Constitutional Trial and Error

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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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25 Comments

  1. DN  •  Dec 2, 2010 @3:05 pm

    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.

    Reminiscent of our two-thirds requirement in California on taxes and the budget (modified in the last election) which effectively gave the minority party a veto over most fiscal matters. And look how well that’s turned out for our state government!

  2. c u n d gulag  •  Dec 2, 2010 @3:55 pm

    Ah yes, let’s let the 50 state legistatures decide Federal Laws.
    To expand on my late comment on the last post, think about that. Now, pick out two of the stupidest Congresspeople out of a hat. There are plenty of candidates vying for that ‘honor,’ but let’s just pick Pence and Bachman, just for shit’s and giggles. Realize that many members of Congress came from their state’s legislatures. Pence and Bachman, and the other “morans” were the ones considered THE Rocket Scientists compared to their compatriots. Now, we’re going to ask these ‘left-behind’ imbeciles, who probably couldn’t drive to their Capitol without some aid plugging in the GPS coordinates into their car because they aren’t smart enough to use maps (“Maps don’t help me – they’re flat, and I’m looking at some hills! What do I do?”). Does anyone really want these people voting on issues of National importance? Well, if you want to tie the goverment into completely ungovernable knots, then I guess your answer is yes. And maybe that’s why this’s coming from the Republicans, for whom “ungovernable” is a step on the way to controllable.
    If this is taken seriously by anyone with an IQ higher than a low wattage, energy saving bulb, they ought to have their motives examines. And, I recommend if they’re still for it, that they be taken off the grid for any advances made by the Federal Goverment in the past 2 Centuries. No electricity, no planes, no travel by water if it’s tied to a canal, no driving on the highway – your travel is limited to riding a horse on a local corduroy road, and you have to pay the tolls out-of-pocket, dumbass!!!
    If our national discussion involves something as plainly and painfully stupid as this one, that’s just another example that we are well out of the ‘Age of Enlightenment,” and well into “The Age of Idiocy.”
    When did our national language go from English to Gibberish? Probably about the time that Republicans figured out their goal of governance was to create “Gordian Knot’s” rather than solving them.

    I’m going off to do something pleasant for the rest of the afternoon. I’m going to give my 16 year-old nephew driving lessons to and from his horn lesson. With a burrito or a couple of taco’s at this great Mexican joint for me and him as a reward from my sister. I just may drive off the bridge on the way home…
    Have a pleasant evening, all!

  3. Bonnie  •  Dec 2, 2010 @5:25 pm

    There was this thing known as the Equal Rights Amendment. It was unable to get two-thirds of the states to ratify it. It was felt at the time that would be the fate of any future amendments.

  4. maha  •  Dec 2, 2010 @5:38 pm

    Bonnie — reflect upon the electoral college map of 2004:

    http://www.presidency.ucsb.edu/images/elections/maps/2004.jpg

    If that many states could elect George W. Bush, then that many states could be persuaded to ratify some whackjob right-wing constitutional amendment. It’s only liberal amendments that can’t be ratified.

  5. jugheadjack  •  Dec 2, 2010 @5:43 pm

    I feel pretty sure that they would change the voting laws first, so that only those with property would be allowed to vote. I’m sure you can imgine who that would be. Then the poor who own no property would be stuck withy what ever law the repugs wanted. Aside from all that BS, the repugs need to concentrate on jobs, not changing the constitution, Which ain’t gonna happen, its just enother dersionary tactic to take our eyes off the economy, which the stupid cannot even come up with solid plan to fix.

  6. moonbat  •  Dec 2, 2010 @7:29 pm

    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.

    And these people are so programmed by The Powers That Be, who like things Just The Way They Are, Thank You Very Much – that any suggestion that the Constitution might be a tad out of date – and it’s as though you whispered plans to murder their mother. It’s a subject you can’t even talk about rationally – somewhat because few people (apart from law school students) even agree on what the Constitution says, but also because people are programmed to think Every Word Was Written by God.

    Your update covers the many ways the world has changed since 1787, but it omits a key one, one that in many people’s view, is a critical flaw, and that is the rise of organized money in the form of powerful corporations.

    When the Constitution was written, corporations were in their infancy, their powers very limited. They were routinely chartered and dissolved, after their stated purpose was completed or they overstepped their bounds. Corporate rights expanded in the decades that followed, particularly after the creation of the first national enterprises (the railroads), and particularly in the chaos that followed the Civil War. The railroads and armaments industries grew wealthy enough to organize and influence government, which ultimately resulted in corporate perpetual existence (a corporation never dies), and the increasing rights of corporate personhood, to a level approaching that of human beings. This year’s Citizens United Supreme Court decision, which removes the limits on corporate donations to political campaigns, is merely the most recent event in a very long trajectory of events that spells the corporate takeover of the United States.

