Browsing the blog archivesfor the day Thursday, December 2nd, 2010.

Constitutional Trial and Error

Obama Administration

Following up the last post — with the Constitution, the Founding Fathers gave us a structure of government and governing principles that succeeding generations could apply to their own circumstances to govern themselves. Making the structure and principles work in the real world was another process that involved a lot of trial and error.

There was much stumbling around in the early years, but little by little various precedents took hold and became the standard procedure because they were practical and workable. Judicial review is a good example. The notion that the Supreme Court would be the final arbiter of the constitutionality of law probably wasn’t on anyone’s mind at the Constitutional Convention of 1787, and truth be told the idea didn’t completely take hold until the latter part of the 19th century. But today the SCOTUS is assumed to be the final arbiter of constitutional questions.

Dana Milbank writes today about the constitutional “repeal” amendment that would allow a group of states to nullify a federal law with which they disagreed. This is not without precedent; Thomas Jefferson and James Madison tried to annul the Alien and Sedition Acts by asking states legislatures to vote to, in effect, veto the law on constitutional grounds. Not many state legislatures complied, however, and the Alien and Sedition Acts eventually just expired.

But all this happened before Marbury v. Madision and the precedent of judicial review, which mightily pissed off Thomas Jefferson. But as a practical matter, I suspect that if Madison and Jefferson’s idea of state legislatures deciding constitutionality of federal law had taken hold, state legislatures would end up spending most of their time debating federal laws. Can you imagine the pressure state legislatures would feel from interest groups to nix laws they don’t like?

So, from the perspective of political theory, one could argue that such a process of state nullification was very much in keeping with the Founding Father’s intentions. In fact, one could argue that states could do this anyway, if they chose to, and an amendment isn’t required. But just because something can be done doesn’t mean it’s a good idea to do it.

Anyway, Milbank writes,

The mechanics of the amendment are also a bit odd. It would allow the repeal of any federal law – from civil rights to health care – if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.

Does anyone doubt that much of the civil rights & liberties legislation of the past several years would be the first items on the agenda?

Update: I want to expand on this a bit — as is nearly always the case, what we’re facing here is the difference between living in the real world and living in never-never land. The anal insistence that any function of government not explicitly spelled out in the Constitution amounts to encroaching tyranny ignores the fact that we’re not living in the 18th century any more.

When the Constitution was written, there was no air traffic. There weren’t even any railroads yet. The “right to bear arms” referred to owning muzzle-loading muskets that could only fire as quickly as the shooter could load and fire — three rounds a minute was the standard.

No one knew what germs were, or what caused most diseases. The Founders would have been baffled by health safety inspections. Health care was not a “right,” but the fact is that medicine was so primitive in those days most of the time you were no better off with a doctor’s care than without it.

No one was dependent on an energy grid or a telecommunications network.

Jobs could not be “outsourced.” In fact, not many people worked for a salary, anyway. Most men were independent farmers or artisans (e.g., silversmith, shoemaker, tailor), aristocrats supported by family wealth and plantations, or live-in servants or slaves. Nearly everyone lived in proximity to where they worked; any sort of commuting was rare.

National security consisted of enrolling most men into state militias that could be called up in case of invasion or Indian attacks. The regular military consisted of a standing army of maybe 600 officers and men and a naval fleet of six wooden frigates. Just about any army in Europe could have crushed us were it not such a nuisance to get men and ordnance across the Atlantic Ocean in enough numbers to do the job.

As a nation, we’ve been through a lot of stuff that would have been unimaginable to the Founders. We’ve increased in size several times, and within our borders are lands the Founders didn’t even know existed. We’ve experienced a Civil War, waves of immigration, two World Wars, the Great Depression. We live in a world in which nuclear war is possible. We live in a world in which dumped industrial waste can kill hundreds of people. We live in a world in which a sloppy slaughterhouse in Minnesota can give a fatal dose of e coli to a child in Florida. We live in a world in which a worker in China can take a job away from one in North Carolina. We live in a world in which medical science can extend one’s life by many years, but at great cost. We live in a world in which most people depend on a job, and a paycheck, to live. We live in a world that is fighting with itself over issues of race and sexual orientation that 18th century white men simply did not consider.

This world we live in didn’t exist in 1787, and the delegates of the Constitutional Convention couldn’t have imagined it.

As a nation, we have gained much in experience and knowledge since the Constitution was written. We, the People have seen many things, lived through many things, learned many things. The problem is, much of the nation does not trust that experience and knowledge. The modern world is frightening and baffling to them, and they want to retreat to a previous time that never existed, or at least never existed as they imagine it.

When some teabagger starts thumping his chest over protecting the Constitution, what he’s really saying is that he wants to wipe out the last couple of centuries of history and human development. And I bet they could do it, too, if they aren’t kept in check.

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