustrating. That's because they believe, with the fervor of tent-revival Baptists, in an unlimited national government with the power to do whatever the hell scratches their uncountable moral itches.

And all that whining about Bush, the Patriot Act, and the "unitary executive"? Cynical emoting.

Klein deserve all the abuse he's getting.

Hagar said...

The Ten Commandments are even older than the Constitution, and does not either furnish blueprints for constructing a nuclear device, but what part of "You shall not covet thy neighbor's wife" do you not understand?
It seems pretty straightforward to anyone except those who would like to find an excuse for coveting their neighbors' wives.

Ann Althouse said...

"There are no right answers."

Where does Klein say that? I hear him saying something more like: there are so many willful, dishonest human beings involved in the process of saying what the Constitution means and so much room for interpretation that you've got to be skeptical of everything.

The implied message is, I think: I'm going to stick with my political side and fight for my side and the interpretations I like, and I know that's what my opponents do.

He doesn't address the question: If you were a judge and you took the oath to be faithful to the Constitution, would you be able to analyzed the issues according to a legitimate methodology that was not influenced by politics and would you perform that duty?

He's not a judge. He's a politico. The interesting thing to me is that he doesn't have anything interesting to say about law, but he's sparked a big blabby discussion nonetheless.

mesquito said...

The banal thing was that reading the text of the Constitution doesn't get you to the answers to the difficult questions that arise today

Unless you are a Supreme Court Justice reading a Texas abortion statute. Or you are a federal judge reading a ballot proposition in California. Suddenly the Constitution, which contains not a single syllable about abortion or marriage, is literally exploding with meanings and implications about both.

Pogo said...

Ever since FDR, the Constitution has come to mean less and less about more and more.

Given the liberal march through the institutions, including law schools, I no longer believe judges can be faithful to the Constitution.

It's become the document of the Living Dead, a ventriloquist's dummy, mere clay for molding.

An oath honored only in the breach.

Ann Althouse said...

"Unless you are a Supreme Court Justice reading a Texas abortion statute. Or you are a federal judge reading a ballot proposition in California. Suddenly the Constitution, which contains not a single syllable about abortion or marriage, is literally exploding with meanings and implications about both."

They never purport to get it from merely reading the text.

mesquito said...

"They never purport to get it from merely reading the text."

Of course. Harry Blackmun gave a treatise on obstetrics.

Hagar said...

Supreme Court interpretations of the Constitution are not the Constitution, but merely Supreme Court interpretations of the Constitution that may be overturned by any later Supreme Court session.

That individual fallible Supreme Court Justices let their hearts desires run away with them, is not evidence that the Constitution itself is at fault.

Class factotum said...

in the church service when everyone reads the Apostles' Creed out loud

You have obviously not ever been to a Catholic mass. We Catholics know our creed by heart. We don't need no stinkin' book.

tim maguire said...

In a sense, Klein is right that everyone regards the constitution as a living document. There's no other way to apply it to daily reality except through interpretation.

The difference between the left and the right is that the left tends to do what they want and work backwards to a constitutional justification--they don't care about the constitution, but are forced to pretend to, and so they pretend to.

The right also interprets the constitution, but they believe they are being true to the intentions of the founders. That is, while they tend to believe the founders' intentions are in line with their own, it is because they believe they share a philosophy with the founders. It is a far less cynical approach.

The right believes in limited government, that there are some things the government cannot and should not do regardless of whose interests it is in. As a result, they provide a more reliable protection against totalitarianism than does the left. Liberals do not believe in limited government, they merely pay lip service because they have to.

So back to the beginning, yes, both sides interpret the constitution, but the left does it as part of a charade whereas the right is more honest.

Jer said...

Where in the Constitution does it give a Federal Judge even the Supreme Court the sole interpretive or any interpretive authority over the Constitution? If it doesn't, why didn't the framers put some mechanism in the GOVERNING DOCUMENT?

The truth is that they really don't, either Constitutionally or practically have that authority because they have no enforcement power without the agreement of the Executive Branch. If the Executive Branch chooses to enforce Constitutionality as ruled by the Courts it happens, if not it is moot. Because Congress has failed in its role of abiding by the Constitution, it has allowed the other two branches of Government to be the arbiters of Constitutionality. For this reason alone it is good that some of the rules on the Constitution being introduced into the House are a good idea, IMO

ricpic said...

Actually, stating that reading the text of the constitution doesn't get you to the answers to difficult questions isn't banal, it goes to the heart of the dispute between statists and the party of liberty. It is the statist, or if you prefer, establishment position, and has resulted in the obliteration of the modest republic we once were. It is banal only in the sense that it is a given to the in crowd. Radical is close reading of the text for answers.

New "Hussein" Ham said...

"And suddenly he's getting derided, called an idiot or worse."

He's not being "called an idiot." People are merely remarking at the astounding evidence he himself proffers that he is an idiot.

It's not merely that people are labeling him. It is that he actually is an idiot.

There's a difference.

It's one thing to call someone names. It's quite another for that person to reveal himself to be a complete fucking moron.

But it's worse, Ann.

Klein is a walking advertisement. He makes it harder for all other Jews to be accepted by polite society because people see him held up by the Washington Post as an example of modern American Jewry and Jewish thought.

And he's accepted by other Jews when he should be shunned by them.

edutcher said...

The Demos, and certainly the Lefties, have been at war with the Constitution since at least that old, unreconstructed Confederate, Woody Wilson, was in the White House, and, more probably, since Tilden lost to Hayes.

Ann Althouse said...

The Constitution must be interpreted to be applied. If you think you have to pretend that isn't true, you have not thought deeply enough about the subject.

I know I'm going to hate myself for starting this, but, as I recall my history, nobody seemed to think the Constitution needed interpretation until John Marshall thought the office of Chief Justice, as laid out in the Constitution, was grand enough for someone of his greatness.

edutcher said...

PS That should read, wasn't grand enough.

WV "consomm" A soup that hasn't gotten to the wedding night yet.

rick said...

Ezra the Younger"The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done."

Translation...The constitution is a worthless document. I'd like a modern one created ... say one developed by that noted constitutional scholar, Obama the Younger. In the interim, let's load the supreme/federal bench with 9th circuit types.

rhhardin said...

In logic, reductio ad absurdum disproves the premises.

In law, it extends their reach.

The founders were thinking more of logic.

Quayle said...

The taxpayers have been utterly ripped off to keep the major domestic and foreign bank shareholders and executives whole, our property is being seized under eminent domain for the whims of well connected elitists, our sovereign borders are unprotected from gangs and other illegals, our major states totter on bankruptcy, and our supreme court nominees blatantly lie to the Senate to get confirmed.

And young Ezra pronounces that he has spotted an important and intelligent insight about the constitution.

