Constitutional Matters at the New York Times
Lance on Aug 30 2007 at 2:18 pm | Filed under: History, Lance's Page, Law, Media
So, when you spend a great deal of time touting your authority based on the unique advantages of editors, the question must be asked, who reviews the views and claims of the editors? From the editorial board of the New York Times we get this rather startling new information on our Constitution:
It is an eminently good thing that the anti-suicide measure would require medical specialists to keep track of veterans found to be high risks for suicide. But that’s to care for them as human beings, under that other constitutional right — to life, liberty and the pursuit of happiness. Respect for the grave sacrifices by veterans requires the Senate to strike down the Coburn ploy and hurry this vital measure to President Bush.
I think these kinds of beliefs explain a lot about how The Times views our Constitution. I suggest that they disabuse themselves of such ignorance by having everyone on their editorial board (and make it a requirement of future editors as well) study the work of a notable New Yorker by the name of Alexander Hamilton, as well as his co-authors John Jay and James Madison. Perhaps they have heard of the work, “The Federalist Papers.” Preferably they could do so under the tutelage of Randy Barnett (I think one should have it lead by someone likely to challenge any desire to search for what they want to in the text. Broadening perspective and all that.) This work, which they may have had assigned long ago, under rigorous examination may not change their views about anything, but at least we wouldn’t have to listen to them claim quite as often things about our constitution and how it is supposed to be interpreted which are manifestly untrue. Of course, while it would be a good thing for our nation if such an influential organ did this kind of thing, it would deprive many of us of a certain smug satisfaction.
So be it, we all have to make sacrifices.
(H/T: Instapundit)
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The View From the Bluff: Lance’s Economic and Finance Blog
Hey, their quote was fake but accurate.
I recall not long ago, noted Constitutional scholar Bill Maher expressed bewilderment and shock that there was no mention in the Constitution of a right to privacy.
Perhaps the NYT editorial board takes the position that the right to “life, liberty and the pursuit of happiness” is embedded in the notion of a constitution for a nation which in effect declared its being in the Declaration of Independence. Whether or not one agrees with this view, it is not an unreasonable notion. I hope that the commentary on this will not degenerate into tut-tut talk of lawyers who want to show their superiority to non-lawyers in matters of constitutional exposition. I have experienced enough of that during my law school years and during my 28 years of law practice. The serious issue that the NYT editorial board’s piece raises is whether governmental mental health initiatives are somehow based on our constitution or are really policy matters having no constitutional import (other than the notion that Congress must have concluded that it has constitutional authority to legislate in these areas).
Does this mean “endowed by their Creator” (from the very same sentence) is also in the Constitution? Ask the NYT that — I suspect they’d choke on the very thought.
Wow! There’s a ‘right to life’ in the Constitution? Supreme Court musta missed that one.
What should also be noted about the NYT piece is that they seem to imply that without a government program to track and care for these veterans that they would be being deprived of these rights. I always thought that our rights were inalienable rights inherent in mankind as created by God and not bestowed upon us by Congress through a government program.
New official theme song of the New York Times:
“Dare to be Stupid”:
Pray allow me to offer my heartiest congratulations to the Times: the mind-numbing vapidity, idiocy, and factual inaccuracy of this latest effort is nothing short of breathtaking. And, when it comes to the Times and its sister publications, that’s saying a lot.
Must be the full moon, the NYT bored of idiots also condemned the Marines and defended Iran today.
T. Collins: I don’t have a CLUE what you’re talking about – probably because you don’t either.
You might also want to take into consideration the fact there is no reference in the U.S. Cont. to “entitlements”.
T. Collins: “But…but…aren’t entitlements my constitutional right??? I mean aren’t entitlements something which are “embedded in the notion of a constitution for a nation”.
The version of the phrase in the Constitution is “life, liberty, and property” (Amendments 5 and 14).
Richard,
Correct, which is of course used in terms of the state not being a able to deprive a person of such without due process of law. No executions, jail or asset seizures without a trial or due process, which shows their confusion. First in understanding the terms role constitutionally, and of course substituting happiness for property being a rather huge difference.
Thomas,
I agree it is not unreasonable. Lincoln certainly felt the Declaration had to be considered in discussing the Constitution. Yet I feel it proper to point out that while it may be reasonable to consider the Document, it isn’t the same thing as the Constitution, and it hardly should take a lawyer (I am not) to realize that if one is to opine on the Constitution with the kind of smugness and moral outrage the Times editorial board regularly does that one needs to have some real grasp of what the document says, and was felt to mean, by its architects. They are not claiming that the right is inherent due to the Declaration and implied by the text, they claim it is a right that is in the Constitution, which is a very different thing.
The Times regularly fails this fairly simple test of historical literacy. I am not a large basher of the Times, but on this kind of thing they regularly frustrate me. I understand that they endorse a rather different form of legal interpretation than I do. I can disagree, but I can see its roots. The Times however doesn’t seem to even understand what it is they wish to oppose, or the documents that inform the debate around which these debates should run. Thus, while I can disagree strenuously with some forms of legal interpretation I can at least assume they know what they are really arguing about. The editorial board however repeatedly weighs in with views that not only are not supported constitutionally in my opinion, but have no idea why one might think so. They show a shocking, as in this case, ignorance of the Constitution,The Federalist Papers, or any of the relevant arguments of the time. Instead, the Constitution is merely what they think it should be, rather than what it is.
What is also interesting is that they use this invented reference to our Constitution in an attempt to counter Senator Coburn’s legitimate concern for the Constitutional rights of veterans to bear arms. It is as if they are showing childish contempt for the Constitution and the fact that a question of rights may stand in the way of a government program that they approve of and so are in essence mocking the Constitution and the right to bear arms by intentionally using a false reference. Possible?
