Is the Constitution dead?


Oh, the eternal crabbiness of the conservative, striving-to-be intellectual mind.

Time cover, Is God Dead?

Time cover, Is God Dead? -- April 8, 1966

At one of those hangouts for conservatives with more education and degrees than brains and sense — for example, friends and sympathizers with Francis “I am not an ID advocate” Beckwith — forgetting the trouble Time got into with the cover story asking “Is God dead?” I nearly twisted my ankle on a rhetorical hole that opened with this:

But more importantly, America has a problem: the Constitution is dead. Now what?

Assuming that statement to be a fact rather than a radical, perhaps hallucinatory claim, comments proceeded to denigrate the New Deal as completely unconstitutional and therefore worthy of complete rollback, in that future when these people take over and replace the Constitution.

Can you imagine what they would say if they stumbled into a leftist, pro-communist site making the same claims?

So, I questioned their judgment that the New Deal was unconstitutional, bad, and unjustified.   No nibbles on the invite to make a case they might be right, so I noted the thread earlier.

Those who think they are He-and-She-Who-Must-Be Obeyed* took great exception to my posts, said I had “one more chance.”

Skroom, you know?

Dear Readers:  Is the Constitution dead?  What evidence do you see?

Was the New Deal complete, unvarnished hoakum, or do you see value in any of the vestiges and legacy of the New Deal?

It could be an interesting discussion, if the Bathtub had any influence and a bunch of readers who would chime in.

Constitution in a casket

Is the U.S. Constitution dead? Libertarians, Conservatives, and other ne'er-get-wells can't tell. So they use it as cover for raucous behavior, What's Wrong With the World, May 5, 2011.

_____________

* Apologies to John Mortimer and Horace Rumpole.

14 Responses to Is the Constitution dead?

  1. Fake Herzog says:

    Ed,

    I appreciate the helpful links — I just got started on my legal search and those additional cases are very, very useful. My parents always thought I would have made a good lawyer (I was a debater in high-school) but I thought the world didn’t need another lawyer…

    Like

  2. Nick K says:

    Oh the Supreme Court can get it wrong. Dred Scott and the Citizens vs United case being two such examples.

    But from what is an actual “the law” position…there’s no reason to abide by the conservatives so called interpretation of the 10th amendment because the Supreme Court has never ruled that to be the proper interpretation. Meaning they can argue that intereptation all they want…but the country is under no legal obligation to obey it.

    And from a logic standpoint there’s no reason to obey that interpretation either…after all…not even the conservatives obey it. I should follow a supposed interpretation they themselves pay lip service to why?

    Like

  3. James Hanley says:

    Nick–I get your point about how the SC rules, but I think that line of argument has limits. If one’s interpretive approach is, “the Constitution means what the SC says,” then your point holds. But while some constitutional scholars do take that approach, many don’t, and argue that the Court can in fact get it wrong, in which case your argument doesn’t hold.

    Fake–Re: The Interstate Commerce Clause, I was referring to the general change that enabled the Court to start upholding the New Deal legislation, and did not intend to give the impression that clause was at the heart of the Social Security case. I was just tying the two issues together–my apology for not writing more clearly.

    Ed–You should have been a college prof; less fighting during school hours! I’m not sure about your Barron comments. What arguments are you referring to that applied the Bill of Rights to the states? Couldn’t have been in either the Convention or the Fed/Anti-fed debates, since it didn’t exist yet. And since the purpose of the Constitution was to create a stronger central government to tie the states together and deal primarily with external and interstate affairs, rather than affairs internal to the states, I think Barron was rightly decided. (Conversely, I stand with Hugo Black that the 14th Amendment should have been read as total incorporation of the Bill of Rights.)

    Alas, Lew Rockwell will not turn one into a Constitutional scholar.

    Heh! Just like David Barton will not turn one into a historian, Huckabee will not turn one into a theologian, and Rush Limbaugh will not turn one into a political philosopher!

    Like

  4. Nick K says:

    Fake, if you think social security is unconstitutional then go ahead..refuse it.

    Like

  5. Ed Darrell says:

    FakeHerzog said:

    Now you’ve turned me into a wannabe constitutional scholar. I started Googling and discovered that the key case is Helvering v. Davis. This guy provides a nice summary of the issues and makes a compelling argument that, sure enough, the constitutionality of Social Security is flimsy at best and rests on the infamous passage in Article I, Section 8 giving Congress the power to “To lay and collect Taxes…to pay the Debts and provide for the common Defence and general Welfare of the United States”. He also seems to think that the question of whether or not Social Security can be described as insurance is germane to the argument, but I don’t understand how that adds anything to the constitutionality of Congress’ powers under Article I, Section 8 — either those powers are enumerated and limited or they aren’t. What is sad about that Supreme Court decision is that the dissenting justices didn’t write a dissent! So it would be useful to go back and read Davis’ briefs which are probably the best original legal arguments around for why we should all consider Social Security unconstitutional. Or maybe it would be worthwhile to review the Circuit Court of Appeals decision that reversed the U.S. District Court for the District of Massachusetts, which originally upheld the Social Security tax?