    Although the founders were aware of corporate power – and I believe some of them thought it should be mentioned in the founding documents – but at that time corporations had nowhere the power they do today. And so this is a subject they let slide. I don’t think they could imagine this invention ever becoming as powerful as it is today, where it can basically subvert entire governments, no matter how ideally founded, no matter if its Constitution was Written by God Herself.

    Now, you explain this History of the Corporation to a Teabagger, and I suspect that most of them just shrug, and continue rattling on about the Evil Gummint. The people that suck down this programming are just not the brightest bulbs in the box.

    I’m reminded of an anecdote I think I posted here some months ago. It was about an apartment owners group in New York City. They were tired of walking out of their apartment building and getting mugged. They wanted to hire a doorman to help keep the riff raff away from the building. There were some members, sticks in the mud, who were vocal about the cost of hiring someone, and would not go along with any proposed changes. Eventually the majority got tired of listening to these holdouts, and hired somebody. There comes a point in time where you just have to get past listening to idiots, and stop giving them any sway.

  7. Doug Hughes  •  Dec 2, 2010 @9:10 pm

    Fascinating subject – Great Post, Maha.

    Moonbat, your comments re corporations are spot on.

    I wound up doing extensive reading and the bottleneck to an Article V Convention will be the constitutional requirement for a three-fourths approval of any amendment.

    There’s also NO requirement that a convention, once called, would be limited to a single amendment or amendments or subject. In theory, a Constitutional Convention could completely rewrite the Constitution if three-fourths of the states approved the final product.

  8. syskill  •  Dec 2, 2010 @10:23 pm

    The regular military consisted of a standing army of maybe 600 officers and men and a naval fleet of six wooden frigates.

    Er… no.

    If your point is that the United States Army was tiny in the first years after the Constitution was ratified, then I think you’re correct. However, in absolute terms I’m pretty sure you’re off by an order of magnitude. Wikipedia, source of all correct facts, says that the first attempt to organize the army after the end of the Confederation was a “brigade-sized force”, i.e. 3000-5000 soldiers [cite]. The army had 7,000 regular soldiers (not counting militia) at the beginning of the War of 1812, and grew to nearly 36,000 by the end [cite].

  9. maha  •  Dec 2, 2010 @11:29 pm

    syskill — I was only off by 200 men, according to the website of the U.S. Army Center of Military History. According to this page, at the beginning of the Constitutional period, in August 1789, the entire standing army consisted of about 800 officers and men. The 600 number I remembered was roughly the number of infantry regulars at the time.

  10. Chief  •  Dec 2, 2010 @11:41 pm

    Your last two posts could be a good jumping off spot for the left and the right to have civil and substantive conversations. Yeah, right, good idea, but . . .

  11. Bill Bush  •  Dec 2, 2010 @11:59 pm

    Maha, this is oversimplification for your readers, but some may find it helpful to print out for the edification of some of their associates. It won’t change their minds, but they will quit spouting their bull at you.

    While the topic is on constitutional or “basic” aspects of government, I’d like to weigh in on the provisions for financing our government. Commenters often say we need to have a budget that balances like our household budgets. In America, that is a prescription for disaster. I will acknowledge our national credit card debt, foolish participation in materialistic bubble spending, failure to save and other household financial excesses in passing, but I want to develop the larger and more threatening aspect of this false analogy.

    It is an attractive-sounding, simple-minded talking point, not a considered framework for analyzing a national spending plan.

    Our nation’s finances include more and longer-term goals and programs than any household budget. The federal government is expected to respond to more and larger unpredictable events than any household, and those events are spread over a wider, more variable landscape and social geography than any household has to consider. No household has to respond to so many safety issues or perform its own microbiological or chemical contamination examinations. There is just no similarity in terms of degree, quantity, or ultimate outcome of expenditures.

    One example: drinking water. Families have wells or municipal connections, by and large. Government has to purchase land and plan for clean watershed runoff to reservoirs held back by dams that must last over 100 years, with constant inspections, testing, standards enforcement, distribution development, resource conservation and maximization of efficiency. That does not include separate collection and treatment of the used water, along with assuring it is safe to return to the system despite being used for thousands of industries in addition to household use. There is also the planning and funding of future provision for supplies and users. A monthly residential water bill just doesn’t compare, and typically does not fund all the functions of the water system. Some are managed by the municipality, some by the state division of natural resources, and some by federal agencies, including parks and national forests. The monthly bill is not all-inclusive.

