The Gross hypocrisy of Strict Constructionism:

[underlankers.livejournal.com]

I've come to believe the more I read about the idea of so-called strict constructionism that it is a nonsense concept, never seriously adhered to by any of its own titular adherents. The first means by which I come to this conclusion is a very simple one: the origin of the Constitution itself. Y'see the very concept of a United States in Congress Assembled *was* how the USA was born.......under the first Republic run under the Articles of Confederation and Perpetual Union. Each state coined its own money, raised its own armies, and there was no centralized taxation system of any sort. The result was anarchism, economic collapse, and one of the most menacing rebellions in US history, launched by disgruntled vets of the Continental Army who demanded their being paid in response for making the Union as it now had come into being. In response a group of elitist lawyers and veterans of the highest order of societies, charged with a specific purpose, came up with an illegal usurpation of power and rammed it down the throat of the American people. This hypocritical disregard for their own existing system we call the Philadelphia Convention, its product has lasted the entire duration of the Republic sense. The very argument for consistent view of the Founders fails in the mere existence of the current US Constitution itself.

The second argument against it is the most dangerous potential argument to raise in the time of a Presidential election: where, specifically, is it ever specified in the Constitution or in any amendment that a Popular Vote is necessary at all for a Presidential election? It was not until Andrew Jackson's second attempt at the job that a Popular Vote was even held. If simply convening the Electoral College to elect the President is the real original intent of the Constitution, why bother advocating alterations in the Popular Vote and instead not return to the original system of simply having electors chosen by state legislatures in proportion to the population of states convene and like the Roman Senate of old choose the leaders of the Republic for it?

Finally, where does Article III ever specifically enumerate to the Supreme Court the power to decide what is or is not Constitutional? If this does not ever appear (and it really doesn't), then why is it that the Supreme Court holding an illegal power is the basis of the US legal system? Is this not instead of an actual legal system a paradoxical legal illegality? How can any society claiming to be based on laws, not men, wind up having what it decides is or is not law owing itself to the mutual power grabs of two men?

In short, I think that any claim of Strict Constructionism cannot hold up to the candle of logic, reason, or fundamental tenets of the American system any more than cotton candy can last in a long, hot summer. Nonsense is nonsense, and this pernicious concept should be dumped in the garbage bin of history where it belongs. If I were to be cynical, I would in fact note that strict constructionists, by this self-serving and purely hypocritical approach to rule of law on an entirely situational basis of pure personal convenience indeed approach the spirit of the Founders. Not, however, as their religious devotion, however, would lead them to think.

Comments

[a-new-machine.livejournal.com]

Frankly, I don't think you know what you're arguing against, as you've actually argued against both strict constructionism and originalism, which are two vastly different things. SC cares about what the constitution says, in plain text. Originalists care about what the Constitution was thought to mean by those who wrote it (and before you ask, yes, this applies to the amendments, too, so you'll get arguments in originalism over what the framers of the 14th Amendment meant). That's a big point that really hurts your overall argument.

Now, point by point:

In response a group of elitist lawyers and veterans of the highest order of societies, charged with a specific purpose, came up with an illegal usurpation of power and rammed it down the throat of the American people. This hypocritical disregard for their own existing system we call the Philadelphia Convention, its product has lasted the entire duration of the Republic sense [sic]. The very argument for consistent view of the Founders fails in the mere existence of the current US Constitution itself.

Was it illegal? The Articles were dissolved with the approval of the AoC Congress in 1788. While the AoC does say that "there shall be... a permanent and perpetual Union" it does not specify under what structure. No states left the Union during the transition from the AoC to the current Constitution. Thus, for the moment anyway, the perpetual union was preserved. Would it be illegal today to launch a constitutional convention, draft an alternate constitution, and propose it to Congress and the states for adoption? If so, why? In any event, this is not an argument against strict constructionism, because that applies only to the current law of the land, which is the Constitution and laws and treaties enacted thereby. Further, SC doesn't rely on a "consistent view of the Founders," since it doesn't give two bits about the Founders, but only about the text they produced. Think of them as sola scriptura people. You're saying that they're wrong because the Talmud doesn't make sense, which just makes the sola scriptura folks quirk their heads at you in confusion as to what a "talmud" is.

where, specifically, is it ever specified in the Constitution or in any amendment that a Popular Vote is necessary at all for a Presidential election?