    Alas, Lew Rockwell will not turn one into a Constitutional scholar. Instead you think that if you’ve found something that agrees with your biases, you are one, I fear.

    Rockwell on Social Security is like listening to Lenin on the virtues of unregulated stock markets. There’s a bias there that suggests there may be better sources to use, you know?

    Make sure you don’t ignore sites that are bound by law to be accurate in this history:
    http://www.ssa.gov/history/court.html

    There is more good history of Social Security in this pamphlet: http://www.ssa.gov/policy/docs/ssb/v50n1/v50n1p5.pdf

    You should note that there were three cases ruled on that day dealing with Social Security, not just Helvering. Together the three cases established that Social Security is, indeed, a constitutional exercise of power.

    One would also do well to check out the “annotations” to issues at the Cornell University Law School Library site, the Legal Information Institute (LII): Here’s the section on acceptable forms of taxes:
    http://caselaw.lp.findlaw.com/data/constitution/article01/26.html

    I’m sure an afternoon of Googling the subject will yield some interesting results…

    I suspect much of the best stuff is tied up in your local law library, and not available on-line; but generally, yes, you can get some good information with Google and an afternoon. You have to open your mind, and make sure to sharpen your search questions.

    Like

  6. Ed Darrell says:

    Wise words from the Hanleys, both of them.

    Maybe it’s old age, maybe its my general crankiness this week (my nose was broken as a result of two students fighting, and it’s produced some surprising twinges of philosophical musings — including a short temper for folderol of any sort), but I can’t figure any value in the discussions at the 10th Crusade (What’s Wrong With the World) precisely because I don’t see any serious consideration of the history of the Constitution. To Scott’s list, I would add Barron v. Baltimore in which the 1833 Court said the Bill of Rights did not constrain the states in any fashion, inexplicably (since the case was on a narrow part of the 5th Amendment) and contrary to the writings of the authors and the convention, and both the Federalist and Antifederalist positions. The Constitution may have been closer to death in In re Dred Scott, but it was revived, and it thrives today.

    I tire of the conservative claim that any beneficial action of government is “socialist,” even if the action is propping up the great institutions of capitalism at the expense of the people (as anti-socialist as we are likely to see), and I tire of the conservatives’ claims that the New Deal was somehow inherently and obviously flawed, especially when they don’t know what the New Deal was or is, nor can they point out any great flaws in specific programs (‘Social Security is unconstitutional, because it’s unconstitutional’).

    But I’m not smart enough, or vicious enough, to get most readers to see the point.

    To hell with bourbon, somebody pour the Scotch.

    Like

  7. Scott Hanley says:

    I think it’s silly to call the Constitution “dead,” since (as James points out) so much of it still quite operative. It’s also worth pointing out that it’s always been stretched, and parts of it ignored, as various periods in history.

    Examples: as they were still blowing on the Bill of Rights to dry the ink, the Federalists passed a Sedition Act that blatantly violated the First Amendment; “strict constructionist” Thomas Jefferson decided that anything not forbidden was allowed, if that’s what it took to purchase Louisiana. In the leadup to the Civil War, the South complained quite legitimately that the northern states had a constitutional obligation to return fugitive slaves and were ignoring their duty. Plessy v. Ferguson defined the 14th Amendment into nothingness. And Congress has, for the past several decades, tendered its war-making authority to the President.

    So it’s hard to find a Golden Age when the Constitution was strictly followed in every particular. And that’s why it’s silly to say the Constitution is dead when some parts of it are stretched or disrespected. That’s like saying our traffic system is broken because many of us drive 5 mph over the limit. It’s followed imperfectly, sometimes deliberately so, but that’s the historic norm.

    Like

  8. Nick K says:

    So, Fake, do you agree with certain Republicans when they say the Civil Rights act should never have been passed? And that Congress shouldn’t have acted against the Jim Crow laws?

    Oh and also let me know when you’re willing to say that having your interpretation of the 10th amendment means that corporations should not be getting subsidies (aka corporate welfare) from the government.

    Because I somehow am willing to bet that at some point you’re not going to find your avowed principle so palatable.

    Like

  9. Fake Herzog says:

    Mr. Hanley,

    A quibble and a point of agreement:

    1) my quibble is with this part of your comment: “the New Deal-era reinterpretations that changed the understanding of the Interstate Commerce Clause — as far as I can tell from reading that article about the Supreme Court case dealing with Social Security, the Commerce Clause was not at issue — instead the infamous phrase “To lay and collect Taxes…to pay the Debts and provide for the common Defence and general Welfare of the United States” was the hook for arguing the constitutionality of the program (and I think many federal programs to this day are constitutional only under this interpretation).

    Commerce clause law has its own set of problems, but as I said in an earlier post, I personally don’t have a problem linking the FDA to interstate commerce and can imagine even the federal highway system falling under this legal authority.

    2) My agreement is with your overall suggestion that the constitution isn’t dead — that is obviously rhetorical overkill (pun intended) and you are quite right to point out the ways in which we still do honor that document. For conservatives like me, I just wish we honored it much more strictly ;-)

    Like

  10. Nick K says:

    And has the US Supreme Court ruled those things in violation of the US Constitution? No, so ergo there is no need to pretend that its actually unconstitutional.

