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Constitutional hypocrites: Bachmann and others pick and choose powers they like

Yesterday, I argued that, as a matter of political perception, the campaign by Republicans to portray themselves as the party that respects the Constitution may be a masterstroke, if they can convince the public.

As a matter of substance, it’s difficult to take the claim seriously, at least until they make much clearer than they have done so far what they mean by “enumerated powers.” How explicitly must a federal power be described in the Constitution to be real?

The Republican theory of “constitutional conservatism” relies mostly on the idea that the Constitution allocated certain powers to the federal government and that all others are reserved to the states and the people. In the next installment, I’ll deal with the historical inaccuracy, or at least oversimplicity of that theory. But even if we accept the premise, Republicans have a lot of explaining to do, and so far I don’t see who is doing the explaining.

In August, at the height of the Obamacare debate, Michele Bachmann said, on Sean Hannity's program:

Rep. Michele Bachmann
MinnPost/Raoul Benavides
Rep. Michele Bachmann

“A lot of members of Congress may have forgotten what the Constitution says. But, again, it is not within our power as members of Congress, not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care.”

Leaving aside the “national takeover” hyperbole, Bachmann is right. In fact, neither the words “health,” “medicine,” “doctor” nor “patient” appears anywhere in the Constitution.

But if no such power is enumerated, why are she and other constitutional conservatives not calling for the repeal/abolition of Medicare, Medicaid, the Veterans Administration and the special tax treatment for health-care benefits?

I have asked Bachmann and her spokesters for guidance on this question since the Hannity interview and have been unable to get an answer.

Presidential power to start wars?
On the other hand, the Constitution does not explicitly authorize the presidents to start wars. (Congress is empowered to declare wars, but the United States has gotten itself into many dozens of wars without benefit of a congressional declaration). Neither the president nor the Congress is authorized to establish or maintain permanent military bases in foreign countries. You can argue about the number of such bases but there are at least dozens. The ones in Germany and Japan date from the 1940s. The one at Guantanamo Bay, Cuba, was established in the aftermath of the Spanish-American war in 1903. What evidence is there that the Framers of the Constitution envisioned or authorized such things?

The preamble does mention that the purposes of the Constitution include “provid[ing] for the common defence,” and likewise Congress is authorized to lay taxes and spend money for “the common defence.” And sure, the president is appointed as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” But if it’s clear, specific, enumeration of powers the Constitutional conservatives are after, that language is a far cry from bombing or invading countries that haven’t attacked the United States and against whom Congress has not declared war.

Perhaps a real strict constructionist would insist on a ruling as to whether a particular military adventure is a case of "defence" or "offence," since the latter word never appears in the Constitution. The Constitution is clearly much more permissive about things done for the "common defence" than, let's say, to advance U.S. economic or even imperial interests.

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy
"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy

And the preamble likewise does ordain and establish the Constitution to “promote the general welfare.” In the general Article I, Sec. 8 enumeration of the powers of Congress, immediately following “provide for the common defence,” comes another reference to the “general welfare” of the United States.

So if you are willing to infer specific powers from vague, sweeping Constitutional language about “common defence,” then what is it that liberals have ever done that can’t be inferred from “general welfare,” plus the power to tax, to spend, to regulate commerce and the Congressional power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof?”

Not to be too snotty about it, but it appears that Bachmann and other “constitutional conservatives” are fine with implied powers, if they like the powers. But if they don’t like what Congress or the president has done with their vision of implied powers, then they insist on explicit enumeration.

For those of you keeping score at home, the 1819 decision in McCulloch v. Maryland, by Chief Justice John Marshall, found that the Constitution grants to Congress implied powers for implementing the explicitly delegated powers, in order to create a functional national government.

And in case you missed it, Rep. Bachmann plans to organize classes on proper constitutionalism for the members of Congress, and has arranged for Supreme Court Justice Antonin Scalia to address the class.

