McDowell's Folly

The following is a transcript recovered from an old C4L blog that I maintained during my heady days as a minarchical statist. Originally published on 25-October-2010

Table of Contents

1 Commence Fisking

An associate linked me to this op.ed knowing it would find a special place in my heart. I would like to address this response to Jade McDowell (who I assume is a "Miss McDowel"… apologies if I'm wrong).

Before we begin, I would like to clarify that I am not a Tea Party member. I do not associate with the Tea Party in any way. I have, however, been easily confused for a member of the Tea Party for reasons that I believe will become clear throughout this blog post.

Ms. McDowell, you write as follows:

When Supreme Court Justices Stephen Breyer and Antonin Scalia debate, it's usually about interpreting the Constitution. Should the court, as Breyer argues, interpret the Constitution as a "living" document that must sometimes evolve with the times, or should they interpret it according to Scalia's view that the founders' original intent is the only thing that matters?

This is a false dichotomy (or false dilemma). The function of the court is only to interpret the law. To ask if that is the only thing that matters detracts from the real question: Is there any other reason to have courts?

If the literal meaning of text in the law cannot be used to ascertain its meaning, we have a serious problem. How different is the act of providing new definitions for the vocabulary of laws from the act of legislation? If law is not permitted to mean the same thing when it's written as when it's enforced or ruled upon, what is the point of the act of legislation?

Laws are written to be understood by those who live under them. To change such meaning or effect of laws without the process of reasoned debate and consensus by duly appointed representation obviates Congress and elections all together.

The Constitution, after all, was written 223 years ago to govern a small collection of mostly rural states, not a modern world power. Surely the Founding Fathers couldn't possibly have foreseen all the needs of the nation today.

We have evidence that people like Alexander Hamilton wanted the United States to be a world power. He was present at the Constitutional Convention. Being a document of collective authorship, it's very likely that a variety of intents were present as COTUS was written. While there were those who preferred humble, agrarian society, they were not the only people influencing the Constitution's makeup.

One does not need to presume that the "Founding Fathers" were omniscient nor clairvoyant enough to perceive all the future needs of the Union. To assert that those who value the Rule of Law as more than just suggestions or anachronisms are deifying the founders is a straw man argument. The founders' ignorance about the present day is immaterial when assessing the Constitution's validity or the validity of any legislation made under it.

"If you go back to the end of the 18th century and you examine what the founders thought, say, about the Commerce Clause, they didn't think of the Internet, they didn't think of television, and they didn't think of the radio or automobiles," Breyer said in a 2006 debate against Scalia.

While it is true that there is no evidence that anybody in the Constitutional Convention could have forseen the makeup of commerce, culture, and politics today, this is argument is still a non-issue.

The commerce clause did not seek to address the means by-which we engaged in commerce, merely the protection and stability of commerce itself. While we do exchange goods and services more rapidly and communicate instantaneously, commerce is still taking place and laws are still required to ensure such activities can remain regular enough that people can make careers around them.

That's why the newest Tea Party pledge to make Congress explain how every decision they make is authorized by the Constitution seems silly.

The very existence of Congress is predicated upon the Constitution. Why is it silly that an institution that derives its existence from COTUS should demonstrate the justifiability of its actions under the same document? If a man were to deliver a pizza to you and upon delivery, attempted to give you a foot massage, would it be silly to ask him "did I tell you to do that?" Someone employed for one purpose and presuming to serve another is indeed out of line.

People elect their representation according to the process established by COTUS. When the people do so, it is understood that they will legislate from the same grounds. Should Congress fail to fulfill such an expectation, the electorate are left with a distressing degree of uncertainty about the kind of government they get when they vote.

Is it wrong to ask that we get what we paid for?

If most Tea Partiers had their way, we would get rid of half the government, including "entitlement programs" and the Departments of Transportation, Agriculture, Education and Energy.

This may be an appeal to antiquity/tradition. The mere existence of an institution does not justify its existence. Can you demonstrate that these institutions have satisfied a need that can't be satisfied by any other cheaper or more effective means?

The burden of proof rests on those who assert that government action is necessary. If you claim that such departments are worth subsidizing and upholding by force of law, you must be prepared to justify such a claim.