The camel is full in his belly but he thinks he's being erudite to opine on the variety of gnat caught in his throat.

ricpic said...

If the Pubbies read the text and then demonstrably fail to act in accordance with the text they will be hoist* on their own petard. So no, it better not be approached as a gimmick.


*Hoisted?

somefeller said...

The Constitution must be interpreted to be applied. If you think you have to pretend that isn't true, you have not thought deeply enough about the subject.

Exactly. Anyone who says otherwise is performing theater or is showing their ignorance of the topic.

Even strong textualists like Justice Scalia acknowledge that there's a lot more to Constitutional analysis than just reading the document alone and acting like the answers flow easily from that. ("Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be.... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.") In fact, doing so as a 21st Century American would violate the basic tenets of thoughtful conservative textualism, because it would involve analyzing the language of the Constitution in contemporary terms, rather than how those terms were used at the time of drafting. And the only way to figure out how to analyze how terms were used at the time of drafting is -- you guessed it -- by doing analysis of external sources and making interpretations.

Michael said...

I think the big reason why Klein is getting so much abuse is that he did what other lefties do all the time but not quite so obviously. The left is convinced that they are much more intelligent than their opponents. They are quoting that silly article about MRIs showing that conservative brains are different. Yet we continually see those brilliant lefties say the dumbest things. Obama says the Austrians speak Austrian, Biden doesn't know which article of the Constitution concerns the Legislative branch. Obama says that Social Security began as aid to widows and orphans.

Klein just did the same thing and with such an air of superiority. Plus, he is young and yet has a prestigious job at a major newspaper. It is so obvious that he is poorly educated. He made himself a target for parody although what he said is no dumber than things Obama and Biden have said. There is an element of schadenfreude in the ridicule but it is well deserved. We have put up with these undereducated twerps for so long, we should be able to have some fun once in a while.

PJ said...

I thought the "citation" proposal was more or less a direct response to the Administration's handling of the justification for the individual mandate, and I think the proposal, viewed in that light, makes perfect sense as something other than mere theater. The Admin touted the penalty for non-compliance with the mandate as "not a tax" in order to get the legislation passed, then relied on the taxing power while trying to defend the legislation in court. Isn't the purpose of the "citation" requirement precisely to prevent such shenanigans by forcing Congress to specify, at the critical political moment, the authority under which it purports to act, and then having the legislation judged by the courts as an exercise of that specific power?

garage mahal said...

The right can't even interpret [without lying] what Klein said in a two minute video clip about the Constitution, and I'm supposed to trust them to interpret the actual Constitution?

chickelit said...

The left is into theatrics? Who knew?

Frankly, that's Rich.

somefeller said...

We have put up with these undereducated twerps for so long, we should be able to have some fun once in a while.

It's sad that you only have fun once in awhile, and this is the only way you can have it. The ressentiment wing of the conservative movement, on full display.

dbp said...

I think tim maguire has it exactly right.

Further, sure--the constitution has to be interpreted. The problem is that when the interpretation seems to come to the opposite meaning as a plain understanding of the actual constitutional text, only a couple of conclusions occur to most people:

1. Judges are just making it up as they go. That is to say, starting from the desired conclusion and then working their way backwards to justify it. 2. The document is obsolete and really does not mean anything in this greatly changed world.

to my view, the constitution does mean something, is still relevant and any effort to appeal to it in the making (or unmaking) of laws is salutatory.

Dust Bunny Queen said...

Two completely opposite and polar world views.

Klein doesn't think the Constitution is worth a bucket of warm spit. It has no meaning, no relevance, no historical provenance to him, therefore it is worthless and should be altered to suit his everchanging world view.

Tea Party: the Constitution is a solid and forthright document that isn't really all that ambiguous. The Constitution has historical relevance and is still relevant to current society since the base concepts are timeless. Therefore there is no need to continually reinterpret the document and make it everchanging.

Klein: the government isn't constrianed in it's abilities and scope. The power to govern lies with the government and therefore it can do whatever it wants....old fogey Constitution be damned.

Tea Party: the government is limited and it is limited by the
Constitution. Government power comes from the people and is granted by the people and can be taken back from the government. The Constituion guarantees this in several of the original amendments, the 2nd in particular. Therefore: the Constitution is an important and vital document that stands between US and the likes of Klein.

Never the twain shall meet. There is never going to be any agreement or compromise from the Tea Party to Klein's view point. You either believe in the Constitution or and exploding out of control totalitarian government. There is no inbetween

DaveW said...

I think tim maquire gets pretty close to my take. I'd add that the right tends to think of the U.S. as an incredibly exceptional country that needs to be preserved and the left tends to think of the U.S. as deeply flawed needing to be fixed. The views of both sides on the constitution spread from those positions.

As far as forcing them to cite authority in every act I think it's a great idea and I don't think it a mere theatrical exercise at all. For the most part that would probably be pretty easy...for everyone except Ezra Klein I guess...but I'd really like the idea that they actually had to think about the constitution just a bit when they're imposing their hair-brained ideas on the rest of us.

former law student said...

Again, the linked audio of Leader Boehner's inability to distinguish the Constitution from the Declaration of Independence bothers no one, while the reasonable observations of a columnist is highly disturbing.

DaveW said...

Hah! DBQ said it better.

Hagar said...

edutcher,
The Left, led by Thomas Jefferson, were against the Constitution as soon as they found out what the Convention was up to, which didn't take long.

You are right about Marshall, but his arrogation of the right to interpret the Constitution stands, because, such as it is, most of the time it provides a useful brake on the radical tendencies of the other two branches, and the people has not yet seen fit to propose and ratify an Amendment over-riding his decisions in that regard.

former law student said...

Tea Party: the Constitution is a solid and forthright document that isn't really all that ambiguous.

Coffee just came out my nose, thanks. In 1927 Chief Justice Taft wrote that nothing in the 14th Amendment prevented the state of Mississippi from classifying the "Mongolian" Martha Lum as colored, and thus sending her to the colored school. A quarter century later, the Supreme Court flipped this around.

somefeller said...

And for an example of the ignorance I'm talking about, coupled with strawman arguments about what Ezra Klein supposedly thinks (and the rage one must feel in response to such thoughts!), all you have to do is look at Dust Bunny Queen's comment above. Which is no surprise.

Pogo said...

Under the last two administrations, we've lost the right to property and can now be forced to purchase a commercial product.

This sets the stage for a progressive tyranny over every conceivable aspect of our lives: what we can eat, what we can drive, what we can say and read and watch, even what work we do.

And why not?
No limits have been recognized by the left to governmental power.

Can anyone on the left draw a firm line beyond which the govt. will not go?
No.

Never enough.

somefeller said...

