Editore"s Note
Tilting at Windmills

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December 30, 2010

OPEN TO INTERPRETATION.... For their first bit of pandering to a confused party base, conservative Republicans will kick off the 112th Congress by reading the Constitution out loud. There's nothing especially wrong this, of course, but it's a rather meaningless stunt.

But wait, there's more. After reading the document aloud, Republicans will then force House members to include a statement from bills' sponsors "outlining where in the Constitution Congress is empowered to enact such legislation."

Ezra Klein asks a good question: "What's the evidence that this will make legislation more, rather than less, constitutional, for whatever your definition of the Constitution is?"

My friends on the right don't like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. [...]

In reality, the tea party -- like most everyone else -- is less interested in living by the Constitution than in deciding what it means to live by the Constitution. When the constitutional disclaimers at the bottom of bills suit them, they'll respect them. When they don't -- as we've seen in the case of the individual mandate [as part of the Affordable Care Act] -- they won't.

Quite right. The rhetoric about constitutional fealty from the right of late has taken on a certain childish quality -- the founding document supports their preferred policy goals, because they say so. It's the basis for this legislative push -- prove your legislation is constitutional, by including a statement saying it's constitutional.

This is terribly silly. If constitutional law were easy and straightforward, watching the Supreme Court would be exceedingly dull -- the justices would hear a case, read the document, and issue one 9-0 ruling after another.

But that's not the case. Interpreting 18th-century text, applying it to 21st-century law, and considering how and whether to consider framers' intent, context, and forethought is inherently tricky. The far-right Republican Party and its activists are convinced that they know what is and isn't constitutional now -- even on policies where they believed the exact opposite up until extremely recently -- but their rhetoric is painfully shallow.

As Ezra added, "To presume that people writing what they think the Constitution means -- or, in some cases, want to think it means -- at the bottom of every bill will change how they legislate doesn't demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe."

To reiterate a point from the other day, I'd add that all of this is part of a larger, misguided push intended to show that conservatives are the Constitution's true champions.

But there's a problem with this: it's crazy. We are, after all, talking about a House Republican caucus with leaders who support allowing states to overturn federal laws they don't like.

In recent years, congressional Republicans haven't just endorsed bizarre legal concepts; they've advocated constitutional concepts that were discredited generations ago.

Worse, they have ambitious plans to shuffle the constitutional deck more to their liking. During the campaign, we heard from a variety of bizarre candidates, many of whom won, who talked about scrapping the 17th Amendment, repealing the 16th Amendment, getting rid of at least one part of the 14th Amendment, "restoring" the "original" 13th Amendment, and proposing dozens of new amendments.

Similarly, these same officials intend to radically transform the country as we currently know it, identifying bedrocks of society, and declaring them not just wrong, but literally unconstitutional.

For these guys to somehow claim they've cornered the market on constitutional fealty is ridiculous, and arguably, backwards. Stunts and legislative gimmicks won't change this.

Steve Benen 2:20 PM Permalink | Trackbacks | Comments (44)

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Comments

As usual, batpoop-crazy and terminally incompetent Republicans will over-reach right out of the gate - and keep on over-reaching - to find themselves swept out of power in two years in a tsunami wave of public disgust and well-deserved contempt from thinking people.

Then the Democratic Party will once again be tasked with cleaning up the GOP raging mess, which will leave the GOP 100% free again to finance big lies to sell to a sizeable segment of a dumber-than-shit public who will once again vote them into power, rinse and repeat.

Posted by: June on December 30, 2010 at 2:28 PM | PERMALINK

This reminds me a lot of religious fundamentalists who insist on reading the Bible literally. They actually pick and choose what they want. (For example,I don't know many fundamentalists who live by old testament dietary laws.) They also miss the spirit and reason for the rules.

But unfortunately, they manage to appear to be more sincere and religious/patriotic than people who have a more sophisticated understanding. I think it is because the sophisticated view acknowledges that interpretation is occurring and that implies that the person is knowingly picking and choosing what to believe.

Posted by: Objective Dem on December 30, 2010 at 2:30 PM | PERMALINK

We were founded to be a nation of laws.
Well, time goes on, circumstances change, and the laws must be adjusted to keep them fair, or pulled off the books and rewritten.