    Water is just one complex item over-simplified in the household budget analogy. Electricity, anyone? Safety?

  12. buckyblue  •  Dec 3, 2010 @8:16 am

    Not only do you have Tbaggers but members of the Supreme Court who think this. Scalia looks in his cup of tea, um, for guidance on the founders intent. I don’t care what their intent was. You hit it on the head Maha, the founders had absolutely no clue what this world would be like. Many thought, including Jefferson, that we should be writing constitutions every 19 years. I personally think the Constitution has served its purpose, but we should write a new one. The Constitution depends a great deal on the rationality of man, that rational men (literally) will make rational choices. Well, we know how much that works, especially now. Just in the electoral college, if you add up the electoral votes of the small states and DC you get 24 votes, their population is about 5.5million. They get more than half of the votes of California with a fraction of its population. For the life of me, I can’t figure out why California stays in this mess. The entire west coast for that matter. We used to have different people within the party who would vote across party lines, therefore allowing for a broader representation within the parties; that absolutely never happens these days. So if you’re a republican you are saddled with basically a Tbagger party(which Maha has written about extensively). My rather rambling point is that huge parts of our population are not represented in the current system (there are currently NO African Americans in the Senate, and only a handful of women). Not to mention divergent political view, simply not represented. California has the same representation in the Senate as Wyoming, really. It’s a broken system that needs to be changed. Our founding fathers were not some 18th century Moses who handed down the Constitution written in stone. Even though I know some people think that’s the case.

  13. c u n d gulag  •  Dec 3, 2010 @9:09 am

    Gather ’round, children, and take a look at the link below. I found it at one of my favorite sites, Balloon Juice, where Dennis G, a regular there who writes about the Confederate Party, aka, Republican. And he reminds us that a very, very scary anniversary is coming up in 2011 – the 150th year since the start of the Civil War, or, “The War of Manners” (as if Ann Landers and Dear Abby had squared off in armed combat, and hundreds of thousands lost their lives over the question of whether the toilet paper should dispence the sheets from over or under) as it is known, among other euphamisms.
    The link he provided from the great “Mother Jones” shows real TV commercials by, and for, the SVC, “Sons of Confederate Veterans.” These recruitment ads actually ran on “The HISTORY Channel” before someone there finally pulled them because they realized they weren’t working at ‘The FICTION Channel!’
    So, feast your eyes, but be on guard against madness:
    http://motherjones.com/mojo/2010/12/video-confederate-cool-again-south-slavery-lincoln

    The “celebration” of this anniversary will, I’m sure, foment madness the likes of which many of us old enough to remember haven’t seen since the ’60’s. The inherent racism of many of our folks here is just waiting for an outlet. Their guns will be locked and loaded and we all can imagine who the target will be – Obama, Democrats, andwe Liberals – the “Unholy Trinity” in their eyes.
    And now they have a date that they can lock their feeble little minds around – the 150th Anniversary of “The Rape of the South,” still another euphamism.

    These little minutes of propaganda and recruitment are sure to start to run on FOX, and some other channels who really don’t care what an ad says, as long as the check doesn’t bounce.
    This country may very well unravel even sooner than I thought. I’m telling you, the time has come to take the Flouride out of the water and replace it with Thorazine. That may be our only hope…

  14. Randy  •  Dec 3, 2010 @11:37 am

    “Now, you explain this History of the Corporation to a Teabagger, and I suspect that most of them just shrug, and continue rattling on about the Evil Gummint.”

    Not quite, moonbat. They will start shrieking about how you are trying to push a liberally-infested Marxist/Islamist view of history on them, and if you knew The Truth ,you wouldn’t dare say such nonsense

  15. Pat  •  Dec 3, 2010 @12:30 pm

    I read a few articles lately highlighting some teabaggers who in their typical role as messenger boys for corporations railed against government “interfence” with capitalism wrongly asserting that it goes against the grain of tradition and, of course, the intent of the “the founding fathers” (well their invention of the founding fathers)…which is about as nutty and wrong-minded as “we were founded as a Christian nation.” You can see these things coming a mile away. It’s unavoidable to respond but like pushing some sort of remote control button they instantly have many talking about it and have once again set the topic and its framing. Their focus now seems to be one of proving that the federal government is oppressive while simultaneously inciting something that they could use to prove their point.