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Comments (42)

This article begins the discussion of the hypocrisy of Republicans claiming to be the party that believes in the strict construction of the constitution. There are other examples too. For example, family law issues (marriage, divorce, decisions on life and death etc.) have always been the purview of state law. In the last generation, Republicans have pushed for the federalization of these issues. Also the conservative members of the U.S. Supreme Court -- Scalia, Roberts, Alito especially) have pushed in a series of decisions to have federal statutes preempt state common law in the areas of tort law, product liability and consumer protection in order to benefit business interests. These areas have also been the bailiwick of the states, but Republicans seem to have no hesitation in taking away the regulatory power of states to protect their citizens.

Our "Constitutional" "Conservative" friends (whose actual operation and thinking has no connection to either of those terms), read the constitution the same way many of them read the Bible.

They love to pull out a verse or two, here or there which they proceed to use to bash those whom they don't like or with whom they disagree,

"You shall not lie with a male as with a woman; it is an abomination." [Leviticus 18:22]

But ignore contradictory verses such as those proclaiming that eating food that does not meet the dietary rules of the Levitical code is also an "abomination."

... so that cheeseburger for lunch, that ham and cheese sandwich, shrimp, lobster? You might as well be gay.

Charging or paying interest for money you lend is also completely prohibited.

They also LOVE to ignore Jesus' demand that we love our enemies and pray for those who would persecute us and the admonitions of the Old Testament prophets regarding what happens to nations that do not take good care of widows and orphans, of the poor and needy, and the "strangers" and "foreigners" within their lands.

In identical ways, they elevate the Constitution to the status of "Sacred text," then pay NO attention to the overall sweep of the narrative nor the history of the nation as it was being written (and edited and amended by later generations) but only pick out scattered snippets and verses that they then attempt to use to "prove" the absolute correctness of their preexisting point of view.

But "proof texting" does not an argument make, whether your Sacred Text is the Judeo-Christian scriptures, or the U.S. constitution.

All such "proofs" must be cast aside in order to evaluate the underlying arguments which they're being used to justify. If the argument cannot stand on its own it must be discarded or altered to fit a broader, more accurate, more adequate understanding of the documents upon which it claims to be based.

Of course Mickey Bachmann, who, though claiming to have been a "tax lawyer" can't comprehend the difference between "gross," "net," and "taxable" income, could not begin to follow the argument I've just made.

The label she claims for herself "Constitutional Conservative" is not meant to explain anything, nor can she, herself, define that label adequately. It's only meant to be a smokescreen to hide behind as she and her C.C. friends seek to redesign the government of our nation in ways that are anything but "conservative" or "constitutional."

"Bachmann plans to establish classes on proper constitutionalism..."

Can't but wonder...If Bachmann plans to have
a prayer service before or after class?

Thank you, Eric, for your continued fine analysis. The Republicans are busy reading the Constitution. I doubt if any of them have read the health care reform bill that they are so anxious to repeal

In regard to the fudging of the constitutional obligation of congress to declare war before committing the military forces of the united states against foreign powers, I think that the modern beginning (after all, there's always Jefferson) was the Korean 'war', which was labeled a 'police action' under the aegis of the United Nations to avoid any formal commitment.

Vietnam, of course, started with LBJ's 'Gulf of Tonkin' resolution (occasioned by the questionable shelling of a destroyer in the above name gulf), which provided a congressional action somewhat short of a formal declaration of war.

As far as 'defence' vs 'offence' is concerned (note the British spellings), the founders didn't seem to have a problem with the invasion of Canada, so it's hard to argue the the Constitution was meant to authorize only defensive action against attacks on the united states.

1. Regulating health insurance has always been a function of the states. Ironically, the republican solution of allowing people to buy insurance across state lines would require states to give up that right.

2. "But if no such power is enumerated, why are she and other constitutional conservatives not calling for the repeal/abolition of Medicare, Medicaid, the Veterans Administration and the special tax treatment for health-care benefits?"

Because these are federal benefits intended to help the elderly, the poor or the disabled veteran that people can apply to receive. Forcing EVERYONE, whether elderly, poor, diasbled or not to buy health insurance or come under some sort of federally-mandated plan is socialism in that people don't have a choice.