It's not, which is why we are actually using the popular vote to elect electors, who then elect the president. I'm sure you know that the original constitution left this up to the states - and that's still how it's done. A state could conceivably return to the legislature-elected model at any time (barring public riots). Again, I think you're making an argument against originalism, not SC. The plain text says that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." The states direct the use of the popular vote to appoint electors. Totally consistent with the text, if not with the early practice.

Finally, where does Article III ever specifically enumerate to the Supreme Court the power to decide what is or is not Constitutional? If this does not ever appear (and it really doesn't), then why is it that the Supreme Court holding an illegal power is the basis of the US legal system? Is this not instead of an actual legal system a paradoxical legal illegality? How can any society claiming to be based on laws, not men, wind up having what it decides is or is not law owing itself to the mutual power grabs of two men?

I've heard it argued that judicial supremacy is problematic, for exactly this reason, from some very knowledgeable constitutional scholars. It's not even a question that's never asked in the modern era - Congress tried to challenge judicial interpretations of the law in the mid-90s, and it ended only after SCOTUS smacked them down in City of Boerne v. Flores in '97. Heck, current primary candidates with multiple wins under their belts (OK, Newt's only got two, but it counts!) don't believe in judicial supremacy. It's hardly a dead argument, and accusing SCs of adhering to it without evidence is rather overreaching. This is, btw, the only argument you've actually made against SC rather than originalism, and I suspect that it's a straw man.

[underlankers.livejournal.com]

That's because to me the two are two sides of the same coin, whatever their theoretical differences. It's impossible to understand a plain-text reference in 18th Century language without understanding the original intent. The idea of a hard and fast divergence of the two is nonsense.

The problem with your statement is that the AOC could only be amended by all 13 states jointly agreeing *and* the Philadelphia Convention was supposed to do exactly this: AMEND THEM. Not create a new document. The idea of making nine states instead of 13 all that qualified was an end-run around this provision to avoid having to work through having done something completely different which is what they did in fact do. The Constitution was a coup d'etat through the means of the legal system more than an actual benefit in its own right.

A fair point and I concede to you that third point.

I'm referring in this sense strictly to the Scalia-Roberts type of Constitutional Fundamentalists who see no problem with the very concept of Judicial Supremacy never directly spelled out in the document they claim to follow. When it's their personal power, they're quite fine with breaking the legal framework they themselves held to be self-evident.

[a-new-machine.livejournal.com]

The idea of a hard and fast divergence of the two is nonsense.

That's a pretty bold assertion, given that there's a huge ideological difference between the two, and they come to vastly different conclusions about the meaning of key terms of the constitution because of it.

the Philadelphia Convention was supposed to do exactly this: AMEND THEM. Not create a new document.

At the state legislature, someone once offered an amendment to a bill that was intended to give transgendered individuals access to bathrooms of their expressed gender rather than born sex. The amendment deleted the entire text of the bill and replaced it with a resolution expressing support for a baseball team. Still an amendment.

he Constitution was a coup d'etat through the means of the legal system more than an actual benefit in its own right.

So, was it illegal or not? Here it's a legal coup, there it was an illegal usurpation of the AoC... make up your mind.

the Scalia-Roberts type of Constitutional Fundamentalists

And here is where I point out that Roberts specifically disavows the idea of comprehensive judicial philosophy, and that his decisions have not engaged in any sort of uniform SC reading of the constitution or statutes. Can you provide me with an example opinion of Roberts' that follows a strict constructionist application of the Constitution?

who see no problem with the very concept of Judicial Supremacy never directly spelled out in the document they claim to follow.