    I’m well into “Varieties of Fascism” by Eugen Weber…written in 1964 but quite good. The tea party and their corporate abettors seem to much prefer the Italian variation that merges government and corporation (Goldman Sachs Federal Reserve?) without a shot being fired and that may likely happen if we cannot summon some collective, latent sense of government offering social protection and security. It’s ironic but understandable that a large part of corporate America has met their greatest fear head-on, making the government the enemy in the eyes of many.

    I’d like to say something like “it’s kind of funny that” they strain the definition of one cherry picked version of fascism but overlook the one they seem to embrace the most…but it’s more of the same and should be expected by now. I’m still waiting for some idelogical offensive and a leader admired and articulate enough to lead it rather than continually being in response mode.

  16. Pat  •  Dec 3, 2010 @1:50 pm

    …after thought. With enough money the nimble can effectively deal with any little flareups at the local level. After going about as far as they can with Having cash in reserve it might be easier for them to further their agenda at the local level…a backup plan, if you will, for whatever their guys in Congress cannot effectively deal with.

    Walter Lippman (1889-1974), one of the most influential American journalists, wrote:

    the mass of the reading public is not interested in learning and assimilating the results of accurate investigation. Citizens, were too self-centered to care about public policy except as pertaining to pressing local issues.

    I suspect that debate at the local level might be more easily and cheaply manipulable than is the national debate which a very small but powerful minority seem to have herded in the direction they want.

    If they manage to sow more seeds of discord at the local level the only remaining power will be that of the corporation that need not expose it’s agenda publicly or submit it to open debate.

  17. erinyes  •  Dec 4, 2010 @7:14 am
  18. Pat  •  Dec 4, 2010 @12:41 pm

    erinyes, that’s great…can’t wait to read and at first glance seems more timely than this more antiquated graphic representation:

    http://cid-31e12062d0015784.photos.live.com/self.aspx/Best%20Images/PyramidCapitalism.gif

  19. Felicity  •  Dec 4, 2010 @1:24 pm

    It’s been argued that the recent teabagger phenomenon is attracting people who feel themselves losing power, whereas ideology (s) are secondary if existing at all in most cases. Supporting the correctness of some belief with the Constitution is the old and tired dragging up of some seedy old trusted document to give credence to your argument.

    Cited examples of how the threat of losing power plays out anti-gay marriage people are people who hold to heterosexual power; anti-integration people are people who hold to white power; American christians are people who hold to christian power; conservatives are people who hold to conservative power NOT people who oppose liberals, as is usually thought to be the case…

    We see the threat of loss of power played out even globally. Muslim vs non: Taliban vs non: alQaeda vs non: Israelis vs non:

  20. c u n d gulag  •  Dec 4, 2010 @2:00 pm

    Felicity,
    Certainly there’s a lot of truth to that.
    Here at home, all of the American groups you mentioned have joined forces to accomplish the goal that has eluded them thus far – to discredit, and then annihilate Liberalism and Liberals. That is the one shared goal, whether you’re a religious nut, a homophobe, a racist, a xenophobe, or some other variety of the now lunatic conservative caucus. They just want to crush the left. Then, they can fight amongst themselves for superiority and power, because there won’t be anyone left to try to stop them from taking over the country, and then trying to do so with the rest of the world.
    These are scary times indeed…

  21. erinyes  •  Dec 4, 2010 @5:17 pm

    http://www.buzzflash.com/

    Go to this site, then scroll across the top to Chris Hedges’ video “death of the liberal class”.

  22. Swami  •  Dec 4, 2010 @6:47 pm

    erinyes…Good link! We’re going to hell in a handbasket.

  23. erinyes  •  Dec 4, 2010 @6:50 pm

    Swami. I’m thinking ‘New Zealand in a sail boat” beats hell in a handbasket.

  24. erinyes  •  Dec 4, 2010 @7:15 pm
  25. Felicity  •  Dec 5, 2010 @12:39 pm

    cundgulag – what’s really scary is so many are buying into only-the-Republicans-can-save-you-and-your-America.

    What’s amusing, and definitely food for thought is we liberals have been hated by the best of them. Lenin hated us. The Bolsheviks hated us. Stalin hated us. Hitler hated us. Hated for decades by the extreme Right and the extreme Left – in fact hated historically by all bent on ruling absolutely – who wouldn’t be proud to be a liberal.

    America, believe it or not, was a liberal idea. And now? Any ‘liberal’ state is a perversion. The ideal state is one that considers the market the ideal nexus of human society. Soros’s comment on that absurdity? “Only imbeciles and tenured professors of economics believe in the conscience of markets.”

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