Wednesday, March 2, 2011

Chidem Kurdas bashing the "Constitution Bashers"

I don't know why some people have this assumption that if people disagree with you about the Constitution, they must not like the Constituion. Chidem Kurdas, of ThinkMarkets, considers people who question her brand of originalism "Constitution Bashers", although she doesn't even manage to successfully articulate their argument.

At issue is her allegation that a lot of people who don't think like her think the Constitution is out-dated because technology has changed. She even cites an example, but apparently misses the point. The argument usually goes that technology has changed since 1787, but human nature hasn't. Originalists can't look for what the founders would have said about things like the internet or airplanes or space flight. They have to reason from analogs and simply infer what the Constitution says about the proper relation of the government to the people. That's usually the technology argument you hear (and that's what her citation seemed to be saying), not "well we have the internet now so the Constitution is an anachronism".

She also gets upset over the notion that people would find the Tea Party push to have the Constitution read "comical". She writes: "I’m not sure why reading the Constitution is considered comical, but I suppose this is because the document is seen as fuddy-duddy." I don't know how you could have a bigger tin ear on the question! It's not that critics had anything against the Constitution! They had a problem with Tea Partiers using it for political theater. It wasn't the end of the world or anything, but I didn't appreciate the Constitution being used as a prop either. Why is it so hard for Kurdas to see this?

What's most ironic is that she goes on to talk about the amendment process, suggesting that if we "non-originalists"* don't like what's in the Constitution and think it's old-fashioned we can amend it. I could say the same of Kurdas! All the things that the Tea Party complains about are derived directly from the enumerated powers - many from the general welfare clause and the necessary and proper clause. A few from the commerce clause, but as I've shared in the past I don't think the commerce clause legitimates as much as it is claimed to. The Constitution was intended as a republican, classical liberal document but it was never intended to be a libertarian document. Many libertarians remark on this. You can't say you agree with the Constitution one day, conveniently ignoring all the non-libertarian passages, and then deny that Congress has its enumerated powers the next. Kurdas's arguments on technology and how old-fashioned the Constitution is are red herrings. If she has a problem with the plain words of the Constitution and the bulk of constitutional jurisprudence, and if she wishes the neo-mercantilist liberal founders had written a more libertarian document, then she's welcome to agitate for amendments.

Until then, I'd prefer not to be called a Constitution basher.

* I hate this term, because I consider myself an originalist. I don't think the founders originally intended a lot of what they wrote to be read the way the likes of Churdas, Scalia, and Thomas read it.


  1. They had a problem with Tea Partiers using it for political theater."

    One of the reasons for the reading of it are the now famous statements by various Democratic congress critters stating that they don't concern themselves with what the Constitution states.

  2. OT:


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