These Contitutional Litiralist's think that it should be revered, and considered to be infallible, as if it were like the Bible, which they believe was written by God himself, and not a bunch of men decades and centuries later.

If the US COnstitution were perfect, why would the Founding Fathers have allowed AMENDMENTS, you literal dumbasses?
Hell, EVEN THE BIBLE WAS AMENDED! If THAT were perfect, why would you have needed a New Testament?

And a SCOTUS Justice will do the leading. Scalia! (Hock & spit 3X's,).

Posted by: c u n d gulag on December 30, 2010 at 2:30 PM | PERMALINK

For their first bit of pandering to a confused party base, conservative Republicans will kick off the 112th Congress by reading the Constitution out loud.

Probably be the first time any of them ever read it. Boy, are they gonna be bummed when they find out it doesn't mention God.

Posted by: kc on December 30, 2010 at 2:32 PM | PERMALINK

The state nullification issue presents some interesting sidebars. One of which is that all but a few states are carved from Federal lands. Any such state that chose to nullify could be voided as a state, the land reclaimed, and another state inserted in its place.

I can think of s few worthy candidates.

Posted by: Mudge on December 30, 2010 at 2:34 PM | PERMALINK

Where the hell in the constitution does it say that legislators have to justify their bills as being constitutional???

Put that on the bottom of your fucking stupid rule, assholes!!!

Posted by: strictadherent on December 30, 2010 at 2:37 PM | PERMALINK

The Dems should just issue every congressman a rubber stamp that says "To Promote the General Welfare" and be done with it.

Posted by: martin on December 30, 2010 at 2:38 PM | PERMALINK

Wait'll they get to THIS part: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Posted by: kc on December 30, 2010 at 2:38 PM | PERMALINK

You are missing the entire point of what is going on in the GOP Congress. They are hiring business lobbyists and passing rules to enable budget-busting tax cuts for the rich. That is their real agenda. They need to do SOMETHING for show to entertain and distract grass roots Tea Partiers, while passing out public money to their billionaire friends and taking the gloves off of businesses and Wall Street. Stuff like reading the Constitution and holding investigatory hearings is designed for media coverage to appease Tea Partiers with froth -- while the real business goes on behind the scenes.

Democrats and liberal bloggers should stop taking the bait here. Stop highlighting and debating the surface stuff and concentrate on critiques and positive goals that really matter!

Posted by: Theda Skocpol on December 30, 2010 at 2:39 PM | PERMALINK

Once their statehood's are dissolved, let's see if France is willing to buy back the territory from the Louisiana Purchase, and if Russia would like Alaska back. Next,Mexico can have Texas back we don't need no stinkin pesos for that rat poop bunch. Let's keep California. They have legalized medical marijuana...

Posted by: stevio on December 30, 2010 at 2:42 PM | PERMALINK

June: finance big lies to sell to a sizeable segment of a dumber-than-shit public who will once again vote them into power, rinse and repeat

Republicans actually learned it from the shampoo companies: tell a lie long enough and most people will believe it and buy twice as much shampoo as they really need.

Posted by: credence on December 30, 2010 at 2:44 PM | PERMALINK

to my mind, this movement represents something like a religious desire for foundations. it's like luther - sola constitutiona! indeed, they (ironically, like scalia et al) seem to believe in some kind of constitutional originalism, which does not take the hundreds of years of interpretive history into account, at least transparently. it's embarrassingly naive, from a hermeneutical standpoint.

Posted by: invisible_hand on December 30, 2010 at 2:44 PM | PERMALINK

Selective fundamentalism is the curse of the True Believer. For every holy writ and foundational authority, there's a million squabbling fanatics deciding what each word means (or doesn't mean). It's only by making peace with the core ambiguity of life itself that you can escape this plague. But what would politics be like without every self-styled protector of sacred texts blowing up the temple in order to save the altar.

Posted by: walt on December 30, 2010 at 2:47 PM | PERMALINK

As numerous other commenters touched on above, this is part of the ongoing effort by the right to turn the living Constitution into a dead religious talisman, to be held at arm's length, revered as holy and unchanging and only to be read & interpreted by a priestly caste, i.e., Republican politicians.