The Left, led by Thomas Jefferson, were against the Constitution as soon as they found out what the Convention was up to, which didn't take long.

Yeah, and they came up with the Bill of Rights to deal with such concerns. That tricksy Thomas Jefferson! He totally conned James Madison into coming up with that one. And he even got a lot of conservatives in later days to support his ideas regarding limited government!

chickelit said...

What kind of parents raise these little Kleins?
That's what needs fixing IMO.

AJ Lynch said...

Ezra Klein is a 26 year old poli-sci major who has a job with a bigtime Beltway newspaper. He has no other meaningful life or work experience. He has a track record [as Journolist founder] of secretly coordinating the news reports and topics chosen by about 100 other liberal writers. Therefore he has shown, without question, he is dishonest.

He does one thing and one thing only- he advocates consistently for centralized power applied to most everything we do.

So why do liberals see a need to defend him? He is expendable- there are hundreds more like him in the MSM. If liberals were shrewd, they'd abandon Klein and sacrifice him for his stupidity just like Trent Lott and others were cast off by Repubs.

deborah said...

Ezra on Coulter.

MayBee said...

Klein and others on the left are just afraid that the GOP led Congress and the Court are going to start undoing all the "good" FDR did.

They finally have an FDR-worshiping President in office, and they want to push forward. To do so, we must rely on precedent rather than "getting back" to the Constitution.

AJ Lynch said...

When unemployment, in the Beltway area, increases to 10% or so and property values drop, we will know the Tea Party has won the war against creeping fed control of everything.

When senaors and conressmen are scared shitless at voting Yea for another law or bill or regulation, we will know the Tea Party has won.

When Congress convenes to review and eliminate excessive laws and bills and regulations, we will know the Tea Party has won.

DaveW said...

LOL at deborah.

Well, I saw he is only 26, which I did not know, and I started feeling sorry for him a bit but if he wants to throw stones he better learn to duck.

I didn't have the opportunity to look that dumb when I was his age. At the time I was humping a rifle for the USMC. Keeps you busy and you tend to keep your mouth shut.

Bob_R said...

I guess a good demonstration of Althouse's point is that even the (callow, poorly thought out, poorly composed) words of Klein are open to a variety of interpretations. I think Althouse's interpretation is far too generous to Klein. It think the claim (which he seems to be walking back from) was that the constitution is a blank slate on which we can put any interpretation we want. As in.....

"To presume that people writing what they think the Constitution means -- or, in some cases, want to think it means -- at the bottom of every bill will change how they legislate doesn't demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe."

Hagar said...

somefeller,
A delegate broke his vow of confidentiality and sent a draft of the Constitution to Jefferson in Paris, and Jefferson wrote back that it appeared to him to be the most perfect instrument of tyranny he had ever seen.
Jefferson's ideals of limited government became inoperative as soon as he was elected president and had the power.
Witness the Louisiana Purchase and sending the Navy to make war in the Mediterranean.

chickelit said...

When unemployment, in the Beltway area, increases to 10% or so and property values drop, we will know the Tea Party has won the war against creeping fed control of everything.

That can't happen soon enough in my opinion. It would enable an influx from the fly-over representatives and their people who have to cope with living there part time as they go about their business.


wv = "untsch" Noun 21st Century. A clever variant on the German word "putsch" meaning to politically undo from the grassroots "underneath" level.

Conservatives 4 Better Dental Hygiene said...

Could you please re-do that post? I don't think it was disingenuous enough.

Reading the applicable parts of ye olde parchment with each bill sounds like just another thing to endlessly argue over and use as an excuse to get paid for getting nothing done (except enrich your own influence, of course).

Bob_R said...

In Klein's support for a blank slate theory of the Constitution he's very happy to paint over contradictory evidence.

“…The Constitution was written more than 223 years ago, [Got it in three tries, kid!] and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it. And they tend to disagree about it in ways that support their political ideology. I rarely meet a gun-lover who laments the Second Amendment’s clear limits on bearing firearms, or someone who believes in universal health care but thinks the proper interpretation of the Commerce Clause doesn’t leave room for such a policy…”

You'd think that with all of the bashing of Woodrow Wilson in the popular conservative press Klein wouldn't walk into such an obvious trap. Wilson famously lamented the "outdated" constitution that prevented a progressive expansion of the federal government. People were so offended by this that they elected him President. (How long ago was that Ezra? Let's see those advanced math skills at work again.) But I guess that was in another county, and besides the wench is dead.

edutcher said...

Hagar said...

edutcher,
The Left, led by Thomas Jefferson, were against the Constitution as soon as they found out what the Convention was up to, which didn't take long.

You are right about Marshall, but his arrogation of the right to interpret the Constitution stands, because, such as it is, most of the time it provides a useful brake on the radical tendencies of the other two branches, and the people has not yet seen fit to propose and ratify an Amendment over-riding his decisions in that regard.


I once heard judicial review defined as being a way for politicians to wish off on someone else the really hot political potatoes. That seems to be a more accurate assessment.

It also serves as a way for a relative minority to impose their will by infiltrating and dominating the appellate process.

PS Funny how the people who claim Mr "That government governs best which governs least" as one of their own believe in maximum instrusiveness of government and those crowing how he championed individual liberty don't believe in it if it stands in the way of the Lefty agenda.

PPS Jefferson missed the Convention and supported the Constitution as originally drafted.

Conservatives 4 Better Dental Hygiene said...

The implied message is, I think..

There you go inserting "penumbras" of "interpretation" into Klein's words - except without even the courtesy of a reason for your half-assed conclusion.

Of course, everything written in a document is crystal clear. We have no choice but to believe this because someone who believes the complete opposite when it comes to her interpretations of modern speech has declared it so when it comes to sanctified texts.

Pogo said...

So, Ritmo, where is the line drawn?
Where can't the state go?

SteveR said...

My opinion is pretty simple on this, Ezra Klein is not worth listening to. He's done nothing remarkable in his short life that merits my attention> That he would say something stupid is standard fare for a 26 year old with no real experience.

AJ Lynch said...

"Where can't the state go?"

Libruls tend to answer questions like yours with "crickets".

Conservatives 4 Better Dental Hygiene said...

Lines are drawn and redrawn all the time as technology allows and prevents government from going places it couldn't in the past. The Framers aren't supposed to guess on the exact details of how technology would change society - let alone how society itself would change; they weren't fortune tellers. So in the absence of certain conceptual details that they lacked then, we go by guiding principles. Principles fill in the gaps that are left by the ignorance of concrete, physical and social realities that people can't predict about the nature of life two hundred years out and more.

Also, the Constitution defines more than just the limits of government.

former law student said...

The Constitution was written more than 223 years ago, [Got it in three tries, kid!]