So it still would have applied if we stayed with the Articles of Confederation? That sorta reading leads you to the path that what the Constitution says doesn’t really matter.
alwyr stated:
“T. Collins: I don’t have a CLUE what you’re talking about – probably because you don’t either.
You might also want to take into consideration the fact there is no reference in the U.S. Cont. to “entitlements”.
T. Collins: “But…but…aren’t entitlements my constitutional right??? I mean aren’t entitlements something which are “embedded in the notion of a constitution for a nation”.”
Wow, what a compliment! I’ve been blasted by alwyr, and alwyr has attempted to read my mind. I had no idea my post would attract such attention.
)
Well, alwyr, I am helpless in the face of your onslaught. In the last sentence of my post, I thought I had acknowledged that the question might be viewed as a policy matter. Yet, you seem to feel I need to be schooled in the language of the Constitution. Yes, the word “entitlements” doesn’t appear. Neither does “right to travel” appear, yet the notion of a constitutional “right to travel” has spawned much constitutional litigation. “Unitary executive” doesn’t appear either, but the notion of the constitution establishing a “unitary executive” has been argued by those smarter than me (and perhaps even you, although I shudder at the thought of mentioning that someone may be smarter than mindreader alwyr). I could go on and on, but I won’t further bore you with things about which, I no doubt, as you point out, don’t have a CLUE.
But since you think my prose unworthy, let me try a different style: some say that duh US ConstitOOtion is music based on Tommy Jefferson’s July 4th rap. Is that better, alwyr?
))
Thomas,
I agree it is not unreasonable. Lincoln certainly felt the Declaration had to be considered in discussing the Constitution. Yet I feel it proper to point out that while it may be reasonable to consider the Document, it isn’t the same thing as the Constitution, and it hardly should take a lawyer (I am not) to realize that if one is to opine on the Constitution with the kind of smugness and moral outrage the Times editorial board regularly does that one needs to have some real grasp of what the document says and was felt to mean by its architects. They are not claiming that the right is inherent due to the Declaration, and implied by the text, they claim it is a right that is in the Constitution, which is a very different thing.
The Times regularly fails this fairly simple test of historical literacy. I am not a large basher of the Times, but on this kind of thing they regularly frustrate me. I understand that they endorse a rather different form of legal interpretation than I do. I can disagree, but I can see its roots. The Times however doesn’t seem to even understand what it is they wish to oppose, or the documents that inform the debate around which these debates should run. Thus, while I can disagree strenuously with some forms of legal interpretation I can at least assume they know what they are really arguing about. The editorial board however repeatedly weighs in with views that not only are not supported constitutionally in my opinion, but have no idea why one might think so. They show a shocking, as in this case, ignorance of the Constitution, the federalist papers, or any of the relevant arguments of the time. Instead, the Constitution is merely what they think it should be, rather than what it is.
Lance stated of the NY Times:
“They are not claiming that the right is inherent due to the Declaration and implied by the text, they claim it is a right that is in the Constitution, which is a very different thing.”
I agree with you, Lance, that the NY Times probably didn’t think through what they were saying. I simply thought that the editorial might be a good jumping off point for considering the extent to which we should take into account the Declaration of Independence in constitutional interpretation, and the whole issue of constitutional mandates versus policy preferences. To me, the NYT is a house organ of secular humanist liberalism, and is a marginally serious publication, at best. However, the NYT does stumble onto issues on occasion (even if by accident) that are worth considering.
Thomas and alwyr:
First rule of appellate law “keep it short and sweet.” Gentlepersons, you are verbose.
Good thoughts, but hard to read. Be succinct.
Don is concerned that the “embedded” reading:
“leads you to the path that what the Constitution says doesn’t really matter”.
I would agree with Don that looking to the Declaration of Independence or other founding documents as a source of constitutional interpretation can cause one to become unhinged from the reality that it is the Constitution that is in effect the “big bang” document of our piece of the cosmos that we call the United States. However, I don’t think that we can interpret the Constitution without looking seriously at the environment in which it arose. For example, the individuals at the Constitutional Convention didn’t adopt Locke’s treatises on government as our organic document; yet, wouldn’t an analysis of executive power under the Constitution suffer from our not having consulted Locke’s views on the matter?
Tim McPike said:
“Thomas and alwyr:
First rule of appellate law “keep it short and sweet.” Gentlepersons, you are verbose.
Good thoughts, but hard to read. Be succinct.”
Verbose? You should hear what my kids say about my emails, Tim.
))
Thomas,
I do think it is reasonable, and I didn’t take it that you were defending the Times, but rather showing where they were possibly coming from, if in a hopelessly inept manner. I think you are right about the philosophical approach, but I think they blew it and didn’t know it wasn’t in there. The text of the editorial does not read as if it was a typo or accidental misstatement. Even so, what about the editors again?
Personally I do think interpreting the document in light of the influences makes sense, but that would hardly support the Times’ interpretation in general or specifically here. The implications of that approach would leave them even further from their present way of looking at the Constitution than the Federalist Papers.
Tim McPike,
I appreciate the sentiment, but I will admit, if succinct is what you want, around here that is not necessarily a frequently observed virtue;^)
I do appreciate you stopping by and putting up with one of the windier blogs around, with me being the most culpable.
Another phrase that people are usually suprised to find ISN”T in the Constitution: “Separation of Church and State”. The Constitution does state that the government shall not favor one church/religion above another. This does not, however, imply that any reference to God, religion or supreme being be automatically expunged from government proceedings or dealings.