3. As in the case of Iraq, presidents have sought and have received authority from congress to "use force" to achieve their military objective without requiring congress declare war.

Well said, Eric, and not "too snotty." Logic and consistency have not been part of the recent resurgence of the right wing.

As for “…I have asked Bachmann and her spokesters for guidance on this question since the Hannity interview and have been unable to get an answer,” there's a reason for your not getting an answer so seemingly obvious that I hesitate to mention it. Mrs. Bachmann and her staff are well aware that revocation by the GOP of Medicare, Medicaid, VA health benefits and the current special tax treatment of employer health benefits would ensure that every GOP legislator in the land, at every level, would have to find some other line of work. Permanently. It would bring the death of the Republican Party and put the right wing, as far as the general public is concerned, beyond the pale for generations to come.

Us liberals need to get over the fascination of hypocrites like Michelle and the woman from Alaska. More real news por favor!

Speaking of constitutional interpretation, does the use of 'militia' in the definition of the president as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States,” modify or influence the use of 'militia' in the second amendment, where the right to bear arms is contingent on service in a well-regulated militia (according to the words, at least, if not precedent)?

Roger (#8), we also need to continue to call out the hypocracy of their positions!!

It is not too surprising that "conservative" republicans led by the zealot Ms. Bachmann are preparing to take a quick "Constitution for Dummies" course from Judge Scalia. After all, they have all consistently demonstrated that they suffer from a cognitive disorder that we can call "selective attention disorder." Let's just dub it SAD!

On the other hand, I'm only glad (happy, actually) that the President does not need to take lessons on the Constitution from those dullards at the Supreme Court. I understand he knows the Constitution forward and backward. And I'm glad that at least he recognizes who the heroes of the Constitution were, i.e. Washington, Jefferson, Lincoln, and Teddy Roosevelt, to name a few.

And while we are on this topic, may I suggest that we all push for the U.S. Supreme Court to be moved to another location as far away as possible from the Capitol. That way, we'll ensure the judiciary and the legislative bodies will have little contact with each other. They won't have lunch together, or go quail hunting on weekends together. Let's put the U.S. Supreme Court somewhere on the west coast or maybe in Alaska!

"Presidential power to start wars?"

What is the definition of war? President Harry Truman did not seek a formal declaration of war in 1950, because it was a "police action" and later considered the "Korean Conflict". In this well wordsmithed event, 50,000 Americans were killed.

Rolf (#4): Which is the greater crime, repealing a bill which wasn't read before it was passed, or passing a bill you haven't read? I'm going with the latter.

The words of then Speaker Pelosi on March 9, 2009 regarding the health care bill: 'We have to pass the bill so you can find out what is in it...'

Brian (#9): "modify or influence the use of 'militia' in the second amendment, where the right to bear arms is contingent on service in a well-regulated militia (according to the words, at least, if not precedent)?"

Contingent? It is clear why you chose not to quote the part of the 2nd amendment of which you speak. Here it is:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"the right of the people" is assured in this declaration.

Precedent? Yes, there is precedence for the keeping of arms.

The requirement in the Affordable Care Act for everyone to purchase health care has become the talking point target for conservatives trying to challenge its Constitutionality. Yet they know perfectly well that the only way any insurance can work is if risk is spread across a broad population base. The requirement, or something like it, is necessary if we are to use private health insurance companies to achieve fair health coverage for everyone. If the requirement to purchase private health insurance by those who can afford it is the objection, however, then wouldn't Medicare for everyone be much simpler and way more effective? Medicare is far more efficient (its administration costs a fraction of that of private health insurers) and applying it to everyone would bring down health care costs. Those who don't like it or find it inadequate would be welcome to purchase their own supplemental insurance. Health care insurers would become boutique companies serving the rich, and everyone would have baseline health care. Of course, that too is unacceptable to the conservatives because it's also "socialism," as if bank bailouts and corporate subsidies (such as publicly financed sports arenas) are not just socialism for the rich. But the question that the right has never answered is: is it acceptable to have 40 million American citizens, many of them children, almost all poor and working class, continue with no health coverage and no way to get it? And if it's not, then what is the solution? The Republicans have no solution because their answer to the first question is that yes, it is perfectly acceptable. The uninsured, after all, are "the other." They don't see it as their problem.

[I wrote:]"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Steve Rose replies:
""the right of the people" is assured in this declaration."

As is their participation in a well regulated militia. I am curious as to how the former impacts the latter, particularly given how the Commander in Chief is CiC of the Militia of the states, "when called into the actual Service of the United States." Yes, the people have a right to keep & bear arms, but in what way is it contingent on participation in a well-regulated militia, that might be called upon in the service of the united states? It seems to me that the founders' use of 'milita' in both contexts is not accidental. I am somewhat surprised that self-professed 'originalists' sitting on our highest court apparently think the same word has different meanings in Article II vs the 2nd Amendment.

I love the comparison of the Constitution to the Bible. Both are ancient documents some people turn to when they need help dealing with the modern world. In the case of the constitution, the Tea Party zealots are looking to the Constitution for some mystical directions that just aren’t there.

However, I have often said that people should walk around with a copy of the Bible and the U.S. Constitution around there neck where they would cross out the parts they don’t like, and therefore don’t have to oblige, and highlight the parts they think are very important and therefore everyone should have to follow.

Steve Rose writes
"Precedent? Yes, there is precedence for the keeping of arms."

Sorry for my clumsy wording. My point is that precedent seems to conflict with the wording of the Constitution, if you firstly interpret the reference to militias of the states in Article II to refer to organized groups within states & the 2nd Amendment referring to well-regulated militia. I would propose that Joe McGun-Nut toting his ar15 through the woods does not constitute a well-regulated milita. And therefore the 'originalists' that interpret a personal right to bear arms seperate from membership in or training by a well-regulated militia are perhaps being overly activist in their interpretation of the Constitution.

Well said, Stephen (#14). Solving problems is not really a priority of the current version of the Republican Party. The goal is to reduce the size of government, even if it brings catastrophe, because reducing the size of government has taken on a quasi-religious aura of "revealed truth," and has become an end – maybe THE end – in itself.

That government exists to serve perfectly legitimate public purposes is an idea that has been attacked relentlessly by wealthy subsidizers of the reactionary and their acolytes. The Constitution that so many "constitutional conservatives" purport to revere makes that very plain.

"But the question that the right has never answered is: is it acceptable to have 40 million American citizens, many of them children, almost all poor and working class, continue with no health coverage and no way to get it?"

Stephen, that's not the question at all. The American people have provided the poor and working class with health insurance. It's called Medicaid.

The question the right never gets an answer to is "why do we need to overhaul the entire health care system to help those 10% who currently have none?"

The answer, of course, is we don't. This isn't about healthcare, because if it was the left would be for simply expanding Medicaid. This is about the Left getting control over 1/6th of the economy and having the ultimate political power over people's lives because if people have to depend solely on government for their healthcare, we no longer live in a free society, which is their goal.

So, Dennis, we're freer by depending on private insurance companies for our health care?
Of course, anyone who wants to can pay for their own health care, and (as some Republicans have said) you have the right to die young.
The problems with Medicaid are:
1. There's a gap between eligibility for Medicaid and the income level necessary for those dependent upon individual private insurance to afford it.
2. Less than half of those eligible for Medicaid actually are enrolled in it. If they were it would be badly underfunded.

And most Canadians I know have no doubt that they live in a free society. i know a number who winter in Florida, but go back in the summer to Canada where they maintain legal residence in order to get affordable health care.

I think the comparison of the new Heathcare legislation to Social Security and Medicare/Medicaid is appropriate. Both are mandated taxes on all income earners. If fact it is a lesser infringement of rights in that one can choose what private company you wish to use, the level of plan you wish to have, and the state in which you wish to access. These are considered taxes, and I have no problem calling the requirement to pay for insurance a type of tax. Those who were previously uninsured were not going without medical treatment. They just got their treatment and either forced the medical institutions to absorb the cost without reimbursement, or if the cost were high enough, they were foreclosed upon by the weight of forced repayment (see Then they were on medicaid. Fine system that was! Keep the new Health package. Healthcare is better than "NO-Care." Don't argue that ist is less constitutional than Social Security and Medicare/Medicaid. Just ain't so.

In recognizing the fallacies of Bachmann's rhetorical rants, are we not sucked in and become willing or unwilling participants in promoting, even in rejecting the arguments she so simplistically feeds the media and titillates the public in the process? Call it the Bachmann rant.

She appears supported by the media at least in all the constant coverage. It's called freedom of speech, yes, and I respect it have free reign to indulge in her vicious and unqualified attacks on the present administration, does not the media protect her as if she were a mere floundering idiot rather than an unreasonable; possibly treasonable voice? Seems like a bit of doublespeak by the media, evolving here?

Unsubstantiated character assassination on another human being has been done by Bachmann against Obama...even as she creates blasphemy against a god some may believe in; in another context indeed...but not the sick distorted, proclamations Bachmann presents.

Yet, we are expected to protect Michelle against the same forces that she exhibits and the words she conveys? We argue her credibility or incredibility and in the process, make her into a greater power in our debates...sad indeed.

We have fallen for the hoax, that she is a necessarily responsible individual who deserves such endless dialogue?

We are victimized by our attempt to understand or even condemn her verbal atrocities. Our democratic ideals foster open discussion and allow her free reign here...but at what point in time do we become fools and make her a celeb figure; merely foolish, but not dangerous?

Are we falling for the ruse she feeds us...who knows? I really don't know but I do wonder...

Brian (#17):

So you think that the writers of the second amendment felt the need to authorize the military to use arms? Seems kind of like authorizing citizens to breathe. Might not need to be stated. If it was all about authorizing the militia, the phrase "right of the people" would not be necessary.

Seems like this has been the interpretation throughout U.S. history. The only thing that changes is the degree of infringement.

Mr. Tester, in #19, conveniently ignores the abuses in the private system. Insurance may be available for purchase, but only if you're not sick. If you have the temerity to actually become ill, you get dumped, or the premium rises to an unaffordable level. Likewise, if you have a pre-existing condition, you can't get insurance at all - either explicitly by being denied, or again, by having the premium rise to the point where you can't afford it. This is the primary reason people can't afford to retire at a reasonable age - they can't afford the healthcare premiums.

Private insurance works great as long as you don't need it. Nice system.

The reason for these kinds of abuses is that insurance is a private, for-profit business. The insurance companies exist to service the bottom line, not the insured. Health care is not an appropriate area for private insurance at all - except perhaps as a boutique option for those who wish to purchase extra coverage beyond a public plan. A certain level of basic coverage, both preventive and corrective, should be a right for all citizens in any society that wants to call itself "great". And is, in every advanced country except ours.

The health care reform legislation fixes these deficiencies, at least minimally. The repubs want to take that all away again. Explain to me again, how does this make them my friend? As far as I can tell, they are only the friend of insurance industry - i.e., big business.

@Dennis Tester #6

Your argument for the GOP not being eager to "repeal" Medicare, Medicaid, and the VA has no merit.

The reason they don't want to repeal those healthcare items is because they know every senior citizen, veteran and business would kick them out of office at the first opportunity. Likewise, their disdain for a bill they've not even read and never supported lies in their magical thinking that if they ignore the problem, the free market will solve all their problems, which we already know is not true.

While Republicans spew nonsense about the Affordable Care Act setting up "death panels", the irony is that by not supporting affordable healthcare for all means that Republicans have established their party as a death panel.

Republicans had every opportunity to get on board with solving the healthcare crisis in this country, but they chose not to do so. They claim they oppose a mandate to purchase health insurance, even though that is the way to bring costs down, by having everyone in the risk pool. At the same time, they also oppose expanding Medicare to everyone as a public option, financed by tax withholding.

Those are the only two ways to do it, and since they're against both of them, they have no argument to fall back on. They can't have it both ways. And that's why they've never offered any alternative solution: they know there isn't one.