People should generally understand that "more than one hundred years ago" covers the case of "more than two hundred years ago." But what critics apparently fail to realize is that much Supreme Court jurisprudence relates to the Fourteenth Amendment, which was ratified a century and change ago.

Realize further that the 14th Amendment has its own originalist jurisprudence, set in the post-Civil War era.

Conservatives 4 Better Dental Hygiene said...

Get some principles, A.J., and it will help you with that white noise problem you seem to be experiencing.

former law student said...

Where can't the state go?


For one place, not into your bedroom, thanks to liberals.

Pogo said...

Really?
How do you explain all those no-knock raids, in which the state can invade your bedroom with impunity?

You didn't mean the actual bedroom though, did you?

(And Ritmo gives a typical evasion that can easily be read to mean "No limits at all.")

deborah said...

@Dave...note that that was 3 1/2 years ago. I think it's related to liberal fascism and the cult of youth and health...hee.

Conservatives 4 Better Dental Hygiene said...

For one place, not into your bedroom...

But I get the impression that a lot of conservatives believe that government regulation of your sex life is a necessary pre-condition for a proper moral order.

Some are more rational than that, but many more have no lines on the number of spheres in life that need to be spelled out in detail in order to know what to do next.

They seek a transcendent and timeless order, which is fine in itself. But in order for it to be timeless they must invent a level of detail and clarity in ancient ideas that didn't exist at the time.

Dust Bunny Queen said...

And for an example of the ignorance I'm talking about, coupled with strawman arguments about what Ezra Klein supposedly thinks (and the rage one must feel in response to such thoughts!), all you have to do is look at Dust Bunny Queen's comment above. Which is no surprise

I didn't state that those were my particular thoughts or tennents.


You want to ignore what others think? Pretend that there isn't a significant portion of the population that considers the Constitution something other than a 'living' document that can be 'interpreted' at the will of unelected elitist judges?

Go ahead. Pretend and refuse to even consider the other's positions. Guarantees that we become ever more fragmented and polarized as a country.

Conservatives 4 Better Dental Hygiene said...

It's only an evasion in the minds of people who lack principles, or who assume that ancient people lacked a concept of principles - as most conservatives do nowadays.

Pogo appears to also be in danger of justifying a complete lack of principles - which would explain his fear of the constitution being interpreted in unscrupulous ways.

Pogo said...

Ritmo evades the issue again.

Dust Bunny Queen said...
This comment has been removed by the author.
Conservatives 4 Better Dental Hygiene said...

that can easily be read...

There goes Pogo inserting a penumbra into my text. And you wonder why they are so afraid of a necessary process that rational people call "interpretation"...

Conservatives 4 Better Dental Hygiene said...

No, Pogo. You were just too ignorant to understand the answer.

Dust Bunny Queen said...

People should generally understand that "more than one hundred years ago" covers the case of "more than two hundred years ago."

That's right. Saber Tooth Tigers existed in Los Angeles more than 100 years ago and so did the Franciscan Friars. Same thing.

/facepalm


If you are trying to make an argument about relativity and time frames, you might want to be a bit more precise

Conservatives 4 Better Dental Hygiene said...
This comment has been removed by the author.
Conservatives 4 Better Dental Hygiene said...

FLS:

The cons believe that words alone can take the place of principles, and that concepts endanger the texts that refer to them.

AJ Lynch said...

Ritmo- you may have responded to Pogo's question but you did not answer his question re limits. Is that your idea of principles?

somefeller said...

I didn't state that those were my particular thoughts or tennents. You want to ignore what others think? Pretend that there isn't a significant portion of the population that considers the Constitution something other than a 'living' document that can be 'interpreted' at the will of unelected elitist judges?

Nonsense. You were the one who said that Klein doesn't think the Constitution is worth a bucket of warm spit. It has no meaning, no relevance, no historical provenance to him, therefore it is worthless and should be altered to suit his everchanging world view...There is never going to be any agreement or compromise from the Tea Party to Klein's view point. You either believe in the Constitution or and exploding out of control totalitarian government. There is no inbetween.

Your thoughts about where Klein is coming from are pretty clear, and are strawmen. While Klein's views on Constitutional law may not be what's best for the country (I suspect he'd be to my left on such issues), claiming he thinks the Constitution is worthless and he seeks a totalitarian state are strawmen you've created in your own brain to get mad at and argue against. And whatever else one may say about Klein and modern liberalism, calling it totalitarian (a term that is limited by thoughtful people to regimes like Stalin's Russia or Hitler's Germany - that term isn't even used for a lot of other dictatorial regimes - see neoconservative icon Jeanne Kirkpatrick on that point) says more about the person making the comment than the item being commented on. None of it good.

Conservatives 4 Better Dental Hygiene said...

My idea of principles is not one that discards abstract principles - throws its hands up in the air and says "Enough!" - just because a more technically precise moral instruction guide is what some minds require.

Conservatives 4 Better Dental Hygiene said...

And I could just as easily ask if Pogo and A.J. are opposed to principles altogether.

I think that people who lack principles, and therefore an understanding of how others' principles are defined, may have a difficult time defining limits. Sure.

Lem said...

Excellent post.

Gahrie said...

Also, the Constitution defines more than just the limits of government.


Really?

Pray tell, what else does it define? What hidden purpose does it serve?

Hagar said...

I don't think my bedroom is exempt; they are into every other room in my house.
This is a government that legislates about toilet flushes and the salt content on Mickey D burgers.
And they have passed a bill that requires every package of chicken breasts, or whatever, sold to have full nutritional labels on them, which will further make sure that all the food available for purchase will come from large factory farms with properly unionized labor forces, since family farms and small producers will not have the technical resources to provide labeling, and cannot afford the lobbyist and large law firms required to defend them against class-action lawsuits filed by fls and friends, who have had a chicken breast analyzed and got an "expert" opinion that it contained only 225 calories rather than 227.

Conservatives 4 Better Dental Hygiene said...

I dunno, maybe that whole librul invention about three branches - i.e. the "structure" of government. Which has nothing to do with the limits it places on government as regards the rights of the people.

Are you one of those conservatives with whom I'm supposed to be entrusting the proper reading and application of a text that Pogo assures me is clear as day? Because I'm not sure how you missed that part. Maybe we need to go back to our reciting lessons.

AJ Lynch said...

Does govt exceed its limits when it pokes its nose into lightbulbs, the type of home appliances we use, radio stations we tune to, groups we join, foods we eat, school vouchers, cars we drive, how high or low we set the temperature at home, or when it spends our reirement "contributions" on other things, cooks the books re govt pension liabilities?

rhhardin said...

If it is ridiculous to attack first principles, it is more ridiculous to defend them against these same attacks. I shall not defend them.