Lance noted that:
“The implications of that approach would leave them even further from their present way of looking at the Constitution than the Federalist Papers.”
I agree that justifying mental health tracking by the modern therapy state under the “life, liberty and pursuit” clause turns the meaning of that clause on its head. My view of that part of the Declaration is that (i) the “equality” reference is to each human existing on an equal level of creation (and leaving silent the issue of whether the creation is derived from what we might call natural forces, that of a watchmaker deist creator or one more associated with traditional religion), (ii) the “inalienable rights” reference is to those rights that stem from the creation (or, in modern terms, I suppose one might refer to “evolution”), and (iii) government nurtures the right to “life, liberty and the pursuit of happiness” by protecting its citizens from foreign enemies and largely staying out of the way. Although I tend to react with contempt to therapy state interpretations of the Declaration such as the one set forth in the NYT editorial under discussion, I think it’s at least worth keeping an open mind to those who want to make the case (which the NYT certainly did not do).
That we have inalienable rights is an urban myth. The word in the Declaration of Independence is unalienable not inalienable. No, I am not a lawyer. Just picky! Here is the quote “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Nic Johnson wrote:
“That we have inalienable rights is an urban myth.”
Maybe that is the way you see it but I do not. It is how I view our rights and it is what I have been taught in regards to how the Framers viewed them and of course it is written as you have quoted. Also if you check the dictionary “inalienable” and “unalienable” have the same meaning.
Nic Johnson noted that:
“The word in the Declaration of Independence is unalienable.”
Sorry for being sloppy. I think both words mean the same thing, namely, not capable of being transferred away. The rights referred to in the Declaration, because they exist by reason of each individual’s level of creation and place in the cosmos, cannot be transferred away by that individual.
I realize that this sounds esoteric, and one might ask why such practical people spoke in such esoteric terms. I think the answer is that folks who were in the vanguard of the 18th century Enlightenment thought that inquiry concerning our place in the cosmos was quite consistent with efforts in the practical affairs of daily living. Now, what might all of this have to do with interpreting the US Constitution? One possibility is that, even if it is appropriate to use the Declaration as a source of interpreting the US Constitution, the Declaration offers no support for the view that governmental entitlements or health monitoring programs constitute a constitutional right (as Lance mentioned earlier in this thread, the NYT interpretation is not supported by the Declaration).
Thomas,
Stick around. I like the cut of your jib.
One of the things we try and do here, is that even when we disagree, is to try and give the most reasonable interpretation of what people say (thus we cannot stand Greenwald who finds a way to distort everything in the most uncharitable way possible (For people who are fans of the art of Greenwald fisking, please look under the category Glenn Greenwald’s Carnival of Fisking.) We are quite fond of it.
Therefore, I believe trying to see the Times’ view is pretty important. I also agree with your point about how our founders generally understood the import and meaning of those words.
Regarding the “unalienable” vs. “inalienable” discussion: Watch the musical 1776, or even better, get a hold of the libretto. I read a copy of the libretto with the authors’ commentary some time ago, and the explanation is that the word is “inalienable” in Jefferson’s draft, but became “unalienable” in the printed version, and apparently there was a difference of opinion between Jefferson and Adams as to which form was correct. The authors suspect meddling on Adams’ part. But the two words mean the same thing.
The Times doesn’t really care what the Constitution actually says! They merely twist things (everything) to suit their own left wing purposes. Since treason doesn’t seem to exist anymore they get away with anything they choose.
I still cant help but wonder if this gaffe by the NYT was intentional or not (which if it was might explain as to why it was printed even though false). As I wrote earlier it was written and claimed a Constitutional right as a response to Senator Coburn’s stance on a the right to bear arms. They had even mocked Senator Coburn’s stance in the article by calling it “Second Amendment idolatry.” It seems to me that the writer maybe possibly intentionally mocking Constitutional rights a second time with a certain style of disrespect for treating it too intectually.
Richard Reed sent me an e-mail, which had this very good point:
Excellent! This is the kind of thing I expected to spend a lot more time blogging about, and really I am disappointed I haven’t. This topic deserves a post of its own. For a view of that kind of blogging I refer anybody who is interested to this post on George Washington’s farewell address and misconceptions about how to apply it to Foreign policy (and if anybody does go, feel free to leave comments. I love restarting old conversations.)
I think there is a lot of truth to the comment. I think seeing them as synonymous is a bit of a stretch (though Richard didn’t say that.) What I think Richard is getting at is that Jefferson and our founders viewed property as a key component of the pursuit of happiness, as a fundamental right. Of course Hamilton and Jefferson had different views of what kind of property was most important, but the point still stands.
Of course, the Times is not sympathetic to that view of property, but I think it accounts for much of the difference between how they understood what made people free and many people today.
First, I would point out that the Times editors did not put quote marks around the phrase, “life, liberty and the pursuit of happiness”, as thought they were quoting from the text of the Constitution. Therefore it seems a wrong to assume that it was their intention to imply that that phrase is in the Constitution’s text. They simply call the right of life, liberty and the pursuit of happiness to be constitutional, nothing more.