Posted by: Gummo on December 30, 2010 at 2:48 PM | PERMALINK

they are well aware this is theater. if you look at the details of Cantor's memo, it had examples of what was acceptable as a "statement of Constitutional basis." Included were short but sweeping declarations that the proposed legislation was under the Commerce Clause. Something so broad and disputed (usually by Republicans themsevles) is meaningless. But by the new leadership's own memo, it would suffice. This is the worst type of the bureaucracy they claim to hate: government rules that require checking off a box, but with no substantive value.

Posted by: zeitgeist on December 30, 2010 at 2:49 PM | PERMALINK

Remember that video a few weeks back of Sarah Palin confronting a schoolteacher who had greeted her with the sign "Worst Governor Ever?" When the woman asked Palin why she'd walked away from her elected office halfway through her term, Palin argued that she had more important work to do, "travelin' around the country to see if our elected officials are followin' the Con-sta-TOO-shun!" This is Monday morning quarterbacking, but I wish the teacher had responded by asking Palin "What is article 1 of the Constitution?" I'm sure she wouldn't have known, and would have tried to complain that this was some sort of elitist gotcha question. Does anyone seriously believe Palin has ever read the "Con-sta-TOO-shun" even once? She seems to think there's something called a "Department of Law" that can protect the President against investigations, fergawdssake.

Palin's fetishization of a document she knows nothing about is pretty common for the tea party crew.

Posted by: T-Rex on December 30, 2010 at 2:50 PM | PERMALINK

Oh, this'll be fun. Where in the Constitution does it provide for depreciation for business expense deductions in the same fiscal year for Schedule C entities?

Stupid gimmick is stupid.

Posted by: anonymouss on December 30, 2010 at 2:52 PM | PERMALINK

True, the Constitution can mean many different things to many different people. But there is a range of plausible interpretations, and the Tea Partiers fall way outside that range. From the frame of 1787, their reading is a bizarro mix of antifederalist (states' rights, anti-tax) and Tory (unlimited war powers) ideas that the founders overwhelmingly rejected. So the whole enterprise is a twisted mythmaking operation designed to reconcile James Madison with John C. Calhoun and Ayn Rand.

The left must fight this craziness directly--too often we fail to see ourselves in the founding when we are its true heirs.

Posted by: RMcD on December 30, 2010 at 2:53 PM | PERMALINK

There is nothing stopping Republicans from voluntarily including such statements with any bills that they sponsor. Why don't they make it optional and see how that works out for them.

Posted by: Left Fielder on December 30, 2010 at 2:58 PM | PERMALINK

As usual, batpoop-crazy and terminally incompetent Republicans will over-reach right out of the gate - and keep on over-reaching - to find themselves swept out of power in two years in a tsunami wave of public disgust and well-deserved contempt from thinking people.

To paraphrase Adlai Stephenson, there aren't enough thinking people in the US to manage this. This is, and has been for at least half of my life, pure Idiot America.

-Z

Posted by: Zorro on December 30, 2010 at 3:00 PM | PERMALINK

Now wait.

Is this little statement to be part of the actual text of legislation? If so, better warm up the conference committees--the Senate has no such requirement so every freekin' bill is going to need to be resolved in conference, yes?

Posted by: Quaker in a Basement on December 30, 2010 at 3:02 PM | PERMALINK

What difference does it make if the GOP wants to include the provision of the Constitution that they think justifies their bills? For the next 2 years no Democratic sponsored bill will be considered in the House anyway.

Posted by: terry on December 30, 2010 at 3:05 PM | PERMALINK

I assume none of these constitutional fundamentalists will be flying any time soon. I have looked and looked and looked but nowhere can I find authorization for the federal government to control air traffic in this country.

Posted by: wordtypist on December 30, 2010 at 3:06 PM | PERMALINK

Me's is jus glad the constapation allows me to quit my job and whore out my retarded daughter jus like that red neck broad dos wit her retard chillen do in Asslascunt. Ima gonna be at the bus stop within my retard daughters waitin round for some blk dude to screwn hern tonight if'n any right wingers wanna do her for five bucks youn can join us!