So, I'll give you Scalia might be slightly hypocritical on that point, but identifying one hypocrite is hardly a useful salvo against the entire philosophy, unless you can demonstrate that the belief is widely-held and not currently in dispute. There are certainly SCs who agree that judicial supremacy is, at best, an ancillary doctrine and not a necessary inference.

[underlankers.livejournal.com]

1) Not really. There are plenty of ideologies with supposedly vast divergences where the divergences really aren't that vast at all. This is more Stalinism v. Trotskyism than democracy v. Mongols. To me the sole difference is in phrasing and degree, not kind.

2) And amendments are still not creating an entirely new doctrine and using usurpation of the existing system to ram it through and to hell with what the law actually says.

3) Yes, it was illegal, but it was done through abuse of the legal system, not through the Continental Army pointing a cannon at the legislatures and demanding it be done. That's the difference between a legal and extralegal coup.

4) No, I cannot.

5) So why, then, do they sit on a Court whose power they themselves deem is illegal and unconstitutional?

[a-new-machine.livejournal.com]

1. OK. I still think you're wrong. They're both conservative, but they have very different views of certain things. For instance, Randy Barnett is making a big stink over the necessary and proper clause being two separate restrictions on government power. That's a SC argument. Not only would an originalist likely argue that they were understood as a single element, but they would also recognize that the clause was not a restriction, but a very explicit grant of power. Huge difference there.

2. OK.

3. Abuse of the legal system? How so? Again, I'll ask: would it be illegal for us to draft a new Constitution and circulate it to Congress and the states for approval? If so, why?

5. There's a very big difference between judicial supremacy and SCOTUS's review power being unconstitutional and illegal. For instance, it is very difficult to argue that the Supreme Court has no power to review statutes for constitutionality. This is for the basic reasons that are outlined in Marbury v. Madison: If you're applying the law, and the Constitution is the law of the land, then you have to make sure that the statutes conform to the Constitution, since it is superior to them. That's a necessary conclusion based on the text of the Constitution and its treatment alike. The unsure point that I thought you were attacking is that the Court has the final say in such disputes. After all, why could Congress, as the elected legislature, not be better at interpreting the document? Why not the president, who is sworn to uphold the Constitution? So the mere fact that they sit on a body that reviews laws, in part, for constitutionality isn't necessarily a breach of either SC or originalist views of the document itself, so long as they do not personally hold to the supremacy of their constitutional determinations.

[underlankers.livejournal.com]

1) And to me the huge difference is a mile wide and an inch deep. Both of them are fundamentalist views of what is in the main a legal text. And like fundamentalism both do more harm than good.

3) Because by the very requirements of the Articles of Confederation it *was* illegal. However the new version allows for a Constitutional Convention, so it would not be illegal.

[a-new-machine.livejournal.com]

3. OK, so where does that end, though? Under the terms of the Constitution, the Constitution is legal. You say that it was illegal because of the AoC, but the AoC themselves were illegal fruits of an unlawful rebellion against the sovereign lord of the colonies, His Majesty King George. So why do we care about this illegality, but not that?

[gunslnger.livejournal.com]

I'll take the lazy way out and say that this is what I would write if I had the time.

[kylinrouge.livejournal.com]

The problem with strict constructionists is that they fail to account for advances in society that would in no way be foreseen. Take IP laws with regards to software. The original Constitution would have zero ways to deal with this, none. There is nothing in the text that could possibly address the nuances of software IP and patents. There's also nothing about the internet. People who want to turn back the clock on amendments and the thousands of provisions to account for technological advancements that have zero passing mention in the original text are just picking and choosing which parts to interpret how for their own convenience.

When you start denying the facts of the documents that have been established for over a century, your personal interpretation is a fringe belief spurred entirely by ego.

[a-new-machine.livejournal.com]

I think your example is somewhat inapposite, given that IP law is shaped wholly by Congress. The Constitution doesn't define "Science and useful Arts," "limited times," or even "Authors and Inventors." To me, the much better illustration is this:

Amazon has warehouses and servers in California exclusively. It has management in Washington State who oversee them. A kid in LA orders a product from Amazon. In the process of getting to Amazon's server farm, it travels through Texas and back to the warehouse. The warehouse request is seen and approved by the WA state offices, who process the payment. The warehouse mails the product to the kid. Was that "interstate commerce"?