Second, I take the entirety of the notion that the Constitution established a government of limited, enumerated authorizations — one that did not grant that government the authority to interfere with the peoples’ pursuit of happiness, and one that by the tenth amendment specifically denied to the central government any powers retained to the states or the people — as embodying the constitutional right to pursuit of happiness. Life and liberty, of course, were specifically protected in the Bill of Rights, along with property, none of which the central government could take without due process. Therefore, while the phrase, “life, liberty and the pursuit of happiness” appears nowhere in the Constitution, the entire notion behind the Constitution was to forbid the central government from interfering with those rights. After all, a mere 13 years or so earlier, the Declaration had declared it the founders’ opinion that life, liberty and the pursuit of happiness were, self-evidently, unalienable rights that had been endowed by the Creator. Surely, so soon after those words were written and in an attempt to prevent the creation of another tyrannical government, this time on their own continent, that would once more trample their rights, the founders could not have failed to embody the rights of life, liberty and the pursuit of happiness in the Constitution.
Craig,
That is not only a defensible way to view the Constitution, that is the way I wish it to be. So I am with you. However, in the context in which the Times makes the assertion, that isn’t what they are driving at. They are asserting a positive right to those results, and thus for the type of program they are advocating:
As I discussed earlier, given what they do say, and especially in light of how they have discussed the Constitution in the past, one has to really squint hard to assert they are just talking about the implications behind the Constitution. They say it is another right (and notice they say, another right, as in unitary, as opposed to rights) not a general purpose of the Constitution. So yes, they are claiming it appears in the Constitution, though your explanation would provide a basis for why they assumed it was there, combined with remembering the 5th and 14th amendments vaguely.
Further, which is one of the reasons I suggested The Federalist Papers, is the Constitution did not assert a right to those things for a reason. The way the founders (always a tricky thing to say since they had a diverse set of views) looked at it was that the Constitution was designed to guarantee our lives, liberty and pursuit of happiness through specific limits on government power as opposed to a more vague and easily manipulated assertion of that general right. The same with privacy. Obviously they were concerned about privacy, but they didn’t just assert a right, they defined ways in which our privacy could be guaranteed, such as warrants, forbidding the quartering of troops, etc.
The Times is turning it on its head, as many at the time feared, by claiming a vague right which justifies whatever they want. They are using it to limit our freedoms and expand the power of the state. One can argue that is a good thing, but claiming it is based on this vague “right” found in the Constitution is not only literally untrue, it is even a more egregious error under the understanding you are positing. So that would be a rather ungenerous explanation.
The easier one is they don’t know much about the Constitution, except as it pertains to the first few amendments, which uniformed by the rest of the text and the discussions around it, they misunderstand as well. We need not be overly literal to see that, any interpretation that sees intent as having importance would see this editorial as nonsensical, whether that is due to literal readings, original intent, or traditions which acknowledge intent yet assert flexibility in applying it to a changing world. This editorial claims it is based on intent, actually that it is literally in there, either one of which is not true. So either way, we are left saying what they say is in the Constitution isn’t.
It is likely that the NYT editorialists view words such as due process, life, liberty, pursuit of happiness and equal protection, whether these words appear in the US Constitution or Declaration, as empty vessels into which they hope courts will pour the cement of a European style socialist state. This has been going on a long time, and has been successful in federal courts and state courts. In the case of state courts, many judges have used the empty vessels approach to take control of school financing systems (although in the 1973 San Antonio Independent School District v. Rodriguez case the United States Supreme Court derailed a Texas federal district court’s attempt to do the same thing).
Those opposed to the imposition of a European style socialist state however, might consider conservatives are willing to use the empty vessels approach when it serves their purposes. The Wall Street Journal editorial board clucked approvingly when the United States Supreme Court used the term “due process” in the US Constitution to limit punitive damage awards stare juries could impose on businesses. To their credit, Justices Scalia and Thomas recognized this for what it was, namely, conservatives acting in the so-called “economic rights” area in the same manner as the secular human left does in the so-called “privacy rights” area (I realize that in a recent punitive damage limitation case, Justices Steves and Ginsburg also dissented to the majority’s approach, but it has been Scalia and Thomas who have the most consistent).
Thomas,
You are correct about how regardless of ideological reference this is often done. Pretending your own #$@# don’t stink is part of what got the Republicans so off the rails in recent years.
Lance wrote the following:
Thank you, Lance. Your kind words put you at odds with the views of my family on my rantings and ravings, but thank you anyway.
As to Mr. Greenwald, I try to avoid faux post-modern psycho-babble explanations of human behavior, but I can’t help wondering whether an inherent part of a successful, wealthy, commercial republic such as the United States is the engendering in some of its inhabitants of severe feelings of guilt for living in such a prosperous polis, which guilt then leads such folks to adopt positions that make them feel socially conscious or progressive in their thinking, but which ultimately produce retrograde results. I am thinking in particular of the left’s rantings on the Kyoto Protocols which, if they had been taken seriously by the US and implemented, would probably have resulted in economic dislocations that would have harmed the lower middle class the most, and the “give peace a chance” adherents, who would emasculate what has probably been on the whole a pretty forward looking empire, namely, the United States. I hope I never live in a world where the statists or caliphatists have taken control, but I must confess to taking a guilty pleasure in the thought that if the statists or caliphatists take overr, it is the Greenwalds and Katha Politts of the world who will have the most difficult time with things.
OK, enough of that; as you cautioned, I should assign the most reasonable interpretation to what people say, even if i think they parroting lefty loony-tunes songs!
For some reason, my comments get taken as comment spam and are rejected. I’ve lost two comments in this way. It says that Javascript is necessary for commenting but I have Javascript activated and one of my comments have already been accepted so I’m at a loss.
Craig,
My apologies. it seems to happen when comments take a long time before being submitted. Long posts, or posts where you delay a good long while before submitting. It affects me as well. The solution is simple. Hit back. The comment should still be there. Copy the comment and paste it into a new form. Or, copy before you submit and do the same if it happens. It seems to affect only certain people, including myself. I thought I had the problem fixed, but no dice. I guess I’ll go back to the drawing board.
