Bruce P. Frohnen, at the University Bookman, points out how the recent SCOTUS Obergefel decision typifies the operation of modern American government outside the realm of law.
Can’t get the votes you need? Simply change the rules of the Senate. Lack sufficient support to ratify a treaty? Re-define it as an Executive Agreement. Can’t get Gay Marriage through the legislatures? Interpret some new “rights” out of the Constitution.
Limited government with defined powers is magically transformed into totally unlimited government, free to do anything the community of fashion strongly desires to do.
What made Justice Kennedy´s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct†policy on the nation.
The judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.
I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.
Christopher Taylor identifies the point we’ve reached in America’s relationship to its Constitution.
And so we reach the point at which I’ve given up the idea of ever getting back to the constitution today. In fact, I’ve come to the realization that there’s no point in appealing to the document as any kind of governing and restraining document because the government and people have simply abandoned it except as a fetish.
Recent supreme court decisions have simply negated the constitution entirely, building on decades of ignoring and twisting the document, inventing things not in it until its simply trash. And all of this happened because of well-meaning tiny little steps, any one of which the founding fathers would have been enraged at, but we sigh and shrug at today.
There is no rational basis for thinking that any government will reverse this. It simply is without precedent in human nature and history for a politician to voluntarily surrender their own power or a government to weaken its self. There is only one direction, one trend: toward tyranny.
The founders knew this. They did their best to lock in our freedom and protect this inevitable tendency of the state. It was so well done that the nation lasted more than a century with great, widespread liberties. That era is over, and only one future lies before us, barring some act of God.
The only question is what lies beyond that point, and how we get through it.
Sunstein, however, does adroitly read Epstein out of what he considers the qualified and legitimate body of Constitutional Law scholarship, identifying him instead as a covert member of an alternate “moral readings” school of constitutional argument, a school of thought pioneered (God help us!) by the egregious sophister Ronald Dworkin.
Epstein’s moral reading is all very nice, Sunstein condescendingly allows, but there are other readings. He moves rapidly to the favorite argument of the legal realist Oliver Wendell Holmes school of Nominalism: there is no consensus. The framers’ truths are not really self-evident, because non-classical-liberals, like Holmes and Sunstein, can simply decline to acknowledge them.
Finally, of course, Sunstein retires complacently to the conservative argument. The Classical Liberal Constitution was overturned once and for all during the New Deal. We now are bound by jurisprudential precedent going all the back to the Spring of 1937. 1787 to 1937 was a period of error which doesn’t count, but one must never presume to meddle with subsequent progressive rulings. The Bill of Rights is ambiguous, completely open to interpretation, and means whatever judges say it means. The decisions of post-New Deal courts are unalterable law.
Epstein did not write [a book steeped in the political thought of the late eighteenth century]. He is much closer to being an Anglo-American political theorist than an American constitutional historian. True, he did not produce his general theory out of thin air. What he calls “classical liberalism†certainly has some connection to the ideas of the great eighteenth-century liberal political theorists, including Locke and Montesquieu, and also to the thinking of America’s founding generation. But we have to be careful here. Epstein’s reading of the theorists and the Founders is not at all obvious or uncontroversial. There are other ways to read them. Many students of the liberal political tradition, such as Stephen Holmes, have raised serious questions about the supposedly libertarian nature of classical liberal theory. It is not at all clear that classical liberal theory, understood in historical terms, is what Epstein thinks it is.
For lawyers and judges, the broader point is that the general theory cannot be found in the Constitution itself. We might doubt, moreover, that as Epstein elaborates it, it would have commanded any kind of eighteenth-century consensus. Without detailed historical support, it remains unclear what it means to say that Epstein’s preferred general theory “animates†the text.
Ronald Dworkin, one of the greatest constitutional thinkers of our time, does not appear in Epstein’s book, but in my view Epstein is playing Dworkin’s game. Dworkin argued in favor of “moral readings†of the Constitution. In his account, the act of interpretation requires judges both to “fit†and to “justify†the Constitution. The requirement of fit imposes a duty of fidelity; judges cannot ignore the text (or other relevant materials). If they do, they are not engaged in interpretation at all. The requirement of justification means that judges should put the Constitution in its most attractive light, by identifying the moral principle or theory that makes the best sense of it. Dworkin urges that judges should be moral readers in the sense that they ought to be generating a morally appealing interpretation of the constitutional text. Inevitably, what counts as a morally appealing interpretation is a product of the active judgments of the interpreter.