    Especially since Republicans and conservatives only give lip service to their supposed interpretation of that section of the US Constitution and the 10th amendment.

    But if any conservative truely believes that social security and medicare are unconstitutional…they are free to give up those all on their own.

    I even asked the conservative who I was arguing with on this subject if he was going to.

    Has anyone seen him say he would?

    Like

  11. James Hanley says:

    Whether or not one thinks the New Deal-era reinterpretations that changed the understanding of the Interstate Commerce Clause and of the legitimate scope of authority for the federal government is a good or bad thing, I think there can be no doubt that it worked a fundamental constitutional change. And since Article 1, section 8 of the Constitution provides the total constitutional scope of Congress’s authority, anything that’s not clearly envisionable within that Article and Section is inherently questionable as to its constitutionality.

    But…even if we accept the argument that Social Security (and Obamacare) are unconstitutional* that doesn’t even come close to answering the question of whether the Constitution is “dead.” The criticism of social programs like SS and Obamacare is that Congress has stretched and bulged it’s constitutional authority beyond acceptability (the Constitution has a bad hernia, perhaps), but that’s hardly enough to claim “death.”

    Let’s consider many other elements of the Constitution.
    –Presidents have not tried to serve more than two terms or refuse to leave office.
    –No Congressperson or Senator I know of has done so (except through an appropriate legal process when they suspected election fraud).
    –Presidents can still veto Congress.
    –Congress can still override vetos.
    –The President still has to seek Senate approval for treaties.
    –Free speech is still (most often) protected.
    And so on, and so on.

    I do think the Constitution is very ill–I think the growth of executive power is a danger to which not enough Americans are paying attention. But as long as the great majority of the Constitution’s provisions are being followed most of the time, to argue it’s death is a very bad diagnosis.

    ____________________________________________
    *I’m personally sympathetic to those arguments, but then I always run into the problem of whether the Constitution can actually have an inherent objective meaning, which I think is a non-sense idea. That then returns me to the question of whether anything could truly be unconstitutional, and so whether the Constitution places any actual bounds on government. And that leads me so to despair that I give up and pour another glass of bourbon.

    Like

  12. Fake Herzog says:

    Sorry about the two comments — I goofed up the first one with too much italics!

    I’m going to post about you over at my blog I’ve been having so much fun over here…

    Like

  13. Fake Herzog says:

    Ed,

    Here is a comment I just left over at “What’s Wrong with the World” concerning the constitutionality of Social Security (which is not the entire New Deal, but a big part):

    Now you’ve turned me into a wannabe constitutional scholar. I started Googling and discovered that the key case is Helvering v. Davis. This guy provides a nice summary of the issues and makes a compelling argument that, sure enough, the constitutionality of Social Security is flimsy at best and rests on the infamous passage in Article I, Section 8 giving Congress the power to “To lay and collect Taxes…to pay the Debts and provide for the common Defence and general Welfare of the United States”. He also seems to think that the question of whether or not Social Security can be described as insurance is germane to the argument, but I don’t understand how that adds anything to the constitutionality of Congress’ powers under Article I, Section 8 — either those powers are enumerated and limited or they aren’t. What is sad about that Supreme Court decision is that the dissenting justices didn’t write a dissent! So it would be useful to go back and read Davis’ briefs which are probably the best original legal arguments around for why we should all consider Social Security unconstitutional. Or maybe it would be worthwhile to review the Circuit Court of Appeals decision that reversed the U.S. District Court for the District of Massachusetts, which originally upheld the Social Security tax?

    I’m sure an afternoon of Googling the subject will yield some interesting results…

    Like

  14. Fake Herzog says:

    Ed,

    Here is a comment I just left over at “What’s Wrong with the World” concerning the constitutionality of Social Security (which is not the entire New Deal, but a big part):

    Now you’ve turned me into a wannabe constitutional scholar. I started Googling and discovered that the key case is Helvering v. Davis. This guy provides a nice summary of the issues and makes a compelling argument that, sure enough, the constitutionality of Social Security is flimsy at best and rests on the infamous passage in Article I, Section 8 giving Congress the power to “To lay and collect Taxes…to pay the Debts and provide for the common Defence and general Welfare of the United States”. He also seems to think that the question of whether or not Social Security can be described as insurance is germane to the argument, but I don’t understand how that adds anything to the constitutionality of Congress’ powers under Article I, Section 8 — either those powers are enumerated and limited or they aren’t. What is sad about that Supreme Court decision is that the dissenting justices didn’t write a dissent! So it would be useful to go back and read Davis’ briefs which are probably the best original legal arguments around for why we should all consider Social Security unconstitutional. Or maybe it would be worthwhile to review the Circuit Court of Appeals decision that reversed the U.S. District Court for the District of Massachusetts, which originally upheld the Social Security tax?

    I’m sure an afternoon of Googling the subject will yield some interesting results…

    Like

Please play nice in the Bathtub -- splash no soap in anyone's eyes. While your e-mail will not show with comments, note that it is our policy not to allow false e-mail addresses. Comments with non-working e-mail addresses may be deleted.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: