Monday, September 10, 2012

I agree completely with Mike Shupp on the Constitution, but would frame it differently

Mike Shupp writes on my earlier post about Progressivism and the Constitution:

"There's a little teeny tiny ittsie bittsie problem with this veneration of the Constitution -- about a third of the way thru Madison's NOTES OF DEBATES there's a brief discussion where one of the convention members spoke out against being too precise in the final document, on the grounds that in 40-60 years the Constitution would be outdated and superceded by some otheer agreement. And virtually all the convention members agreed.

IOW, the Founding Fathers themselves failed to hold the Constitution in the reverence with which modern conservatives insist. They were .... liberal.

(What changed things? My take on things: the Constitution did indeed last about 40-60 years, bringing us to the 1830's, 1840's, and 1850's, when it began to break down over slavery and perhaps various regional issues. But enough people were committed to the status quo that a new convention to produce a new constitution wasn't a viable idea. And then the Civil War came on, and the Constitution got amended and interpretation of the Constitution got shifted some, and this revised Constitution forced down upon the defeated South as something which could never be changed .... and conservative veneration for the document was set in stone. But I add, I am not a historian, so Your Mileage Is Free to Vary
)".

I will have to look up exactly what was said in Madison's notes, but this general attitude was certainly common among (as Mike points out) the liberals in the United States at the time. The starkest proponent of this sort of thinking is Jefferson who wanted a new constitution every 19 years, and you can see it in Paine and Jefferson's writing about the problems of the past ruling the present.

Of course, in 1787 they had no idea how history would evolve. But you could see it achieving this liberal goal in at least three ways:

1. Plentiful constitutional conventions and bloody wars that fertilize the tree of liberty and keep us supplied with successively newer constitutions

2. A more orderly active amendment process that changes the Constitution considerably over time, and

3. A recognition by the courts, the Congress, and the people that much of the Constitution is deliberately written to be vague and contesetable - entirely appropriate in a polity that values pluralism - and that the original intent of the Constitution was to be a living document.

I'm sure there was some embrace of all three of these views, but of course we've mainly had the third type of constitutionalism in this country. That's not something that FDR imposed on all of us, either. The language of the Constitution was contested and molded by the founders themselves: Hamilton, Washington, Jefferson, Madison, and Marshall. Debate over what constitutes the "general welfare" and what is "necessary and proper" are not twenty first century get out of jail free cards for leftists: these debates go back to the very founding of the country.

If the language of the Constitution was not contested language, you wouldn't have seen this variety of opinion in the founding era.

I do venerate the Constitution despite the point made by Mike. I think the important thing to remember though, is that there was an original intent to the Constitution. Some of that original intent was specific, of course - very specific. But some was left general and vague. It's self-styled "originalists" today that are violating the original intent of the Constitution by denying that. We who understand that the Constitution is a living document shouldn't just concede veneration for the founding era and it's values to the self-styled originalists. We're the Jeffersonian liberals.

8 comments:

  1. Who at the time endorsed #3? I know Jefferson said some very unkind things about the court subverting the constitution, after the fact it's explainable as a particular gripe about a ruling rather than a general principle.

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    Replies
    1. Jefferson, clearly. Hamilton as well, I think.

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    2. Jefferson was a complete foe of the Constitution, doing everything he could to undermine what Washington, Franklin, and Hamilton had created, including attempting repeal of the Judiciary Act, all to advance the cause of slavery.

      Marshall, who wrote Marbury, correctly loathed Jefferson, as did Washington and Hamilton. Marbury was based principally on Hamilton's No. 78 and Hamilton fully supported Marbury.

      After Hamilton's death, Marshall remained to really become at the end of his service the last Federalist in the Government and, really, the sole connection with the original intent of Washington and Hamilton of vibrant markets and affirmative government.

      I would strongly suggest each of you read Chernow's biography of Hamilton. The original Federalist view of the Government has no relation to what you hear from the pen of Scalia or Thomas or how you frame "original intent."

