Friday, February 13, 2015

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.