The Constitution is a vitally important document to America. You could say the Constitution is America. But it is shortsighted to get rid of institutions and laws that make our country a better place on the sole basis of whether or not they're specifically included in the Constitution.

Again, you must justify the assertion that these departments make America a better place. We observe (as you admit here) that the existence of these institutions is a violation of law (because they are powers not delegated to the federal gov't). It seems even more vital now that you demonstrate how breaking the law (by creating unauthorized institutions) is justified.

Tea Party candidate Sharon Angle thinks Social Security and Medicare are unconstitutional, even though they're the only reason thousands of elderly citizens, including my grandmother, are able to live on their own.

It is indeed the case that people depend on SS and Medicare. This bears no relevance to the fact that they are illegal government programs. If SS had never existed, people would not have organized their finances in a manner that depended on those sources of income.

Many people had built their finances around the illegal promises made by Bernie Madoff. Some depended on the income from his pyramid scheme to fund their own retirements. Does the fact that people need that stolen money change the fact that Bernie Madoff broke the law? Does the fact that people need help with their retirements mean that Madoff should not be in prison or that his fraud should be permitted to continue?

You've introduced another red herring and wrapped it in the appeal to pity fallacy. Sharon Angle's statement is true. Truth cannot be rejected simply because people have been defrauded by the federal government.

Senate nominee Joe Miller said unemployment benefits are unconstitutional, even though they're the only thing between many children and starvation.

Another appeal to pity. Moreover, do you have any evidence to support the claim that unemployment benefits are the only thing that prevent immanent starvation?

Rand Paul wants to abolish the Department of Education, his father wants to scrap the entire Federal Reserve, and the list goes on.

For many years, states (not the federal government) subsidized education. There's sound reason to believe that you, yourself, Ms. McDowell are attending a private (read: not publicly funded) school. If education is clearly made possible by means other than federal government and moreover, we know that it is illegal for the federal government to involve itself in education, why is it so wrong that we seek to uphold the law?

Now the Federal Reserve is a whole other can of worms. Much smarter people than ourselves have debated that a very long time. Whether there is a prevailing need for such an institution in our economy is a big discussion. But whether the Fed is legal is far less ambiguous than any of these other gov't programs you've mentioned. Consider Article 1 Section 10 of the Constitution of the United States:

No State shall… make any Thing but gold and silver Coin a Tender in Payment of Debts…

Now tell me how it is possible that states are only allowed to accept gold and silver as payment of debts when federal legal tender laws explicitly forbid trading on anything other than fiat paper? The existence of the Fed makes it expressly impossible to obey the law. Even in the most flexible "living document" interpretation of it.

I'm not saying we should ignore the Constitution.

It kinda sounds like you are. You keep saying that gov't action that began by ignoring the Constitution is a good thing and that those who demand we adhere to the Constitution are somehow wanting old people and children to starve. At the very least, you're inviting people to make the assumption that ignoring the Constitution has made America better than it would be had we upheld the law.

Sometimes I think Breyer goes too far in his willingness to stray from the foundations of our government. Scalia does have some good points about the dangers of letting a constantly revolving group of politicians and judges arbitrarily decide what rules and values govern our country at the moment. We should follow the guidelines of the Founding Fathers as closely as we can. But limiting ourselves to governing an infinite number of situations by a finite number of words doesn't seem logical.

Just because something isn't included in the original 4,400-word document doesn't mean it's not a good idea.

Fortunately for America, that's not what proponents of the Rule of Law are asking. I hereby admirer the vigor and skill with-which you slew the straw man and invite you to consider the actual argument for Constitutional Law.

Consider Article 5 of the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

We have a beautiful and legal solutions to all the shortcomings of the Constitution, all the shortcomings of the men who drafted it those centuries ago. If we ever find that the law prevents us from satisfying a certain need, we can change the law. You can alleviate all debate over whether your grandma's SS is legal by simply making it expressly legal through amendment.

When you debate amending COTUS to allow SS/Medicare, Education, etc., the opposition can no longer argue against you with COTUS. The debate is forced to confront only the merits of those programs themselves -- which gets you far closer to getting what you want than attempting to cherry-pick which laws ought to be enforced and which oughtn't.