Lance,
I’m glad to see that there is some agreement regarding how to view the Constitution. Agreement is so much better than disagreement. It so rarely leads to acrimony. On the other hand, it is disagreement that makes life interesting. There’d be no such thing as debate without disagreement and where would the blogosphere be without debate? But the goal of debate ought to be, ultimately, agreement so let’s see what we can do about that.
First, I was not defending the policy prescriptions advocated in the editorial. My defense was intended to be quite narrow and related solely to these two propositions:
First, that the editors may not have been trying to suggest that the phrase, “life, liberty and the pursuit of happiness”, was actually contained in the text of the Constitution. You may be right, they may have thought and have been suggesting that but I don’t see that as a necessary conclusion from the text of the editorial. I prefer to give them as much leeway as possible. That is, unless such a conclusion is a necessary one, I prefer to assume that they were not propagating such an obvious error but were, rather, making a more subtle point about their view of what the Constitution is all about.
Second, that the right set out in the preface to the Declaration, “the pursuit of happiness”, was not just intended by the founders to be protected by the Constitution, it was the reason behind why they structured the government the way they did, that is, as one limited in its authority to those powers explicitly granted to it in the Constitution. The overriding concern was not to create a government here on US soil that could replicate the tyrannies of the crown that they had so recently shaken off. A government authorized by the people to strictly limited authority, they concluded, would be the only way to assure that the central government could not interfere with the individual’s pursuit of happiness.
But of course, what the founders thought of as the government’s role in the individual’s pursuit of happiness (making sure it cannot interfere in each individual’s pursuit without legitimate cause) and what the Times editors think of government’s role in that (legislating or adjudicating in such a way to guarantee equality of happiness as an outcome for all) are two entirely different things, and this may be where you perceive a difference between us. When I say that “the pursuit of happiness” is a constitutional right, I do not at all intend to suggest that things like government provided, universal health care, to take one example, was what the founders had in mind when they structured the Constitution as they did.
Of course, that the central government was potentially the greatest danger to individual rights and that the states were the gurantors of rights is a decidedly ante-bellum view. By the time of the Civil War, people, in the North anyway, were beginning to see that the states could be perpetuators of a system that systematically denied basic human rights to large classes of people and they began to see that the only way to guarantee rights was for the central government to enforce them upon the states, hence the 13th-15th amendments with their explicit grant of authority to Congress to pass laws that would override state laws that infringed upon certain rights which the judiciary would then enforce against the states.
Then there was the New Deal which, although not backed by an amendment, after the Court packing scare, the SCOTUS largely got behind and incorporated into their decision-making. With our judicial system, being case-law oriented as it is, and with stare decisis being at least winked at if not always respected, constitutional law has come to resemble closer and closer the NY Times’ view and the people have very largely accepted New Dealism as the new constitutionalism. Consider the difficulty that anyone has passing even the slightest alterations to Social Security, like delaying the age at which benefits begin. We could no more go back to a day when government wasn’t the guarantor of equality of at least minimum outcome for all than we can presently engage in interstellar space travel (although for different reasons).
My apologies, and I am glad you responded, because in every respect but as to The Times error I agree, and damn it that might make this a bit less interesting, but in fact to me it is not. I didn’t mean to imply that you and I disagree, in fact I think we are pretty much in agreement, on both your comment about a pre-antebellum way of looking at things (and thus my not inconsiderable disagreement with some “states rights” advocates) and the influence of the New Deal era jurisprudence. I was merely using your comment to further explore the issues, not necessarily to take issue with your analysis. A common issue in discussion in comments sections, but nevertheless if I gave you a different impression it is certainly a fault of mine.
In fact, I even agree about some minimal equality of outcome, though many a libertarian leaning commenter would take issue with that. I myself am much more concerned with the growing maze of regulations and subsidies for the goals of elites and the middle class than I am of aid to the poor and least fortunate. In that sense I trace my thinking to the tradition of Adam Smith, Hayek, Friedman, Hamilton, Jefferson and many other classic liberals (and acknowledging their many and varied differences) than to the objectivists or radical libertarians such as Murray Rothbard and the like.
Still, I think my conclusion about the Times pretty close to a necessary conclusion, but even if not, it was sloppy in its structure and language, and plain wrong in its claim that such an implication was justified by historical fact or intent. If we cannot go back, we still should not claim that modern understandings are in the Constitution itself. The editors still need an editor and an improved understanding of what was the original basis for the Constitution. So Randy and The federalist Papers would still be a good place for the Times to start. They can still maintain their understanding of what modern Constitutional Law should be, but it would be refreshing if they actually argued that it is not what was intended, but what should have been. That would be an honest debate, and one that our country could profit from.
Lance,
Sorry. I’m not used to such unqualified agreement. I’m used to spending a day and a half clarifying my position, correcting false conclusions claimed to be drawn from my position, fending off objections and so forth. Force of habit. Heh!
Been there, done that.
Greetings. I discovered this thread via Instapundit and have found it fascinating. I would like your “take” on a couple of things.
Someone once explained “inalienable” right to me as one that can (in the political philosophy sense) be exercised by the individual alone without the involvement of any outside agency. “Life” for instance, cannot in reality be exercised without the “outside agency” of a mother, etc.; but in the context of such as the Declaration of Independence, the individual exercises “Life” by his very nature. Same goes for “Liberty”. Such are endowed, and so come “bundled” with the human creature by virtue of one’s creation. In contrast, a right to a free education is not inalienable because it requires the outside agency of a tutor or school or some-such.