- Lautreamont

Quayle said...

"The Framers aren't supposed to guess on the exact details of how technology would change society - let alone how society itself would change;..."

Which is why they inserted a change control procedure into the constitution, and by the way it wasn't the Supreme Court.

Dust Bunny Queen said...

Nonsense. You were the one who said that Klein doesn't think the Constitution is worth a bucket of warm spit

Seriously? Have you even been to a Tea Party event? Do you have any idea about what they are thinking? No. And you are attempting to kill the messenger.

I've been to a couple of events and I must admit that while I agree with the Libertarian trend (small government, lower taxes, less intrusion into our lives and business, adherence to the original principles of the Constitution) of thinking of most of the atendees, there are a few really wacked out types that the Tea Party needs to keep a tight lid upon, lest the entire movement gets tarred with the same brush by the MSM.

However, just saying that you don't want to hear what they have to say....(la la la la...you have your hands over your ears and are chanting."can't hear you").....doesn't mean that people are not thinking and saying things you disagree with.

Like it or not.

Quayle said...

"For one place, not into your bedroom, thanks to liberals."

Yeah, except when liberal administrations want to do stuff like this, in which case the left believes that bedrooms should be fully accessible.

Gahrie said...

I dunno, maybe that whole librul invention about three branches - i.e. the "structure" of government.

You mean the invention of the separation of powers which was specifically designed to limit the power of government?

Hagar said...

Mandating fluorescent bulbs is already an obvious boondoggle.

"Sealed beam" headlights were invented in the 1930's, and was then a great improvement on the existing automobile lighting systems, so Congress mandated that all automobiles be equipped wirh "sealed beam" headlights and no other kinds.
Other countries, including the despised Europeans, just mandated minimum lighting efficiency standards, so that experimentation and development of alternative systems continued, and some were clearly superior to the "sealed beam" units.
This situation continued into the 1980's, when GM and Ford finally figured out that this legislation hurt them more than the "imports," and went to Congress and pleaded for Congress to please repeal it.

mariner said...

ricpic,

"Hoisted?"

"hoist WITH his own petard".

Conservatives 4 Better Dental Hygiene said...

I've got to laugh at the notion that the government has a right to regulate what goes on inside a woman's uterus and a gay man's anus, but not what kind of light bulbs are manufactured.

I guess that's just some people's way of having a government "close to the people": In your body but infinitely deferent to anything that you could possess outside of it.

Weird. Talk about over-reach. Given the context, when you invert things like that I think it's actually called a "reacharound".

mariner said...

"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." --Thomas Jefferson to William Johnson, 1823



"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823.

Gahrie said...

I've got to laugh at the notion that the government has a right to regulate what goes on inside a woman's uterus and a gay man's anus, but not what kind of light bulbs are manufactured.

It's not the Right that has given the federal government power over a woman's uterus and a gay man's anus...it is the Left. The Right's position is that the federal government doesn't have the right to regulate these things.

Conservatives 4 Better Dental Hygiene said...

Which is exactly what 4/9ths of the SCOTUS seem committed to doing.

Trooper York said...

Young Ezra Klein sounds very distinguished. Sort of like "Young Mr. Lincoln."

If Lincoln was a commie douchenozzle.

Conservatives 4 Better Dental Hygiene said...

It's not the Right that has given the federal government power over a woman's uterus and a gay man's anus...it is the Left.

It was the left wing of the Texas legislature that gave the state this right?

chr1 said...

Like Ann said, Klein's a politico (albeit with nearly no practical experience in gov't, business law etc.)

He's ridden a wave in the culture into a well-paying, highly visible gig. He's making a career out of supporting health-care reform because it lines up with his ideals.

Deep down, my guess is, he believes in ideals like justice, equality (perhaps even the dread social justice) that he's willing to risk cutting off a more free market approach, the growing of big bus/big gov't cronyism, reduced wealth for all in ironically pursuing more wealth for all.

He's also tied his horse pretty well to the current administration and Health_care Reform Act. That's risky.

Once this administration's gone (whenver that may be), he'll likely be employed by writing about a world in which he still wants other people to live, and with which he'll have more, but still very little, experience.

edutcher said...

Dust Bunny Queen said...

Nonsense. You were the one who said that Klein doesn't think the Constitution is worth a bucket of warm spit

Seriously? Have you even been to a Tea Party event? Do you have any idea about what they are thinking? No. And you are attempting to kill the messenger.


He's afraid to go. Lefties only feel safe with one another. If they mingled with us peons, we might pollute their Marxian purity.

PS Hey, Troop, how was the cruise?

Gahrie said...

It was the left wing of the Texas legislature that gave the state this right?


There are major differences in the powers, limits on power, functions and the creation of the States and the federal government.

Even you should be able to figure that out.

The Left deliberately gave the Federal government power over a woman's uterus and a gay man's anus in order to over rule the will of the people in the States.

paul a'barge said...

Althouse,
You're way, way too defensive on behalf of Ezra. You need to go back and read your responses here.

I don't think "righties" are saying that the Constitution does not need understanding for application. What they are saying is that the Constitution does not say what ever the Left wants it to say.

There is plain English (albeit old) and then there is the complete flight of fancy (see: Roe v Wade and Texas v Lawrence).

And if you can't differentiate between these two then you need to admit it, straight up.

For what it's worth, I think you can. But I think you've decided to enter the New Year on a pedantic note.

Good luck with that.

paul a'barge said...

Also, someone needs to make the point that what Ezra Klein was doing was a clear case of "punching up".

Which made it so enjoyable to watch as his "rightie" betters punched him down. Hard.

Please. Let's face facts. The only direction that "lefties" have to punch is up.

chickelit said...

a woman's uterus and a gay man's anus...

I thought this thread was about Ezra Klein and not Andrew Sullivan.

somefeller said...

Seriously? Have you even been to a Tea Party event? Do you have any idea about what they are thinking? No. And you are attempting to kill the messenger.

Do you have basic reading comprehension problems? The strawmen I'm referring to are the ones you came up with in your own statements regarding what Klein supposedly thinks. You are the one who said he thinks the Constitution is worthless and that he wants a totalitarian government, not him, and then you got yourself all riled up about that. And to the extent some Tea Party people may believe such things, I'm well aware of that, but acknowledging the existence of such ideas doesn't require me to agree with them or consider them worthwhile.

With respect to attending Tea Parties, no, I haven't attended any. I have better things to do with my time. I also have never eaten a shit sandwich, but I don't need to have that experience to have a basic idea of what it's all about.

Trooper York said...
This comment has been removed by the author.
somefeller said...

He's afraid to go. Lefties only feel safe with one another. If they mingled with us peons, we might pollute their Marxian purity.

