Taking the Constitution Seriously
I’ve never paid much attention to Glenn Greenwald, but this post was enough to earn him a place in my feed reader:
[Ron Paul’s] argument is that the Constitution does not allow the Federal Government to do so, regardless of whether it’s desirable. If one wants the Federal Government to exercise specific powers which the Constitution prohibits, then the solution is to amend the Constitution, not to violate it because of the good results it produces.While there are certainly arguments to dispute Paul’s constitutional view (the Supreme Court, for instance, has had to reach to Congress’ Article I authority to “regulate Commerce . . . among the several States” in order to “justify” many of these Federal Government activities), the argument that there are “good results” from having the Federal Government do these things — or that there would be “bad results” if it didn’t — isn’t a coherent or responsive reply to Paul’s position.
It’s either constitutional or it isn’t for the Federal Government to exercise these powers, and it’s irrelevant (for this argument) whether there is a “need” for the Federal Government to do so (for exactly the same reason that it’s irrelevant whether unconstitutional and illegal warrantless eavesdropping is beneficial for guarding against Terrorist attacks). Regardless of one’s view of Paul’s specific Tenth Amendment theories, it is critical to emphasize — as a general matter — that “good results” is not a justification for having the Government violate the Constitution or any other law. That’s true when the violations are committed by the Bush administration or anyone else.
The general point that violating the constitution is wrong even if it leads to results we like is a position that hardly anyone in mainstream politics takes seriously. Of course, there are people on both the left and the right invoke the constitution in stump speeches (usually it’s mostly the party out of power), but both sides are frustratingly selective about which provisions they pay attention to. The left is (rightly) outraged that the Bush administration is trashing the Fourth Amendment, but they’re perfectly willing to countenance tortured readings of the First Amendment in the name of “campaign finance reform,” of the Second Amendment in the name of “gun control,” and of the Fifth Amendment in the name of “urban planning.” While some leftie legal scholars make a half-hearted attempt to make a constitutional argument, you find that the real argument boils down to “if we took those amendments seriously, the government wouldn’t be able to pursue policies we approve of.” This is sometimes framed in terms of “compelling state interests,” which is another way of saying the court thinks there’s some policy goal it thinks is more important than taking the words of the constitution seriously.
Of course as we saw in Raich, no one in mainstream politics, left or right, has any interest in taking the Tenth Amendment seriously. And frankly, I think we’re now at a point where there’s no serious chance of that changing in the foreseeable future. But it’s still refreshing to have someone pointing out that the constitution actually does say something intelligible about what the government should and shouldn’t be doing, and that much of what the federal government is currently doing is in flagrant breach of its requirements.
Just so “you” know, putting “things” you “don’t like” in “scare quotes” is a “juvenile tactic” that reveals your writing to be an “exercise” in “pedantic whining.”
— Freddie · Nov 6, 08:45 PM · #
Actually it’s protecting campaign contributions as speech that requires a tortured reading of the First Amendment. Your overall point is correct, I suppose.
— Brendan · Nov 6, 10:55 PM · #
One good reason not to take the strict view of the constitution is simple enough. Perhaps at some point in the past, we had the right attitude towards the constitution. Perhaps you think the last time that was so was 1936 or the early 1860s, or even 1803. Since that time, the received understanding of what the constitution allows or forbids has changed drastically as a result of court cases (I’m not considering the sort of extra-constitutional exercises of Roosevelt or Bush that were not authorized by the court). In short, the constitution has evolved in response to pressures imposed upon it, through a system which is mostly functional. If the constitution had not evolved through the courts, it would have evolved in some other way, presumably via amendments.
Now what could possibly justify reverting to the old understanding of the constitution (one under which only a tiny minority of current living Americans were born), given that it would have evolved anyway? Call this a sort of Burkean argument (such as I understand those): we have an established tradition which undergoes minor alterations from time to time. You propose scrapping it in favor of an ideal that is constructed out of pure reason or who knows what else.
This isn’t just saying that things would work shabbily if not for the current regime, it’s a larger point that you’re subverting the current order in favor of some poorly thought out ideal. That the ideal is perhaps embodied in a founding document of our nation doesn’t matter at all—so far as it diverges from what actually goes on, the ideal has no bearing on how the institutions of our nation have actually worked for quite a long time.
— Justin · Nov 7, 05:31 AM · #
I disagree about the scare quotes. They can be a very efficient way to convey meaning.
The scare quotes indicate you are using someone else’s terminology, but that you don’t agree with that terminology.
To indicates this without the scare quotes can require many more words and even with those words you may still not do a good job of conveying the same message.
— Daveg · Nov 7, 10:14 PM · #
I disagree with this statement: “it’s a larger point that you’re subverting the current order in favor of some poorly thought out ideal.”
The insertion of “poorly thought out” to describe the constitution and the corresponding implication that the “current order” is elevated for its sheer currentness is not logical. It was the ideal that underwent immense scrutiny and debate and subsequent approval, by and for the people. The current order may contain some necessary unforseen accomodations from the ideal, but it may just as easily consist of an amalgamation of rationalized selfishness.
— Jerry · Nov 8, 06:05 AM · #