What about “pursuit of happiness” or “property”? Well, here is where I must digress a bit. “Property” in the way Locke and Jefferson, et al, were speaking of it did not mean the tangible item, such as real estate, but rather the right to lord over, or hold title or proprietorship over material things — especially over the means of production of necessary tangibles like land for food.
Was this not the argument of the Civil War, the incongruity that one man’s inalienable right to have property rights in a slave trumped the latter man’s inalienable right to Liberty?
Now, back to “why pursuit of happiness?” Consider, if you will, a monk who “in pursuit of happiness” has renounced material property and taken a vow of poverty.
Another trait of “inalienable” is that not even the self has authority to separate himself from the right. Giving one’s self into slavery was not seen as in the nature of man; and suicide, likewise “unnatural”, was also forbidden. But could it be “wrong” to renounce property? Thus “property” was not on the same plane as Life and Liberty. Elevating the abstraction to Pursuit of Happiness formed a better (dare I say, more perfect) balance.
The state can snuff out the individual’s mortal life, imprison one’s physical liberty, and confiscate title over material things, but how can any outside agency arrest the “pursuit of happiness” of any yet living individual even under mortal duress. Lobotomy? Shock therapy?
Closing on a lighter note, I have always regarded the Declaration (Preamble, not the grievances) as the philosophical description of the “dream house” and the Constitution as the mechanical blue-print. If that leave the Articles of Confederation as a memorandum to clear the stumps and do the percolation test, so be it.
I look forward to enjoying the assembled company’s expansion and rumination of these thoughts.
Thomas;
I think the constitutional argument here, might, for my purposes, be declared a draw.
I worry more in the instance of this particular discussion for the one outstanding exampe of classlessness. In the pages of discussion, only one example shines, not above all the rest, but, as the only one.
In my joining this discussion as an observer, I noted in your post that you said, “I hope that the commentary on this will not degenerate into tut-tut talk of lawyers who want to show their superiority to non lawyers in matters of constitutional exposition.”
Then you exposit, “I have experienced enough of that during my law school years and during my 28 years of law practice.” As opposed to whom? While your statement induces me against it, I feel impelled to congratulate you for your tut-tut demolition of alwyr. You did a fine job of showing your your superiority not only in constitutional understanding but you demonstrated your obviously superior intellect and schooling
by translating into this inferior’s dialect. “(Some say that duh ConstitOOtion is music based on Thomas Jefferson’s July 4th rap.” Then you said, “Is that better, alwyr?”
Thomas, if I may be so familiar, you are the perfect example of those who would use these forums to intimidate and expand their own self image on the backs of others with as legitimate arguments but being less blessed with words. Your 28 years as a lawyer are no better than 28 years as a bricklayer, likely less when it comes to interpreting our founding documents. You aren’t what they were written for.
Gary,
Perhaps you need to rethink what constitutes intimidation. Alawr was dinging me, and I was dinging alawr back. That hardly constitutes intimidation. Perhaps I should have ignored alawr’s ding, but if you think my response was intimidation, I really hope you never have to experience real intimidation in your life.
As to the bricklayer comment, what have I written here that makes you think that I think that lawyers are more useful than bricklayers? My father was a factory worker and security guard, my mother worked as a secretary and then was a homemaker. When I was in college, my father’s company, US Rubber (it was later called Uniroyal) moved the factory down south. I worked several jobs to help keep the family afloat while continuing to go to college (perhaps I am not as polished as elites like you (oh no, there I go dinging someone again!:))) because I commuted to college and continued to be involved in family and community life, as opposed to experiencing the rarefied atmosphere of dorm life and having one’s family support one through college). I am not bringing up my background to claim poverty (I consider myself to have live a truly blessed life), but to gently suggest to you that before you throw around “bricklayer” type comments as if you were dealing with someone from a privileged background, you might want to consider the possibility that it is you who might sound like the elitist (I have noticed that “bricklayer” type comments rarely come from real “bricklayer” types or those who come from families of “bricklayer” types).
I apologize to the folks who run this blog for departing from the main points of the discussion on the NYT and constitutional law; if Gary or anyone else makes a personal comment about me in the future, I will try to ignore it.
Craig R. Harmon noted the New Deal legislation as not “being backed by an amendment.” The Commerce Clause itself in my view should be read to require judicial deference to legislation which Congress has concluded has interstate implications (including legislation that Congress has concluded affects the national economy, even if the regulated action involves seemingly local matters such as growing grain in one’s backyard). I understand that my reading of the Commerce Clause has been challenged as one that would allow the Federal Government to reach into just about every area of our lives. In response, I would ask whether judges are really better arbiters than Congress of the balance between the interests of states and localities in the federal structure and the desirability of enacting appropriate uniform legislation for a big country such as ours. Sometimes I wonder whether those on the right, in the center and on the left are too willing to trust in judges than in the structure of our indirect democracy. I admit to falling often into the notion of hoping judges fix an incorrect result of legislation (with my definition of “incorrect” all too often simply being a result at variance with my political views).
The word sometimes is the key. We all trust judges too much at times not enough at others. The problem is defining some kind of intellectual structure to allow one to make that decision in at least a reasonable consistent manner.
Who doesn’t?
Still, when it comes to the commerce clause, your earlier admonition that our founders were worried about an overweening state should give us pause before endorsing majoritarianism, even filtered through legislatures too much sway. Being a libertarian oriented individual, that is obviously a convenient sentiment when it comes to the commerce clause, so your warning about our own political views being the decisive factor should certainly be considered in judging my caution.