As always, arguments like yours fall back on "Socialism" in an attempt to legitimize your claims, but since you have no idea what socialism really is, that proves you don't know what you're talking about.

Regarding your argument that Congress has authorized military force and that it equals or negates the need for a Declaration of War, you're hopelessly misguided on that as well.

The Constitution clearly requires a Declaration of War from Congress; anything else is insufficient and a violation of the Constitution.

Paul says:

"1. There's a gap between eligibility for Medicaid and the income level necessary for those dependent upon individual private insurance to afford it."

Pass a one-page law to change it.

"2. Less than half of those eligible for Medicaid actually are enrolled in it. If they were it would be badly underfunded."

Pass another one-page law to increase its funding.

Problems solved.

"This isn't about healthcare, because if it was the left would be for simply expanding Medicaid."

Actually, most of the ones I know would readily accept an expansion of medicaid and medicare. In fact, one popular proposal form the left last year during the debate was: "Medicare for all"

Brad: I disagree. Dennis's point is that you don't need to be an income earner to be impacted by the law. Dennis poses the question, in effect, "does an 8 year old have to buy medical insurance under the new law"?

I think probably not, but Dennis's comment misses the point and reveals his, and many others (including my own) ignorance. I can say:
Dennis, Medicaid does NOT cover the working poor, except maybe, possibly in some limited situations.

Last year, when Bachmann was meritriciously posturing about this "Socialistic" health care proposal, some on the "left" lobbied just to extend MEDICARE (not MEDICAID) benefits (benefits now available to those over 65) to all, so we would in effect have a "single payer system." That hardly gained any attention, so focused were you and your right wing friends on protecting the precious rights of insurance companies. Single payer, or anything that could be somehow accused of looking like it, was quickly removed from any discussion or debate so we could get the "bipartisan compromise", which it is not, passed. With the promise, by the way, that once this was passed, further reform would bring about at least "universal health care". (which is NOT "single payer").

Dennis raises a good point about the new law which I don't have an answer to. But it's no answer to say it's just not necessary.

And here it is :

For those of you keeping score at home, the 1819 decision in McCulloch v. Maryland, by Chief Justice John Marshall, found that the Constitution grants to Congress implied powers for implementing the explicitly delegated powers, in order to create a functional national government

And there in lies the conflict. Some have still not accepted this decision as valid. And as you so well point out apply it when it is convienent to their own political view point. The key question is how do we make this the bset for the most ? Reading the Constitution seems to be wasting valuable time to fix the problems of the country.

//So you think that the writers of the second amendment felt the need to authorize the military to use arms? Seems kind of like authorizing citizens to breathe.

Steve, you have to remember at the time there it wasn't entirely clear that a large standing federal army was ever going to be maintained. In fact US didn't maintain a large standing army until after WWII. The US relied primarily on the idea of state militias i.e. National Guard units etc. So yes, the constitution has to authorize state creation and maintenance of such militias explicitly or risk a disorganized ability to defend the country. During the Civil War this created a lot logistic headaches because throughout the war different units and states were using different types of rifles. Both sides spent the entire war trying to standardize weaponry.

What else should the federal government require that we purchase?

Perhaps we should create a mandate that every US Citizen (and illegals too?) purchase a handgun and also require them to sign up for training along with that purchase. Afterall, it would save a lot of money in police protection if every citizen was independently armed. This is all about cost, correct?

The Republic/conservative/Tea Party approach to the constitution is the product of mindset that distrusts human intellect and prefers reliance on authority. It's not a coincidence that this "movement" has grown out of a the anti-intellectual era of the last three decades.

This contrasts with the liberal intellectual tradition that has been characterized by a belief that the human capacity for reason is reliable enough to solve problems. Conservatives prefer to reference authority while liberals try to figure things out.

In the real world most people rely on a combination of these intellectual approaches but what we're dealing with here are extremes.