Epstein is a moral reader. He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation. Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one. Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires. Of course other people think differently. There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of “restoring†the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.
Like other moral readings, Epstein’s reading has to be evaluated in terms of both fit and justification. Does it fit with the original document? In some ways it does, but to make a full evaluation we would have to go provision-by-provision, and some of his judgments fit better than others. Most judges want their decisions to fit with precedent as well. Epstein is fully aware that on this count his approach fares poorly, and so he has to answer a genuinely hard question about how to treat precedents with which he disagrees. To his credit, Epstein puts his cards on the table: “In my view, the answer often turns on this simple question: does the original version of the Constitution or its subsequent interpretation do a better job in advancing the ideals of a classical liberal constitution?â€
Would our constitutional order be better if judges insisted on moving the nation in the direction of laissez-faire? Would Americans be freer? Would our lives be better? Epstein thinks so. But philosophers and economists have a lot to say on those questions, and there is no consensus, to say the least, that Epstein is right. If we do not accept the libertarian creed (or at least his distinctive version of it), we will emphatically reject his particular moral reading. And even if we did accept that creed, we would have to ask whether federal judges, with their limited place in our constitutional order, should insist on it. Consider in this regard the cautionary words of Oliver Wendell Holmes Jr.: “If my fellow citizens want to go to Hell I will help them. It’s my job.â€
Epstein has written a passionate, learned, and committed book. But he is asking his fellow citizens, and the fallible human beings who populate the federal judiciary, to jettison many decades of constitutional law on the basis of a general theory that the Constitution does not explicitly encode and that the nation has long rejected. Epstein is right to say that in some contexts, a movement toward what he calls “classical liberalism†would be in the national interest. But a judicially engineered constitutional revolution is not what America needs now.
“The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Andrew C. McCarthy delivers a nice history lesson on why the framers accorded the House of Representatives the power of the purse and then explains why that power both can and should to be applied to defund Obamacare.
Let’s move directly to the 1787 convention in Philadelphia.
One of the major challenges confronting the delegates was to broker the competing claims of small and large states. As Franklin summarized, “If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger.†This resulted, of course, in the great compromise: equality among states in the Senate and proportional representation (by population) in the House. But this arrangement was inadequate to quell the large states’ fears; it was also necessary to tinker with the powers assigned to the two chambers. As Franklin put it, the Senate would be restricted generally in all appropriations & dispositions of money to be drawn out of the General Treasury; and in all laws for supplying that Treasury, the Delegates of the several States shall have suffrage in proportion to the Sums which their respective States do actually contribute to the Treasury [emphasis added].
When the Origination Clause was specifically taken up, a spirited debate ensued, with some delegates protesting against restrictions on the Senate. According to Madison’s records, however, what “generally prevailed†was the argument of George Mason:
The consideration which weighed with the Committee was that the 1st branch [i.e., the House of Representatives] would be the immediate representatives of the people, the 2nd [the Senate] would not. Should the latter have the power of giving away the people’s money, they might soon forget the source from whence they received it [emphasis added]. We might soon have an Aristocracy.
Mason’s concerns seem prescient in our era of mammoth national government presided over by an entrenched ruling class of professional politicians. He worried that
the Senate is not like the H. of Representatives chosen frequently and obliged to return frequently among the people. They are chosen by the Sts for 6 years, will probably settle themselves at the seat of Government, will pursue schemes for their aggrandizement. . . . If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried, (to use a common phrase) for the meeting of the H. of Representatives. . . . The purse strings should be in the hands of the Representatives of the people.
Yes, the purse strings, not just the power to tax. Concededly, the Origination Clause speaks of bills “for raising revenue.†In selling the Constitution to the nation, though, it was portrayed as securing in the hands of the people’s representatives the power of the purse. It is an empty power if spending is not included.