The commerce clause was not merely considered to be a way of regulating trade between states, but also a way of keeping the federal government in that role and not others. To turn it into an excuse for regulating all economic activity (not that you are advocating that, I will try and not assume too much) would be to turn it on its head. Rather than a restriction on the federal government, it becomes a license.
Of course, everything does influence the national economy, so what is to be done? I have no hard and fast answers, much more wise and knowledgeable men than myself have failed at coming up with a true “solution.” I can’t help but think though that the wisest and most true to the language, construction and intent of the Constitution answer would be to reduce the governments power over all but the rules of trade between states, and allow a more federalist approach. Individual states would certainly prove more onerous then the federal government, and frequently less wise, thus this solution may not be as amenable to my preferences as I might think. Nevertheless, it does have the salient virtue of allowing various regulatory regimes to compete. To employ a cliche, we allow the laboratories of democracy to work.
There are many problems with such an approach, along with its virtues. Still, while I cannot with any confidence be assured that it will lead to a better life than treating the commerce clause as justification for regulating anything which one might be able to get through a national legislature, it will have given us some guidelines for our constitutional law and reclaim the Constitution as a document less the subject of political whim, and one treating it as a true working document. One which can be changed, but making the legislature and democratic politics the true engine of that change rather than legal theorists who wish to avoid the actual work of politics.
That is the irony of majoritarianism in deciding the reach of the commerce clause, it is based on removing democratic politics from that decision on what the actual restriction on the legislature should be, and places it in the hands of justices to make the decision to hand this great power to the legislatures. I think the legislatures should have had to go to the people, with all the difficulties such an alteration faced, to make this rather momentous change. Politics on regulation and economic matters would take on a more local character, closer to those who are actually affected by the decisions. That wouldn’t have made them necessarily more wise, but it would have made the changes more in keeping with the Constitutions real structure, and ensured a more stable and less contentious constitutional process. A more stable process would have likely preserved a more stable legal framework, which has numerous benefits.
Of course the genie is out of the bottle, and curing this problem might be worse than the disease at this point. So working in that direction is probably all that we can argue for, assuming we even desire it.
Lance in effect has challenged me to harmonize my concern with overweening government with my approval of judicial deference to Congressional enactments under the Commerce Clause. I am not up to this challenge; in fact, one of the reasons I enjoy blogs similar to this one is to learn more to confront that challenge. I can only provide a partial answer that Lance and others who follow this area closely will recognize as the standard refrain, but which nonetheless bears repeating from time to time: members of the US Senate and House of Representatives must stand for election every six or two years to keep their jobs, but US Supreme Court members must really “mess up” to lose theirs. For example, it would now take a Constitutional amendment to overturn the limitations on punitive damages which limitations the US Supreme Court has in effect made part of our Constitution. Changing federal statutes is not easy, but it is easier than overcoming Supreme Court decisions based on the Justices’ reading of the US Constitution.
This answer doesn’t address Lance’s concerns with majoritarian use of the Commerce Clause to expand endlessly the federal reach. However, I would note that the federal courts do have the Bill of Rights to check an out of control Congress and President. Would that the Supreme Court recognize this more acutely in the area of campaign finance “reform” measures!
Ralph,
I have never been comfortable with any explanation of inalienable rights being those which require no one else for a man to exercise because, indeed, I find there to be nothing that a man can do without others, including come to life (requiring two other persons), continue to exist until one can exercise independent continuing life (some number of years which require some other person to feed, clothe, shelter, and teach those skills which will be required for the exercise of life). Aside from that, one of the things that nature and nature’s God have endowed us with is the instinct to associate with others. We are social beings by nature. It therefore seems odd to limit one’s discussion of inalienable rights to those things that an individual can do unassisted, since we are also created to associate with and depend upon one another.
I don’t carry the discussion much beyond that since, being the social beings that we are, there are no rights so basic or inalienable that, living in a society, whatever shape that society might take, they are not limited to some greater or lesser degree. In other words, if so basic a right as life can be taken by the rest of society under certain circumstances, speaking of any right as inalienable seems unrealistic. Under such conditions, I would argue that ALL rights are alienable.
I prefer to speak of constitutional rights which, it seems to me, using the language of the tenth amendment, are those powers which the people retain to themselves as opposed to ceding to the central, state, or local governments. Within that framework, ALL rights are, to some degree, elastic and will change with time. Whether, within one’s philosophy of rights, state provided health-care qualifies as an inalienable right or not, if the people choose to cede to the government the power to provide universal health care and the power to collect taxes to fund that care, then government provided health care becomes a right and it seems difficult, to me, to think how they might deny such a right to anyone who cannot provide it for him or her self.
Craig,
For the sake of discussion let us agree about rights being so malleable. If so, the question is how to change them (or recognize the change legally?) If people wish to cede these rights (or create them) should it be through a constitutional process, or through courts (urged on by institutions such as the NYT which wishes these rights were in our Constitution) “finding” them there or endorsing a simple legislative determination that these rights exist?
Thomas above claims we can at least change legislators (a practice observed mostly in the breach it seems) but if that is the case, why a Constitution? Why would the Times even refer to the Constitution if it as a document has no bearing other than a touchstone of our aspirations? Judges can unleash new rights, legislators can as well, and both will restrict others because the 10th amendment says we can cede those rights? At this point it seems the actual document is nothing more than a useful fiction we point to because “the People” believe it matters while legal theorists (including amateurs such as ourselves) cater to this faith to move society where we will. The main restraint being the pull and tug of various philosophies over the common law tradition. Both unwilling to just attempt to rule the way they wish (either legislatively or judicially) because adhering to those rules restrain others as much (or hopefully more) than themselves.