The historical fallacy of the Republo-Tea Pary is that the founding father were conservative intellectuals. This fantasy would have us believe for instance that the constitution is based on Christian principles. In fact most of the founding fathers drew their reasoning form the liberal Enlightenment ideas of their time. This is why you cannot trace any of the various constitutional principles i.e. Democracy,voting,division of power, independent judiciary, etc. to any Christian theologian or biblical passages.

You have to remember that at the more extreme end of the conservative mindset is a tendency to treat all texts like religious texts. This is a product of preference for authority over rationale. You see this for instance all the time with religious complaints about popular culture, books, movies, music etc. It's an inability to see that a song about drug use is not necessarily a celebration of drug use in the way religious texts a music are celebrations of religious ideas. It's a concrete mindset.

Once you understand this basic mindset the Republo-Tea Party treatment of the constitution is coherent and predictable. What they are doing is treating the constitution like a religious document, and by extension deifying it's authors. This is why constitution debate with such people looks and feels more like a religious argument over scriptural interpretation rather than historical debate or democratic process. The recent reading of the constitution in the House makes perfect sense if look at as a religious ceremony. The selectivity of constitutional principles, historical figures, and textual passages is the stuff of religious debate. It looks more like a debate between Catholics and Baptists than an historical debate.

Of course the irony of all this is that it places conservatives in the position of engaging in wholesale historical revision. Under the guise of "originalism" Republicans have substituted historical fantasy for reality. The constitution is something to be believed in, not interpreted. Like all fundamentalist interpretations of religious text, it says what it says, it doesn't have to be interpreted.

Love to see the paleo-progs in such disaray. yes, it's Bush's fault and no, i don't think you are really transferring your bigotry onto your political enemies' intentions.

What we call our right to privacy is not enumerated in the constitution, yet is actively regulated by the federal government. Is there a conservative call for repeal of federal legislation on privacy issues?

We had lengthy but interesting discussion of some of these issues a while back in a previous thread. One of Mr. Blacks blogs: "Tenther Emmer Meet Tenther Tom Jefferson" or something like that. I had a lengthy exchange with John Iacono:

Paleo-Prog... nice.

//Is there a conservative call for repeal of federal legislation on privacy issues?

Actually Clare, that's the main argument for repealing Roe V. Wade. For some bizarre reason champions of free choice have completely forgotten to point out that the primary tenet of Roe V. Wade was privacy. Conservatives who want to repeal it argue that privacy is a "legal fiction" created by the activist judges who legalized abortion. There are two components to the overturn argument. One is that there is no constitutional guarantee of privacy, and that all constitutional protections should be extended to fetuses, fertilized eggs etc. People forget that Roe V. Wade emerged at a time when lawmakers were amassing ever more intrusive laws in or to monitor and control the kinds of health care being delivered to women.

Even with Roe V. Wade still in tact, we had a Republican governor, I forget which one, maybe Iowa, issued a subpoena (via his attorney general) to examine all medical records of underage girls in the state. The rationale was that a parental notification law gave them the right to examine the medical records to troll for violations.

Should the right to privacy be nullified, and the bill of rights extended to all fertilized human eggs, it would essentially turn every fertilized human egg in the country into a ward of the state until the moment of birth. Every woman of child bearing age could be the subject of lifelong surveillance. The supreme court recognized this outcome and so ruled that privacy is a constitutional right. Some onservatives disagree.

I forgot to mention that the above mentioned subpoena was ruled unconstitutional and never enforced... but that ruling was based on a privacy interpretation of the constitution.

I've always wondered, if a fetus WERE an independent individual, would a woman have the right to evict it?

Interesting article in this weeks New York Times Week In Review:

If Scalia Has His Way:

You can see in reference my previous comments, Roberts and Scalia's argument over weather the question is whether or not James Madison would like video games or what his thought about violence is akin to theologians arguments about how many angels could sit on the head of a pin. It's a scriptural argument, not a legal argument. Madison is long long dead, and no longer available for questioning. No written record can claim to accurately or completely represent anyone's thoughts about anything. And in any case since Madison was not only one of the 39 signatories of the constitution "knowing" his thought would not settle the issue unless those thoughts were placed in the context of some imagined consensus with his fellow framers. Finally, being a mere mortal Madison's thoughts on the matter one way or the other are not necessarily more valid than any of our thoughts. I'm not even allowed to testify in a court of law as to what my wife was thinking about something ten minutes ago but Scalia want's to issue rulings based on his knowledge of Madison's thoughts over 200 years ago. Not only is Scalia's method a violation of basic legal principles, it's an historical and logical impossibility.