I'm not much of a Lefty (I have enough knowledge of ideological camps to know what real hardcore Lefties support, and I'm not part of that crowd) and I hang out with all kinds of people, including conservatives. Fear of mixing with people of differing perspectives isn't part of my life. But you are correct, I wouldn't mingle with a peon like yourself (hey, you said "us peons"), though not for any reasons related to Marx, either Karl or Groucho. But you do get the opportunity to interact with me for brief periods in the Althouse comment boxes. Isn't the Internet a wonderful, democratizing tool, edutcher?

Trooper York said...

The cruise was great.

Wait to you hear the "Throw Mama-san from the Boat" story!

It's not quite as funny as Ezra Klein talking about the Contitution but then what is?

geoffrobinson said...

There is a difference between the two following statements:

1) It is sometimes hard to figure out the how to apply or interpret some sections of the Constitution.

2) It is hard to understand because it is old.

Klein was going for 2. I would also add that although 1 is true, you have a situation like with the Bible. Sometimes a document which is controlling like the Bible or Constitution (it puts limits on you) is something you don't like. So you make it purposely more confusing than it actually is.

Brad said...

If you're debating anything Ezra Klein said, you've got bigger issues than his comments

Conservatives 4 Better Dental Hygiene said...

The Left deliberately gave the Federal government power over a woman's uterus and a gay man's anus in order to over rule the will of the people in the States.

What power does the Federal government have over a woman's uterus and a gay man's anus?

Gahrie said...

What power does the Federal government have over a woman's uterus and a gay man's anus?


According to the Left, the power to decide how they may be used.

You just agree as to how they have decided so far.

What would you do if the Supreme Court issued a ruling tomorrow overturning the abortion and sodomy cases? You have already conceded that they have the right to rule in this area. A "right" granted by the government is not a "right", it is merely permission to engage in certain behaviors until the government changes its mind.

gurupreta said...

Wow. That's some fancy shootin' there.

orbicularioculi said...

I tend to agree with Professor Althouse "...The interesting thing to me is that he doesn't have anything interesting to say about law, but he's sparked a big blabby discussion nonetheless..."

Ezra Klein feels competent to have opinions about Constitutional Law without having bothered to study it or understand the History and commentary by Hamilton, Madison and Monroe in the Federalist Papers.

It would make a great deal of sense to INSIST that our children ALL study the Constitution, the Declaration of Independence and some of our other Founding Documents. If so, we would not be struggling to discuss Constitutional Ideas with ignoramuses.

Conservatives 4 Better Dental Hygiene said...

So refusing to allow a state a right to decide "how your body may be used" is the same as having "the power to decide how they may be used"?

Interesting attempt at coherence there.

By this logic, SCOTUS' refusal to prevent corporations from flooding the airwaves with ads by unrevealed donors during elections is the same thing as having power over their speech. It was, to your mind, a show of power over speech and not a concession to freedom of speech.

I guess the bill of rights are also displays of tyranny over the rights of the people.

To not legislate control over a certain area is to have power over it.

Welcome to the courtroom of Lewis Carrol, ladies and gentleman.

PackerBronco said...

@Harsh Pencil Ezra was saying that's what it is for the right too, but they are less willing to admit it and more into posing as if all the answers are right there in the text.
=====

No, @#&#! Speaking for this conservative I'll tell that I don't think all of the answers are in the text. In fact, I'd be a lot happier if judges ruled more often with: "the constitution is silent on this issue. Now go and do your job, legislature."

former law student said...

This is a government that legislates about toilet flushes and the salt content on Mickey D burgers.

Powerless to wield a salt shaker, conservatives prefer that their sodium intake be controlled by a Fortune 500 corporation, regardless of its effect on their health.

But I do applaud the desire of conservatives to privatize the nation's sewer systems. Good luck with that.

a bill that requires every package of chicken breasts... to have full nutritional labels on them... family farms and small producers will not have the technical resources to provide labeling

And just what bill would that be?

CosmicConservative said...

Nobody with a functioning brain fails to recognize that the Constitution cannot possibly cover every potential issue of law. Even the most staunch conservative realizes that there is some need to ascertain the framers' intent in some cases, and in some cases to admit that the framers themselves never anticipated the growth of the nation, the role we play today in the world and the headlong rush of technology.

For those reasons it is clear that there will be on many occasions a need for Supreme Court Justices to rule in the absence of a clear mandate from the founders.

What truly separates the modern liberal from the modern conservative is their bias in making those rulings.

Modern liberals tend to seek rulings that expand the role of government and to push the bounds of traditional morality.

Modern conservatives tend to seek rulings that constrain (not necessarily "reduce") the role of government and to restrain the rush to push the bounds of traditional morality.

In truth the founders were only clear on one of these legal axis, and that was in their desire to constrain the role of government as much as possible while still providing a means to promote the benefits of centralized government. On the "bounds of traditional morality" issue, the founders were not of one mind.

However, of the two modern positions, modern conservatives are clearly far more in line with the intentions of the founders and their interpretations are almost always more true to the words and spirit of the constitution.

Except when it comes to social morality issues. In those cases it's pretty much a wash imho. Liberals push too far, and conservatives hang on too much.

On particular issues though, even social morality issues, it is clear to me that the founders intended the states to have a much larger role in making such determinations. Making "Roe v. Wade" a national mandate seems clearly to me to violate the intent and spirit of the constitution. However, leaving abortion decisions up to each state seems just as clear to me to have been more in line with the founders' intentions.

So even though conservatives are not always in line with the founders in individual moral issues, they are usually correct when they claim the constitution does not provide a mandate, and therefore the court overreaches when they create one. In such cases a true conservative (not a "social conservative") should be willing to admit that abortion should be left to individual states and that the federal government has no more right to mandate laws against abortion than they have to mandate laws that legalize it.

Again, in the modern world, neither liberals nor conservatives get the founders' intentions right all the time, or even the great majority of the time. But conservatives still get it right far, far more often than liberals do.

former law student said...

If you are trying to make an argument about relativity and time frames, you might want to be a bit more precise

OK: 100 years and 223 years are comparable because they are the same order of magnitude. 100 years and 11,000 years (saber tooth tiger extinction) are two orders of magnitude different.

Dust Bunny Queen said...

And just what bill would that be?

Sentate Bill 510

Kiss your mom and pop organic gardening enterprises goodbye. ADIOS farmer's markets.

edutcher said...

somefeller said...

He's afraid to go. Lefties only feel safe with one another. If they mingled with us peons, we might pollute their Marxian purity.