I say this not to disparage such developed and negotiated traditions, Britain has no founding document or Constitution in this regard, yet it still functions. I guess if that is the case I just wish that in the public realm people who wish for the law to be seen as such forthrightly said it. Deride our Constitution as serving little real purpose any longer, we are ruled instead, and should be, by the traditions of common law and legislative action. We are and should be a democratic Republic, and the restrictions on our democratic will should be pared back and eliminated. Our founders were humans, not gods, we should not worship them any longer.
That is not my vision, but it seems to me to be the implication of such ways of looking at the Constitution.
The short answer is, yes. All of the above. These things can be changed through referrendum, through legislation or through the courts and I think all three have their place in the process. We are a republic with democratic mechanisms in place for government to seek and obtain the people’s will in all matters, and they should do so. Ours is a government that rules by the consent of those who are ruled and the changes made to that rule should most often be through as direct a method as possible. That is to say, people should cede or retain rights, their rights, through referrenda when those rights will affect a broad range of people. The broader the effect and deeper the affect of a given change, the more important it is that the whole range of people be directly involved. In these cases, the normal legislative route may also be acceptable but, in my opinion, not optimal.
But what of cases where the rights being ceded or retained will directly effect only a small number of people? What then? What of things like marriage between same gendered couples? Gays/lesbians comprise at most ten percent of the population, nation-wide. Is there any hope of ending the present disparagement of rights of such a small segment of the population via either referrendum or through legislation? Gays and lesbians fear not. Their choice of seeking redress through the courts is understandable but frought with peril. Fearing that the politics of marriage and of the rights of such a small number of people whom such a large segment of the population considers to be anywhere from sexual perverts whose behavior should be criminalized to the slight queeziness that many feel, it may not be irrational to suppose that a federal court decision from the SCOTUS alone will be able to deliver rights to them. The peril is that such a ruling will unleash such a backlash as will successfully pass a federal amendment to the Constitution forbidding the marriage of any but one man and one woman, effectively defeating any chance of gays being allowed to marry. The only hope, then, will be to differentiate a civil union legal regime that conferrs the same legal rights and responsibilities that will be an acceptable “consolation prize” for gay-rights hopefulls.
It took a devastating war that split our nation wide open and spilled vast amounts of blood and tears and it took holding the South hostage to accept the post-bellum amendments of face total ruin in order to begin to take back the rights of blacks in this country within a system that had been deliberately set up to favor the slave-holding South. A repeat of this must be avoided at all cost. Ideally, through discussion, in which, yes, the New York Times and the Washington Times and the Sunday Morning TV News rehashers will play a large part, the public opinion at large can be changed to the point that the people of the states will relent and seek legislation that will redress the grievances of the glbt community. It would be hoped that advocates of all sides would be rational, honest, balanced, present the best arguments from their side while dealing honestly with the best arguments advanced by the other side but, well, this is the real world. Little hope of that. :^)
What is the peril? Since we are a democracy which is not limited by the Constitution why would such a thing matter? The commerce clause, the second amendment, all are up for grabs in our democracy. Why would an amendment be anything other than a fleeting statement of opinion at a point in time?
Lance,
I meant, peril from the point of view of those seeking gay rights. As the prohibition amendment proved, what can be done, can be undone but at a cost. The cost of, say, a “Save Marriage” amendment would be different than the costs of prohibition and its subsequent reversal and they would fall upon a smaller segment of society but that does not necessarily make them less harmful. Plus, the chances of reversal of such an amendment, given the fact that it falls upon a comparatively small segment, is unlikely to be reversed nearly as quickly as prohibition. In short, fleeting is a relative term. For those who are denied, fleeting might describe several life-times.
I guess I am not being clear. I understand that the amendment might in fact take a long time to remove, though I don’t think it will come to be. Instead I am referring to the idea that our rights are, or should be, so easily changed, added and subtracted from. You suggest that the Constitution is subservient to the democratic will of the people at all times and on all subjects, that any of the methods I described can be used to alter the meaning of the Constitution irrespective of intent or restrictions on governmental authority. If we acted as if that were true then it would be no more of an issue to alleviate that grievance than to change any other law or regulation, so why would such an amendment be a large threat unless the Constitution and its construction stands outside of normal democratic action?
Lance,
Not all of the avenues mentioned by you are created equal because not all are equally easy to change. A state statute can be changed by many means: a) an amendment to the statute by the state legislature; b) a ruling by the state high court; c) a federal statute; d) a ruling by a federal court; e) the US Constitution. A state high court ruling might be able to be changed by: a) a federal statute if it falls within an area of the federal government’s legitimate constitutional authority; b) a federal court ruling, again if it falls within an area of the federal government’s legitimate constitutional authority; c) an amendment to the state Constitution; or d) the US Constitution. A federal statute can be overridden by: a) an amendment to the statute; b) a federal appeals court; c) the US Constitution. A the Supreme Court’s decisions can sometimes by overridden by a constitutional federal law but the sort of decision, say a SCOTUS decision that the equal protections clause of the 14th amendment reqires that same-sex couples be allowed to marry can only be overridden in one way: by changing the Constitution. Sure, in my way of defining constitutional rights, any and every right is subject to a sufficient majoritarian action but of all those actions, changing a “protect marriage” amendment is the most difficult of all to change. Obviously, not everyone will agree that this would, from the standpoint of a gay rights activist, within my way of thinking of rights, make a “protect marriage” amendment a perilous thing because, as you seem to accept, such reversing such an amendment would be a long and arduous task that might never be overcome.