The relevant paragraph in Madison’s Federalist No. 58 is worth quoting in full (all italics mine):
A constitutional and infallible resource still remains with the larger states by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of government. They, in a word, hold the purse — that powerful instrument by which we behold, in the history of the British constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
To my mind, what Madison describes unquestionably transcends taxing authority. I believe a “complete and effectual weapon . . . for obtaining a redress of every grievance†must give “the immediate representatives of the people†the power to block funding for a government takeover of health care that was enacted by fraud and strong-arming; that was adamantly represented not to be the tax that the Supreme Court later found it to be; and that is substantially opposed by the people, and has been since its enactment.
(We the people are the turkey.)
Charles C. W. Cooke, at National Review, responds to progressive complaints about gridlock, explaining that one branch of government preventing another from acting is a design feature of the American system, not a bug.
Separation of powers is inefficient; it is an obstacle to substantial change; and it will not only “allow†gridlock but it is explicitly designed to encourage it. Where [leftist critics] are wrong is to conclude that this should change with the times. The Constitution is the product of abiding insight into politics — an insight that does not change with the wind. Rather amazingly, Yglesias claims the opposite to be the case: The problem of gridlock, he wrote in 2011, stems directly from the Founders’ having had “little in the way of experience to guide them in thinking about how political institutions would evolve.â€
This is not simply untrue, it is the perfect opposite of the truth. Having watched the radical transformation of the British system during the 17th and 18th centuries — and studied undulations of the classical world, for good measure — most of the Founders were strikingly well versed in political theory. The introduction of limiting tools such as the rule of law, term restrictions, a codified constitution, a bill of rights, and divided government were intended to dispense with the presumption, famously termed “elective dictatorship†by Lord Hailsham, that the man who is voted in as leader every four or so years should have carte blanche to get things done. In other words, the Founders sought to block precisely what [Matthew] Yglesias and his cohorts covet. Nobody is perfect, of course, but I would wager everything I own that the architects of America were more au courant with the vagaries of human nature and the concentrating tendency of political actors than are the writers at Slate.
“We’re not trying to take your guns away, just have reasonable limits. It’s a compromise.”
And some people want reasonable limits on abortion, like waiting periods, gestational time limits, ultrasound, etc. It’s a reasonable response to an activist court decision, and reasonable restrictions on a right, for public benefit. Don’t come whining about your right to murder babies, and I won’t come to you whining about my right to shoot school kids.
And no one is saying you can’t ride the bus. You just have to sit where people think is reasonable. No one is saying women can’t work. They just have to get paid what is reasonable for the work they do, allowing for the fact they’re going to leave the workplace and raise a family. It’s a compromise.
Georgetown Law School’s Carmack Waterhouse Professor of Constitutional Law Louis M. Seidman cannot even be bothered to wear a coat and tie when participating in a debate on a major issue of national public policy, i.e. defending the supposed constitutionality of the Obamacare health insurance mandate.
I smiled recently with bitter amusement upon reading of Stanford University’s preposterous appointment of an “atheist chaplain” when I came upon the detail that made the story perfect: the new padre in charge of unbelief is a graduate of Harvard Divinity School.
It seemed to me to speak volumes about establishment university administrations’ systematic pattern of what really amounts to nothing less than long-term embezzlement via the application of institutional resources and funding for purposes diametrically opposed to those which the institutions in question were created to pursue. It sounds like a joke when you observe that one of our most elite divinity schools graduates doctors of divinity specializing in atheism, but the pattern of institutionalized academical heresy and treason obviously extends far beyond mere theology.
Over the weekend, the New York Times published an editorial, written in complete earnest by a tenured professor of Constitutional Law at Georgetown, one of the country’s top-tier law schools, titled “Let’s Give Up on the Constitution.” Its author, Professor Seidman, who has been teaching, i.e. obviously traducing and malpracticing, Constitutional Law for nearly four decades, brazenly argued in favor of ignoring the Constitution altogether.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Obviously what this country needs to do is the precise opposite of seeking spiritual counseling from atheists and constitutional legal analysis from opponents of constitutional government. We need to take back our most important and prestigious institutions from the flakes, creeps, and radical fanatics who have infiltrated and occupied them. Our best-credentialed elite ought not to be enthusiastic adversaries of the historical country, culture, and civilization which created the institutions awarding their credentials and vesting them with influence and authority.