[vehemencet-t.livejournal.com]

I disagree that the original Union in anyway resembled actual anarchism, as stated.

Also you cite the "free banking system" (I think) as causing economic collapse, but yet centralized banking has been shown to result in collapse (or at least depression) through overinflation and the boom and bust cycle.

That is all.

[underlankers.livejournal.com]

This has never been shown to be the case. In fact US history offers a direct inversion of this thanks to none other than Andrew "Supreme Court Schumpreme Court" Jackson.

[vehemencet-t.livejournal.com]

In what way was it shown to be an inversion there?

Nicholas Biddle himself acknowledged that he fucked with the economy due to Jackson's pressure to make him pay for his attempts to dismantle it.

[underlankers.livejournal.com]

Because the Lincoln Administration began anew the process of centralized banking, a process continued by the Grant Administration, and in the process both established the foundations of a superpower economy. By comparison the decentralized system Jackson built proved cumbersome and unwieldy and embodied by the CSA went into Weimar-level economic collapse and the most totalitarian system built in North America.

[vehemencet-t.livejournal.com]

Lincoln's centralized banking had a key difference from that of Hamilton, however, as I understood it. He didn't borrow the money essentially from a privatized bank but, through the greenbacks, printed them though the government without interest.

[underlankers.livejournal.com]

Hamilton didn't design the Bank of the USA Jackson broke.

[ofbg.livejournal.com]

"where does Article III ever specifically enumerate to the Supreme Court the power to decide what is or is not Constitutional?"

It does'nt. That power was assumed by an early court with the decision called Marbury vs Madison, the text of which you can find at the link. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=5&invol=137

The MvM case itself was unimportant but a few decades later, SCOTUS asserted it's precedence as giving themselves the final say on matters constitutional. Once it was clear they got away with it due to a generous amount of political cowardice or maybe cover it gave to congress, they became unrestrained.

Article 3 Sec 2, the paragraphs that details their 'original jurisdiction' ends with this, "with such Exceptions, and under such Regulations as the Congress shall make."

So congress does have the final say over matters constitutional but they have rarely excercised that power.

I believe the problem is that, at least during periods of our past, SCOTUS and the congress have scratched each others backs by allowing clearly unconstitutional matters go by from each other without a whimper.

The single sentence that is Article 5 makes no mention of simple legislation or court decisions as a means to amend the Constitution, nor is 'legal precedence' mentioned. Yet as it stands today, more than half of what the government spends our money on is not enumerated in the 'forgoing powers' and thus is left to the states or the people by the 10th Amendment.

[a-new-machine.livejournal.com]

Article 3 Sec 2, the paragraphs that details their 'original jurisdiction' ends with this, "with such Exceptions, and under such Regulations as the Congress shall make."

So congress does have the final say over matters constitutional but they have rarely excercised that power.

Amusing that this comes directly after a discussion of Marbury, and yet you failed to realize that the quoted portion applied to their appellate jurisdiction, not original. Marbury was, after all, also a case about how Congress could affect the court's original jurisdiction, and their power was found lacking.

Also, where in the Constitution is Congress given final say over the Constitution?

[ofbg.livejournal.com]

""Also, where in the Constitution is Congress given final say over the Constitution? "

My statement was incorrect. Studied it a bit more. You are right. Appellate, not original. Thanks.

[a-new-machine.livejournal.com]

Even if it were the original jurisdiction, their entire ability to decide constitutionality is generally (Marbury excepted) exercised in an appellate context. I kinda thought you were saying that "original jurisdiction" was how they decided on constitutional issues, so the bit about original v. appellate wouldn't matter (if I'm right that you think the exceptions clause means Congress has "final say" over constitutionality). The question remains, why do you think the exceptions clause puts final say in the hands of Congress?