There is a difference between something being "unconstitutional" because the Constitution specifically forbids it, and being unconstitutional because it isn't specifically mentioned.

The Constitution was ratified under certain pretenses. If you don't believe me, go read the Federalist Papers. Those who argued the validity of the Constitution did so by asserting that anything that isn't "specifically mentioned" is, in fact illegal. COTUS would never have become law had it not been understood that the powers of the federal government are confined exclusively to those enumerated in constitutional text.

Small, enumerated powers are okay because new ones could be added by amendment whenever we needed them. All the imagined failings of strict adherence to COTUS are already accounted for. Our modern, industrialized world power can easily obey the law as it was written because it was written with clear provisions for modernization.

The originalists are right in saying the Supreme Court must interpret the Constitution by the framers' intent, but we must let their intent for the overall purpose of the document guide us more than what they were thinking when they wrote individual clauses.

Outside of the purview of court rulings, I'm inclined to agree. Congress should indeed consider the overall sentiments and aims of the framers when they review legislation and the amendments that may be necessary to support them. Courts, however, need more stability than creativity; they must be judicious, careful, and factually motivated. The passions and ambitions of well-meaning politicians should be held at bay when discussing the actual law.

Accordingly, literal and direct meanings of the law are all the courts ought to review. The further you venture from that, the further you venture from the separations of power inherent in the Constitution.

If we believe the framers' intent was, as the preamble states, to "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity," it shouldn't matter whether or not they actually envisioned the Department of Transportation funding bridges or regulating motor vehicle safety. If it promotes the "general welfare," isn't that what the founders cared about most?

What I think you may be missing is that the framers considered the Constitution complete (contingent upon the promise of a bill of rights) as it was written. They considered the general welfare of the Union satisfied with all the delegations of power they'd enumerated. The preamble says "because we want these things, the following individual clauses are law…" Naturally, if those clauses failed to provide those things, they gave themselves (and future generations) a solution in Article 5.

Nowhere in the preamble or anywhere else in the Charters that founded our government do they say inconvenience to the government can invalidate any clause of the Constitution. Even if the law inconveniences a good cause. If the cause is indeed just, it shouldn't be hard to gain the consent of the people to amend the Constitution to permit such a goal.

Scalia would argue otherwise. When discussing affirmative action as part a 2009 debate with Breyer, he said "We're not here to make a happier society. We're here to determine what the people were thinking when the 14th Amendment was ratified."

Please don't interpret this as a blanket endorsement of Justice Scalia's entire career. He's trying to stay professional. He's being the guy who delivers pizza and does not attempt to massage your feet. The role of a judge is to ensure that the law is being interpreted and applied correctly. To ask him to do much more is to ask him to violate the separations of power.

That seems worrisome. I think I would rather have a happier society than stick doggedly to the exact words of the framers, consequences be hanged.

Speaking of worrisome! You've created another false dichotomy. Happiness and the Rule of Law are not polar opposites or in any conflict whatsoever (unless you're unhappy with laws aimed at protecting peoples' happiness from politicians who vote for bills they'd never even read).

The trouble with happiness is that it's such a subjective thing. There is no one-size-fits-all solution to what makes people happy. Attempting to force one man's happiness upon all others can quickly obliterate happiness for everyone.

Allow me to respond to your hyperbole with more hyperbole: Consider the possibility that some people may think that shooting skeet while surfing would be the ultimate form of happiness. Should we legally endorse this notion of happiness transparently of the law? Consequences be hanged indeed!

Maybe "unconstitutional" isn't such a bad word after all.

Maybe. It may very well be that Rule of Law advocates like myself take this to an unwholesome extreme. It may be the case that you actually can have benevolent dictators who answer to their own passions and prejudices with perfect equity. It may be the case that ignoring law makes everyone safer and more prosperous. I could be totally wrong in believing that it's easier to obey the law when the text means exactly what it means. It may make me a freak to want to obey the law without having to pay an army of attorneys to hammer out the details of what, precisely that means. It may be moronic of me to wish that we could know the law without having to bring someone into a trial, costing them insane amounts of time, money and dignity while we bicker about it.

What can I say? I'm too insane to indiscriminately hang anything -- consequences especially.

Date: 2012-09-22 09:59

Author: Anthony "Ishpeck" Tedjamulia

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