Oringinalism is historical fantasy pretending to be legal theory. It's embarrassing and kinda spooky that such an obviously fatuous concept is taken so seriously by sitting supreme court justices. The whole point of studying scriptures is to understand the mind of God. That only make sense because the mind of God is infallible and omniscient. The rationale of treating the constitution like a scripture disintegrates with the realization that the Framers were simply men, flawed men... some of whom owned slaves, had affairs, drank, and modified their bibles, deleting Jesus from the text. Hmmmmmm.

Seve Rose asks
"So you think that the writers of the second amendment felt the need to authorize the military to use arms?"

No. I just wonder whether there is a definition of 'militia' that is consistent with both uses of the word; in Article II and the Second Amendment. Like you say "If it was all about authorizing the militia, the phrase "right of the people" would not be necessary." Similarly, why being the sentence referencing a well-regulated militia, if the right is only applicable to individual citizens? In plain english, the full sentence declaring the right to bear arms shall not be infringed references both the individual and a well-formed militia. The legal record seems to be focusing solely on the former, and ignoring or belittling the latter. I think its a good example of how some interpreters of the Constitution pick and choose which phrases they view as relevant & important, while ignoring others that directly relate to the same subject.


Historically legal and constitutional scholars have NOT interpreted the second amendment to mean that both individuals and militia's have right to keep and bear arms. The reference to "arms", and the keeping and bearing of such arms only makes sense in a military context. The use of the term "arms" instead of guns, or swords, or weapons is due to the military nomenclature of the period. The term refers to those weapons that armys meet each other with on the field of battle, canons, swords, pikes, and guns. One does not keep "arms" hagning above the fireplace or "bear" arms against dear or turkeys. Simply ask yourself this: why would the term "arms" be limited to guns? Why is no one arguing that we have an individual right to biological weapons, artillery, or fighter aircraft? How can this be a reference to guns when the term "gun" or "Firearm" is not mentioned? Why would the framers want to guarantee your right to keep and carry a sword?

They were addressing the defense of the nation. Who had what kind of weapons in their homes simply wasn't the concern, nor was guaranteeing anyone's right to have any kind of specific or class of weapons.

Furthermore an attempt to specifically include a explicit reference to individual rights (I believe it was a phrase a South Carolina representative suggested) was rejected. The "keeping" of a gun at the time was not so big a deal as contemporary gun enthusiasts like to believe. Guns of the period were expensive, difficult to maintain in good working order, and not all that easy to fire accurately. Gun ownership was simply not a big concern at the time. Most scholars have concluded that the rejection of individual language wasn't simply to avoid redundancy but to focus concern on the ability of the state to defend itself. Also note, the phrase "people" is used rather than person, or individual. At the time the use of the phrase "people" implicitly meant a reference to collective rather than individual rights as in "We the People.." It doesn't make sense to refer to the collective individual. They would have said citizens if they were referring to individuals. Remember at the time no one knew if a standing army of professional soldiers was going to be maintained, an army would be a "peoples" army, an army of the people rather than a professional standing army, hence a militia- hence the reference to the people who would comprise the militia.

Now none of this means the 2nd amendment can't be interpreted to grant individual gun rights, but there is no doubt that historically it has not been interpreted to do so. There is also very little doubt that the framers were not interested in granting individual gun rights. The irony is that it is so-called "originalists" who are revising the meaning of the 2nd amendment. One thing is to read the text and decide it grants individual rights today, but basing that claim on the framer's intent is historically and intellectually dishonest.

"dear or turkeys" Ooops. I'll have to make entry in my deer diary.