      What both you totally fail to comprehend is that Jefferson and Madison and all who followed had only one principal goal during and after the Constitutional Convention and that was to preserve Slavery against anything, including Modernity. There was no intellectual honesty to anything.

      Franklin and Hamilton and Washington all wanted to abolish Slavery but had to give that up as a compromise to obtain a strong national government which they thought was essential to prosperity, foreseeing everything from Pirates to another war with Great Britain.

      Before your speak or write further, read Chernow's Hamilton

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  2. "but this general attitude was certainly common among (as Mike points out) the liberals in the United States at the time."

    And Hamilton certainly wanted and thought he'd get a different constitution soon as well, by either revision or re-interpretation... he just thought he'd get one more favorable to central power and industrialism.

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  3. "The language of the Constitution was contested and molded by the founders themselves: Hamilton, Washington, Jefferson, Madison, and Marshall. Debate over what constitutes the "general welfare" and what is "necessary and proper" are not twenty first century get out of jail free cards for leftists..."

    Exactly! During Washington's administration, there were fierce disagreements about the constitutionality of the Bank of the United States. Jefferson and Madison -- to their credit, I think -- waffled on this issue when it became evident how useful a central bank was. And when Monroe vetoed an internal improvements bill because he doubted its constitutionality, there were many who disagreed.

    I am not sure whether to take it that Virginia schools do a much better job of teaching US history than schools in my state, or whether Daniel has read a ton on the founders as an extracurricular hobby.

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  4. "...this revised Constitution forced down upon the defeated South as something which could never be changed .... and conservative veneration for the document was set in stone."

    This narrative conflates Southern Conservatism (White Supremacist Politicians) with Movement type. There's overlap or course (Strom Thurmond, Barry Goldwater) but not nearly as much as there is between the former and Liberalism (Bill Fullbright, Huey Long, Al Gore Sr, etc...).

    The constitutional crises most salient to the current left-right divide was over the New Deal. This //'s SCOTUS's near knockdown of Obama's HCR.

    So, take a look at how White Supremacists voted on the 1933 National Industrial Recovery Act...the major part of the New Deal that SCOTUS struck down as unconstitutional.

    Below, are all the known votes from the 22 Senators representing the 11 fully confederate states:

    1933 National Industrial Recovery Act - NIRA

    AL Aye [D] John Bankhead
    AL Aye [D] Hugo Black
    AR Aye [D] Joseph Robinson
    AR Aye [D] Hattie Caraway
    FL Aye [D] Park Trammell
    FL
    GA Aye [D] Walter George
    GA Aye [D] Richard Russell
    LA Aye [D] John Overton
    LA Aye [D] Huey Long
    MS Aye [D] Hubert Stephens
    MS Aye [D] Byron Harrison
    NC Aye [D] Josiah Bailey
    NC Aye [D] Robert Reynolds
    SC Aye [D] James Byrnes
    SC NVt [D] Ellison Smith
    TN Aye [D] Nathan Bachman
    TN Aye [D] Kenneth McKellar
    TX Nay [D] Thomas Connally
    TX Aye [D] Morris Sheppard
    VA
    VA

    (NVt = No Vote)

    http://www.govtrack.us/congress/votes/73-1/s91

    That's not how Movement Conservatives would vote.

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  5. Two very quick comments.

    First, very few "originalists" are concerned with "original intent", but rather with original meaning.

    Second, it is doubtful that there is such a thing as "original intent" among 500 legislators promulgating even a single piece of legislation into law (for an interesting back-and-forth on this topic, see Jeremy Waldron and Andrei Marmor). It is highly unlikely (perhaps implausible) that there was some kind of meaningful original intent among all those necessary to promulgate the Constitution as the fundamental law of the new political/legal order.

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  6. You're confused. Originalism does not mean original intent. Originalism means that in interpreting laws, judges should refer to the text of the document as it would have been commonly understood at the time of its passing. This is not about veneration of the past. This is about leaving the business of legislation to legislators.

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