Constitutionally Incapable

A liberal Facebook friend posted the link to this Daily Kos story about Bobby Jindal, the cute-but-dumb Republican governor of Louisiana, who recently demonstrated his ignorance of our Constitutional system of government:

“We’re a nation of laws, that’s why I said I want the Supreme Court not to overturn our laws,” he said on CNN’s “New Day” on Tuesday.

“If the Supreme Court were to do this, I think the remedy would be a constitutional amendment in the Congress to tell the courts you can't overturn what the states have decided.”

The friend who posted the link commented upon it thusly: "He's been drinkin' too much derp-entine. /
derp derp derp derp".  You see why I love liberals: they focus not on personalities but on issues, logic. and evidence.  And how do I know that?  Because they say so, and they wouldn't say it if it weren't true.

I made a snotty comment on my friend's post: "But then who does read the Constitution? It's old and irrelevant, just for rich white men."  My friend and I went back and forth a few times as he half-defended ("I think an argument could be made that the founders were people of means and the entire system was created to protect those same people")  the dumb slogan I'd sarcastically invoked, until I commented at greater length.

Yes, an argument could be made to that effect. In fact, it has been, quite a few times; I think I first encountered it in Howard Zinn's People's History of the United States. The people I was thinking of were college undergraduates who were furious when the blog of a bigoted university professor wasn't shut down by the university because of the First Amendment. Their stupidity was perhaps understandable -- they were too young to remember how the First Amendment had been used to protect the freedom of speech of people like them, and where would they have learned the history? I suspect they'd picked up their position from some graduate TAs who should have known better, but I don't know for sure. And entertainingly, the same people wailed that a projected anti-gay-marriage amendment to the US Constitution would be totally unconstitutional. 1) When did they suddenly care about the Constitution, which was for old rich white men? 2) A Constitutional amendment, by definition, cannot be unconstitutional; it changes what is constitutional and what isn't.

I'm not a Constitutional historian, let alone a scholar of its interpretation, but I have read the damn thing, and I know a little of the history. I agree that it was intended to protect the affluent white men who wrote it, though they didn't "create the system", they inherited it, and one thing that strikes me when I read it is how jumbled and messy it is. After all, it was written by committee, and it's marked by numerous compromises. It also is incomplete. It says nothing about banking, for example, although the framers were very interested in that subject. Roger D. Hodge wrote in The Mendacity of Hope: Barack Obama and the Betrayal of American Liberalism (Harper Collins, 2010), quite a good book by the way, that "banks were popular inside the [constitutional] convention but extremely unpopular outside it; leaving banks out of the document can be seen as a tactical maneuver, to eliminate a potential obstacle to ratification" (106).

It's true that the Bill of Rights is often ineffective in protecting the rights of the less well-off, though I think things improved in the second half of the twentieth century. (I wonder how one would construct, enforce, and sustain a system which really would protect the rights of those who aren't well-off.) Whatever the framers intended, and I don't think they were all of one mind, the Constitution and the Bill of Rights have been modified, extended, and used in ways they didn't foresee and probably wouldn't have liked. Ironically, the "oh, it's just for old rich white men" line is a kind of constitutional fundamentalism, not different in principle from the fundamentalism of 'original intent' jurists: the Constitution has an unchanging essence, which can be known, and which binds America forever. And while I do think it would be good if more people read the Constitution, that wouldn't eliminate our problems, just because it has no essence, and different readers will read it differently. (Even highly trained specialists come up with diametrically opposed interpretations, and the much-touted Constitutional scholar Barack Obama has uttered some idiotic howlers about it. So has Antonin Scalia, who like Obama is a product of Harvard Law School, but it's important to remember that they are both idiots, which is why we're doomed.) The Constitution is not only the primal text and its amendments, it is the corpus of laws and judicial decisions built around it over the past two centuries.

The ironies and the humor multiplied when I decided to read the entire Daily Kos article.  The author, one Laura Clawson, commented thusly on Jindal's remarks: "Hoo boy. First, Bobby, the Supreme Court gets to decide if a law is constitutional. That's its job. We're a nation of laws, and the Supreme Court has a role in determining those laws, which is something you might want to look into before spouting off."

I wondered about that, so I did the unthinkable: I read the relevant part of the Constitution, Article III, which sets out the duties and powers of the Supreme Court.

Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In Ms. Clawson's words, "Hoo-boy."  I don't see anything there about deciding the constitutionality of laws, do you?  As I remember from my high school Civics class, that power, known as judicial review, was asserted by the Supreme Court in 1803 in the case Marbury v. Madison.  Judicial review has been part of the Court's "job" ever since, but it's not in the Constitution itself.  So, Laura Clawson is either lying or has not read the Constitution.

This is not a defense of Jindal, who is just another ambitious Republican clown.  As a writer praised by my Right-Wing Acquaintance RWA1 might point out besides, Jindal is not an Anglo-Saxon and therefore can't be expected to know "the Magna Carta and the freedoms passed down by their ancestors."  But let's not forget something the great Constitutional scholar Barack Obama said during a press conference in 2012: "Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."  Not all that far from Jindal, and equally false; then-Attorney-General Eric Holder was given the unenviable task of backtracking from the claim, and the White House spun the usual web of obfuscation around itself.

Some time ago a right-wing Facebook friend posted a meme which declared that kids should start reading the Constitution in elementary school, and I agree.  Beginning in elementary school and continuing until graduation from high school would give time and opportunity not just to read the basic text but to learn something about how the courts work, how judicial interpretation builds on the Constitution, legislation, and case law, and so on.  Maybe such an ongoing program would make an impression on the students' minds, and they'd be ready to return to the sources when anyone makes a claim about the Constitution and what it says.  But I doubt it.  After all, my right-wing friend and probably my liberal friend had Civics class just as I did; and President Obama studied the Constitution at Harvard (as did Scalia, among others), and they still make absurd, unfounded statements about the Constitution and what it says.  I don't know if there's a remedy, but the problem is clearly not limited to one part or another of the political spectrum.

Defending the Faith

An old friend linked to this article from Slate on Facebook today, about religious opposition to same-sex marriage as voiced by Louisiana governor Bobby Jindal.  The post quotes Jindal as follows:

No church or church-affiliated organization, or individuals whose business is run in a manner consistent with their faith practices, should be required by the state to take steps in conflict with their religion. Nor should they be legally punished for how they treat marital arrangements outside the teachings of their faith. …

The writer of the piece, William Saletan, compares Jindal's remarks to the stand taken against interracial dating, also defended on religious grounds, by Bob Jones University "fourteen years ago," though it is actually decades older than that: the university had lost its tax exemption for racial discrimination in 1983, despite the support of then-President Reagan.  The particular stand Saletan discusses took place during the 2000 election campaign, when Republican candidate George W. Bush was criticized for having paid the obligatory visit to to BJU.  I've written about that before, and as Saletan points out, BJU dropped its policy against interracial dating immediately after mounting this defense, admitting that they couldn't cite a verse of Scripture to support it.  (The link I had to this information is broken.  Damn CNN.  But Saletan has this link to a contemporary account, which in turn links to a transcript of Bob Jones III's appearance on Larry King admitting that he had no Biblical support for the policy.)  Saletan points out several parallels between Jindal's defense of religious antigay bigotry and BJU's defense of racial bigotry, and rhetorically challenges Jindal to explain whether he'd support a religiously-based ban on interracial dating.

One of the most entertaining parallels Saletan draws is to a statement from BJU which declares that in its precincts "Students of all races attend here and live in racial harmony and respect for one another as Christians. … Each person dates within his own race. For there to be discrimination, one race would have to be treated differently than the other."  As Saletan says, this parallels the common claim that homosexuals can marry as long as they marry someone of the other sex.

But I objected to this related part (the statement in bold type is the antigay argument Saletan wants to refute):

4. Homosexuality, unlike race, is a choice. Empirically, all the evidence runs against this belief. If the science doesn’t convince you, the personal experience overwhelmingly reported by gay people, combined with the spectacular failure of “ex-gay” ministries, ought to shake your confidence. Yes, it’s possible to concede that homosexual inclination is involuntary while insisting that to act on that inclination is a choice. But the same can be said about race: You’re born black, but the decision to date a white person is on you.

As I keep insisting, the evidence supports neither claim: you can't prove scientifically that anything is a choice, and the evidence that homosexuality is somehow inborn is invalid.  As for "the personal experience overwhelmingly reported by gay people," that's a datum but proves nothing: people defend all sorts of bad-faith decisions by claiming that they can't help themselves, and they may even believe it.  (Lately, for example, I've encountered some gay people who claim that coming out wasn't a choice for them.  What else could it be?  How does coming out get into one's genes?)  The same goes for the spectacular failure of ex-gay ministries: it shows that sexual orientation, whatever it may be, is difficult to change, to the point of impossibility.  But forced religious conversions are equally ineffective, and no one (I think) wants to claim that religious affiliation is genetic.