Posted by: Clem McInbred on December 30, 2010 at 3:11 PM | PERMALINK

In practice, the only thing this requirement does is increase the burden on the House's Legal Counsel office, because they will be the ones that have to do the research and sign off on the bill statement that it is or isn't constitutional. It may therefore also have the effect of increasing tension between those lawyers and the GOP, as the lawyers will inevitably reach some conclusions with which the GOP will ideologically disagree.

Case in point (as Klein's original post notes): the Affordable Care Act contained such a statement within the text of the bill (re: interstate commerce). That certainly didn't stop the GOP from filing suit (and many amici briefs), now did it?

Posted by: jsj on December 30, 2010 at 3:15 PM | PERMALINK

Well, this horse is almost dead, so I'll finish it off.

"Written more than 200 years ago, the Constitution is not a clear document-" Ezra Klein

Like another document, written over 2000 years ago, and ALSO not a 'clear document'. But that hasn't stopped pulpit pounders from telling us what it says. . .

Posted by: DAY on December 30, 2010 at 3:17 PM | PERMALINK

How about if they just get the Supreme Court to review every fucking bill they consider? Clarence Thomas looks pretty bored whenever I see him?

Posted by: hells littlest angel on December 30, 2010 at 3:18 PM | PERMALINK

The President will wipe the floor with them.
Howling Progressives are no fun to mock. Laughing at crazy people who think they are sane is better.
The best part is that many are so poorly educated that they they are on to something.

Posted by: hornblower on December 30, 2010 at 3:20 PM | PERMALINK

This stuff isn't really funny or crazy.

In the 1910s and '20s the Supreme Court regularly struck down child labor laws -- child labor laws! -- because they were not authorized by the constitution.

That changed in 1937 after the court-packing threat. Conservatives see 1937 as a illegitimate constitutional coup, in which Roosevelt improperly "rewrote" the document to put us on a road to serfdom.

They want to get back to pre-1937 thinking. The implications if they are successful would be staggering.

Posted by: harokin on December 30, 2010 at 3:24 PM | PERMALINK

Most legislation, or at least most important legislation, already contains something like "used in interstate commerce" somewhere in it to indicate that it's permitted by the Commerce Clause, especially since United States v. Lopez. Requiring drafters to say "This Bill is permitted by the Article I, Section 8, Clause 3 of the Constitution" instead changes nothing whatsoever.

Posted by: RS on December 30, 2010 at 3:31 PM | PERMALINK

On a practical level, Ezra's right and this changes nothing. Conservative are playing the long game, however. They are emphasizing that the U.S. constitution gives the federal government only limited and enumerated powers -- they are trying to instill that concept into the minds of the American public. Soon they will have a catchy Schoolhouse Rock-type ditty about how limited the powers of the federal government are, so they can "educate" the next generation about that concept.

Posted by: harokin on December 30, 2010 at 3:38 PM | PERMALINK

I'm a strict constructionist to, to wit:

The NRA on strict construction really is insistent;
So here is my proposal, it is thoroughly consistent
With how things were in olden days : each soul may have a gun
So long as it’s the type they used in 1791.

Posted by: jrosen on December 30, 2010 at 3:39 PM | PERMALINK

http://www.cato.org/pubs/journal/cj16n1-11.html
in United States v. Butler (1936) and Helvering v. Davis (1937). In Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view (almost in passing) that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power. Sorenson perceives correctly that virtually all governmental activity involves the expenditure of money; accordingly, there is little difference between Hamilton’s view and Crosskey’s position that the General Welfare Clause represents a plenary grant of power.

Any doubt remaining after Butler as to the scope of the General Welfare Clause was dispelled a year later in Helvering. There the Court defended the constitutionality of the 1935 Social Security Act, requiring only that welfare spending be for the common benefit as distinguished from some mere local purpose

Posted by: Kill Bill on December 30, 2010 at 3:42 PM | PERMALINK

I find it somewhat humorous that the RW wants to mandate private social security accounts to money managers but doesnt want health insurance mandates where the majority of the funds come not from the government but from the workers wages.