I'm not much of a Lefty (I have enough knowledge of ideological camps to know what real hardcore Lefties support, and I'm not part of that crowd) and I hang out with all kinds of people, including conservatives. Fear of mixing with people of differing perspectives isn't part of my life. But you are correct, I wouldn't mingle with a peon like yourself (hey, you said "us peons"), though not for any reasons related to Marx, either Karl or Groucho. But you do get the opportunity to interact with me for brief periods in the Althouse comment boxes. Isn't the Internet a wonderful, democratizing tool, edutcher?


No, some phony folksy isn't a Lefty, he just shops for talking points at the same store as Trickling Down His Leg.

And he just loves how democratizing the 'Net is. It allows him to go out among all us Americans so we can interact with him. It must be such a refreshing change from the cloying atmosphere at Versailles.

former law student said...

Modern liberals tend to seek rulings that expand the role of government and to push the bounds of traditional morality.

Where does the Constitution give governments the power to regulate morality?

And why did Scalia go along with the majority in Raich? Surely the framers expressed no objection to smoking pot.

former law student said...

Kiss your mom and pop organic gardening enterprises goodbye. ADIOS farmer's markets.

Maybe you shouldn't get your information from scare sites. What you want is H.R.2751.ENR from thomas.loc.gov .

The object is to prevent our food from killing us. No requirement for nutritional information or labeling. Reduced regulations for small and very small business.

Frankly, getting food poisoning from a small organic farm's products is just as undesirable to me as getting food poisoning from jack in the box. YMMV.

richard mcenroe said...

A Republican Congressman reading the Constitution might be a gimmick.

A Democratic Congressman on the other hand, based on public statements by the likes of Conyers, et al, that they never even thought about the Constitution while ramming Obamacare down our throats, who read the Constitution would be a motherjumping miracle.

Lynne said...

Which sects recite the Apostle's Creed? I've been a churchgoer for most of my life and I never heard of it until now.

former law student said...

Lynne, the Nicene Creed is the one I'm familiar with, and (disregarding the filioque controversy) the most widespread.

Mr roT said...

What part of "Ezra Klein is an idiot" don't you understand?

Gahrie said...

So refusing to allow a state a right to decide "how your body may be used" is the same as having "the power to decide how they may be used"?


Yes, because the power to prevent something includes the power to allow something. So tomorrow, The USSC could return to the States the power to regulate abortion and sodomy, which means they aren't actually rights.

Marc Puckett said...

Cf Class factotum at 0954... And we Catholics ordinarily say the much longer! Nicene-Constantinopolitan Creed at Mass, too.

Duncan said...

Ann, do you go to church and say the AC? In the trad Anglican church I attend (and, indeed in TEC -- The Episcopal Church for those who haven't kept up with name changes) we say the Nicene Creed. It's a bit longer with more controversial stuff and was drafted in 325 Anno Domini at the Council of Nicea. Santa Clause attended btw.

The TECs say 'we believe' and trads say 'I believe'.

Think of such things as a form of 'patterning'. Like they do with autistic kids to wake them up.

I read the constitution aloud to my kid too. Helps.

DonSurber said...

I am flattered by your post.

PaulV said...

FLS, Ezra Klein realized that saying over 100 years, than 200 years make him look like an amateur, so he finally said over 223 years. Still looking stupid because he ignored amendments. Is that concept too diificult for you?

Conservatives 4 Better Dental Hygiene said...

the power to prevent something includes the power to allow something.

So, SCOTUS should revoke its power to say how states may legislate?

wv: madeashy

Fort said...

Reading the text is interpreting the text.

This is somewhat of a tautology, in that you cannot interpret a text without reading it.


What needs to happen is a little introspection, focusing on how one could possibly read a text without interpreting it. Ask yourself "What is reading? What is text, as opposed to a mark or stain? Who is Jeff Goldstein?" and you are off to a decent start.

Gahrie said...

So, SCOTUS should revoke its power to say how states may legislate?


With the exception of the expressed power given it in the Constitution, then yes.

What you on the Left forget/omit/never knew in the first place is that our federal system was designed to favor the States over the Federal government, not the other way around.

Gahrie said...

To make it clear...I believe that the Supreme Court should have declined to hear Both Roe and Texas on federalism grounds. Those areas of law are rightfully the domain of the States, not the Federal government.

Conservatives 4 Better Dental Hygiene said...

Thank you for enumerating your belief that the states have the right to run mini-tyrannies, with no recourse to the people through the federal government to address those despotic governors and legislatures. Thank you also for denying the people the right to be secure in their persons from unreasonable searches, seizures and other interference from the government.

Which other right over my body would you like to deprive me of, Gahrie? Would you care to use my skin as a lampshade? How about melting down some gold teeth for capital? As long as it's not the federal government declaring itself sovereign over one's own body, anything goes, I guess.

Gahrie said...

Thank you for enumerating your belief that the states have the right to run mini-tyrannies, with no recourse to the people through the federal government to address those despotic governors and legislatures.

Wow....what a sick twisted world you must live in.

First of all, I said no such thing. If a Constitutional Right was being violated by a State, then you could seek federal redress.

However, if federalism still worked as designed, when the State you were living in did something you disliked, you could simply move to a State you approved of. Or organize a campaign and change the law. Or run for office and change the law.

Hagar said...

Actually, the Yale professors who initiated "Griswold" should have been fined and possibly jailed for barratry, maintenance, and contempt of court, etc., and then there would not have been any "Roe" or Texas butty-fucking case.

Conservatives 4 Better Dental Hygiene said...

I'm touched that you think the ability to move from one state to another is a good reason for allowing different governors the right to poke about in someone's anus or abdomen while searching for "clues".

But I'm disappointed to hear that you feel a failure of federalism is preventing people from residing in the states they want to live in. I was not aware this was the case and suppose we should seek to have that problem resolved.

Thanks.

former law student said...

Is that concept too diificult for you?


Klein's a wuss and backpedalled. He should have acted like Leader Boehner and stood fast.

If you're gonna let nitwits get to you, you deserve what you get.

former law student said...

What you on the Left forget/omit/never knew in the first place is that our federal system was designed to favor the States over the Federal government

Right, and when Mississippi school boards decided that Chinese people are colored and thus could be sent to the colored schools, Taft, CJ, was right to say this did not violate the 14th Amendment.

Once the Federal government is put back in its place, order is restored once more. White schools are for white people only: Mongolians need not apply.

Conservatives 4 Better Dental Hygiene said...

White schools are for white people only: Mongolians need not apply.

But, but, FLS! Only if the states say so. They hold sovereignty over each and every one of us and our rights only hold at their discretion!

Individual sovereignty is a librul myth!

blake said...

'k, I think I've got this figured out: Because the Federal government was belatedly right once on racism (after being wrong for the preceding 170 years), there are no checks on its power.

Right, guys?

former law student said...

Because the Federal government was belatedly right once on racism (after being wrong for the preceding 170 years), there are no checks on its power.