A number of people, gay and antigay, have tried to confuse the issue of analogies between "race" and "sexual orientation" in the service of their agendas.  True, same-sex marriage isn't equivalent to race, but it is arguably analogous to interracial marriage.  As I've also pointed out before, interracial marriage was not legitimized by appeal to a "racial orientation" that forced people to marry spouses of the opposite race; why some people made such a choice was not even discussed seriously, certainly not in the Supreme Court decision which struck down state anti-miscegenation laws in 1967.  (It concludes, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.")  I've known people who were only attracted to people of other races, as well as others who stuck to intra-racial relationships.  Some of the latter, especially, might appeal to Nature as a basis for keeping it all in the Race, but there's no basis for this notion and no one, that I know of, has even tried to find one.

Is being gay like being black?  Parallels and analogies can be and have been drawn, and they can be argued for and against.  But since American civil rights laws protect both innate conditions and chosen ones, whether homosexuality is inborn, mysteriously acquired, or freely chosen is irrelevant to the question of religious exemptions under those laws.  Religious freedom, like any other freedom, has limits, and those will have to be debated, litigated, and decided; but it's dishonest of opponents of same-sex marriage to pretend that such questions are anything new.

I'm From the Government, and I'm Here to Help

There is, as Washington Post hack Dana Milbank remarks (via, h/t to Doonesbury's Daily Briefing) with unseemly Schadenfreude, "something exquisite about the moment when a conservative decides he needs more government in his life." Which doesn't mean I don't share his Schadenfreude, as:

About an hour later [after Senator David Vitter, R-La. called for Big Government to help clean up the oil spill rather than require the Private Sector to clean up after itself] came word from the Pentagon that Alabama, Florida and Mississippi -- all three governed by men who once considered themselves limited-government conservatives -- want the federal government to mobilize (at taxpayer expense, of course) more National Guard troops to aid in the cleanup.

That followed an earlier request by the small-government governor of Louisiana, Bobby Jindal (R), who issued a statement saying he had called the Obama administration "to outline the state's needs" and to ask "for additional resources." Said Jindal: "These resources are critical."

These would be reasonable requests if they weren't coming from vocal opponents of Big Brother's terroristic interference with ordinary citizens' lives. As Milbank goes on to point out:

It may have taken an ecological disaster, but the gulf-state conservatives' newfound respect for the powers and purse of the federal government is a timely reminder for them. As conservatives in Washington complain about excessive federal spending, the ones who would suffer the most from spending cuts are their own constituents.

An analysis of data from the nonpartisan Tax Foundation by Washington Post database specialist Dan Keating found that people in states that voted Republican were by far the biggest beneficiaries of federal spending. In states that voted strongly Republican, people received an average of $1.50 back from the federal government for every dollar they paid in federal taxes. In moderately Republican states, the amount was $1.19. In moderately Democratic states, people received on average of 99 cents in federal funds for each dollar they paid in taxes. In strongly Democratic states, people got back just 86 cents on the tax dollar.

That's nothing new, of course. Opponents of big government usually have their hands deep in the taxpayers' pockets. And that "newfound respect for the powers and purse of the federal government" will disappear down the memory hole as soon as right-wing pols go on the campaign trail, which means next week.

So I want Sarah Palin to denounce those crooks in Washington who want to waste the taxpayers' money on cleaning up after a foreign oil company that her husband worked for for 18 years. And what happened to "Drill, baby, drill"? Oh, she still supports it of course. But about keeping government out of Louisianans' business, nada so far.

And Teabag Nation, where are they? I want to see them get out there and denounce Jindal, Vitter, and the other hypocritical Republicans-in-Name-Only who want the socialist (or fascist, depending on which day of the week it is) Obama to send National Guard troops in to suppress the freedom-loving people of Alabama, and government money from their pockets to help Big Oil. But I doubt it very much. As shown by their general allegiance to Social Security and Medicare (for themselves), they're quite willing to ignore Ronald Reagan's infamous quip about government help when it suits them. (The blogger who endorsed Reagan's quote seems mainly concerned about how the oil spill will affect his god-given right to eat his favorite foods.) Government helps those who help themselves to the contents of the Treasury, especially Republicans.