If they kill health insurance reform then they will also kill off one of their other prizes. So basically I think this is just bowing to the parochial base...IE another political canard.

Posted by: Kill Bill on December 30, 2010 at 3:49 PM | PERMALINK

I wonder if they will skip over the part that says to provide for the "general welfare." Or will their brains implode as those words are spoken aloud?

Posted by: Gene on December 30, 2010 at 4:16 PM | PERMALINK

well, actually, as a religious jew, especially in light of the work of robert cover, i can relate quite comfortably with the constitutional system, since it, like the talmudic/rabbinic tradition of my community, is based on aggregated interpretation.
the "bible" as such is not actually all that important to traditional judaism; it serves as a grounding text for the far more important interpretive legal and ethical conversation happening around (literally, on the page) and through it.
thus, i have a personal stake in pushing back against this taboo-like foundationalism, since it demeans the very interpretive project which i find so valuable about the constitutional system.

Posted by: invisible_hand on December 30, 2010 at 4:18 PM | PERMALINK

Somebody wake me when conservatives come 'round to the notion that a standing army is unconstitutional.

When that happens, I'll rush out and buy a horse so I can join up with the state cavalry.

Posted by: Quaker in a Basement on December 30, 2010 at 4:19 PM | PERMALINK

Well, there goes the Air Force. The Constitution authorizes the Congress to raise an "army" and a "navy." It says nothing about an air force.

Of course, if you revert to the "common defense" mentioned in preamble, you also open the way to all the Democratic progarms that "promote the general welfare." So if health care violates the Constitution, so does the air force.

And if the Air Force is unconstitutional, then wouldn't veterans benefits for people who have served in the Air Force also violate the Constitution? To say nothing of the Air Force Academy. Guess I picked the wrong service back in the day.

Posted by: Edward Furey on December 30, 2010 at 6:15 PM | PERMALINK

I suspect that the purpose is to FAIL to find constitutional support for every bill that is put forward that does not comply with a literal reading of the Constitution.
No funding for anything that is not explicitly addressed in the Constitution.
Goodbye to everything but commerce.

Posted by: thebewilderness on December 30, 2010 at 6:18 PM | PERMALINK
But wait, there's more. After reading the document aloud, Republicans will then force House members to include a statement from bills' sponsors "outlining where in the Constitution Congress is empowered to enact such legislation."

This is -- and its going to be a shock to regulars here to here me say this about something coming from that party in Congress -- a phenomenally good idea, for the same reasons that regulations reference the statutory authority which authorizes them.

It doesn't improve the quality of the substantive portion of the law, but it does improve the ability of a person encountering the law to follow it up to the highest law and see the source of authority. Its an improvement in transparency that is regularly used in government acts below the legislative level, and applying it at the legislative level makes perfect sense.

Further it will make the hypocrisy of those who selectively argue for narrow interpretations of Constitutional powers of government when their opponents recommend measures but who themselves like to propose bills that, while motivated by different policy goals, can only be Constitutionally rationalized by expansive interpretations of the same provisions.


Posted by: cmdicely on December 30, 2010 at 7:03 PM | PERMALINK
Oh, this'll be fun. Where in the Constitution does it provide for depreciation for business expense deductions in the same fiscal year for Schedule C entities?

Art. I, Sec. 8, Necessary & Proper Clause along with Amendment XVI power to tax income from whatever source derived without apportionment among the States.

What do I win?

Posted by: cmdicely on December 30, 2010 at 7:09 PM | PERMALINK

Where in the Constitution does it say that congress has the power to read the Constitution aloud!

Posted by: gocart mozart on December 31, 2010 at 12:35 AM | PERMALINK

The Anti-Federalists lost in 1788 and again in 1865. Do we really have to go through this debate again?

Posted by: Seould on December 31, 2010 at 4:30 AM | PERMALINK

I've decide to utilize my marginal bully pulpit in defense of what Ezra Klein was implying. He obviously was not clear enough, perhaps an analogy would do the trick :

Ezra Klein In The Cross-Hairs Of Right Wing Outrage

Posted by: Ryan Colpaart on December 31, 2010 at 12:20 PM | PERMALINK




 

 

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