The framers feared a tyrannical central government. The post-Civil War framers feared tyrannical state governments. Still later, the people feared tyrannical corporations. Preventing concentrations of power by providing checks and balances is the key.

And if you're still nostalgic for the five gallon flush, you could get one from a junkyard, or even have one fabricated. Retrofitting a modern toilet with a five gallon tank should work.

AJ Lynch said...

I guess the "concentration of power" that now us the most is that of the federal govt.

Conservatives 4 Better Dental Hygiene said...

I dunno, Blake. Do you want the government up your butt or out of it?

Some people here think that allowing a state government to poke around in your butt is more of a display of restraint by the feds than a violation of the 4th amendment by the state that decided to enact such despotism. But you'll have to make up your own mind on this one.

The retrogrades are arguing in favor of unlimited power by the states to violate the rights of the people. But the constitution don't allow for that, neither.

somefeller said...

Preventing concentrations of power by providing checks and balances is the key.

Exactly. While the federal government can be overbearing in many circumstances, it can also act as a guarantor of individual Constitutional rights and liberties that state and local governments infringe upon. And such rights and liberties need to be enforced via courts that -- wait for it -- interpret the Constitution, an act that involves something more than just looking at the text on the page without any context, historical insight or analysis of precedent.

Don said...

If Klein had just said the Constitution is a pile of crap and not worth fetishizing, that would have been one thing. But he and his fellow lefty travelers are as addicted to using it to pursue an agenda as are the right wingers. Frankly, both sides insult its framers with their doltish devotion. The Framers had balls enough to scrap one constitution (The Articles of Confederation) and adopt our current constitution all within a lifetime. The founding fathers' smarter older brothers who stayed put produced nations that have had the wherewithal to adopt newer and better constitutions all along since then. Quite frankly, you could put all of the current European constitutions in a hat and I'd take whichever one you pulled out over the dessicated document US pretends to live under now.

Gahrie said...

The retrogrades are arguing in favor of unlimited power by the states to violate the rights of the people.

Name them. You created that strawman and keep shuffling it out.

blake said...

In the beginning, the Federal government wasn't involved in sexual matters. Were the state governments intrusive? Sure. Now we've traded that for Federal AND State governments that are intrusive.

I welcome the removal of the governments from sexual matters. We don't have that now. We have it even less now with PPACA.

And even if it were complete on sexual matters, that's not enough.

And, FLS, tyranny of corporations? Really? Corporations only become tyrannical when they have government support.

Conservatives 4 Better Dental Hygiene said...

In the beginning, the Federal government wasn't involved in sexual matters. Were the state governments intrusive? Sure. Now we've traded that for Federal AND State governments that are intrusive.

There seems to be a lot of conflation here between government attempts to prohibit people from doing something and governments saying it's not their business to prohibit people from doing those things. It's hard to see why those approaches are equally tyrannical.

Most people would note the intrusion into saying what people can't do as a form of government intervention that impedes liberty and not the other way around, but I guess many cons (or at least Gahrie) see it differently. They are taking the strange and linguistically indefensible approach of labeling government intervention, by prohibiting what you can do, as a form of liberty, provided it occurs at the state level.

Declining to prohibit something is not the same thing as allowing its prohibition, nor are their effects on freedom equivalent; they are profoundly different. Strict constructionists should make a much better effort to note the difference between allowing the restriction of something and preventing the restriction of something. As it stands, I'm not getting the impression that they understand the difference between a positive and a negative declaration on our liberties. And when the rights of states and individuals conflict, the default presumption should be given to the individual as the sovereign, not the state in which he resides.

This is the most important libertarian argument/principle for federal union - when the federal government serves its legitimate role in preserving the rights of the individual against the despotism of a state in the union.

Corporations only become tyrannical when they have government support.

The ubiquitous activity of lobbying, and backing up those lobbying efforts with monies that help insure election prospects, assures them of that.

Conservatives 4 Better Dental Hygiene said...
This comment has been removed by the author.
Conservatives 4 Better Dental Hygiene said...

You created that strawman and keep shuffling it out.

Scalia himself, in Lawrence v. Texas, said that as long as there was a vague "moral" tradition of despotically restricting someone's rights, then a legislature could invoke it and enact it.

His colleagues reminded him, in reviewing (and overturning) the Bowers precedent, that the decision to recognize homosexuality as a widely condemned practice in Western culture was illegitimate, as the European Court of Human Rights had declared as much in 1981.

So these are the vagaries of the retro-cons in appealing to "morality" as a foundation for invoking proscriptions on our rights. It is the shadiest penumbra of all.

Well, maybe you think that because specific acts weren't mentioned, they can be prohibited by that state.

I err on the side of individual (not state) liberty and the reading of the relevant amendments that persuaded the majority of justices to do so as well.

States may serve as laboratories of political and social experimentation, but not to the extent that they become despotic safe-harbors for infringing individual rights.

QED

David Rogers said...

The fundamental problem w/ YEK is that he is a deconstructionist, and deconstructionism is a fundamentally illegitimate way of reading and *mis*understanding and *mis*representing documents and history that was invented by Derrida and post-WW2 Nazi sympathizers like Paul de Man, who intended to make all documents and history untrustworthy in order to mask their own history of untrustworthiness.

I leave it for others to comment on the irony and/or tragedy of a prominent American Jew being hoodwinked by WW2-era Nazi sympathizers.

Chase said...

Sarah Palin

Chase said...

Sean Hannity.


I'm just sayin'.

TosaGuy said...

Perhaps until the living arrangement questions can be answered by the Pentagon, the military can quarter some gay soldiers in YEK's home.

Not a shot at the DADT issue or insinuating anything against YEK, but rather, such an event could conceivably happen under YEK's thoughts on the Constitution where standards are washed away by the popular issue of the day.

Gahrie said...

as the European Court of Human Rights had declared as much in 1981.

Who gives a shit?

And if I was going to take moral guidance from someone, it sure as hell would be Europe.

Lynne said...

Lynne, the Nicene Creed is the one I'm familiar with, and (disregarding the filioque controversy) the most widespread.

Oh! Thanks, FLS. I've heard of the Nicene Creed (though I've never actually 'heard' it in a service, so to speak.)
That was a new one on me, and a bit confusing.

The Ghost said...

I would point out that the Supremes usually only work on cases where it is difficult to easily answer a laws constitutionality. There must be hundreds or thousands of cases of unconstitutional laws being struck down that never made it to the Supremes and each of those cases the constitution could be clearly read to be in conflict with the law.
Perfection is the enemy of good in this case. Of course some questions are not easily decided by a simple reading of the Constitution but that doesn't diminsh the far greater number of cases where the simple reading led to an unconstitutional law being struck down.