Archive for February, 2011

A couple recent constitution-related articles I liked

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From Doug Ross:

This looks at the inspiration for the Constitution (history, philosophy), as well as how we've gone astray.

“Greece would not have fallen had it obeyed Polybius in everything, and when Greece did meet disaster, its only help came from him” Pausanias, 8.37.2, Inscription on the Temple of Despoina near Arakesion.

In Book VI of his Histories, the ancient Greek historian Polybius described three basic forms of government, each categorized by the number of those in power. He listed monarchy (rule by the one); aristocracy (rule by the few); and democracy (rule by the many). Polybius described, over time, how each type of government would gradually decline into their various corrupted forms of tyranny, oligarchy and mob rule, respectively.

Polybius believed that Republican Rome had designed a new form of government that could help check this inevitable decline. Rome combined all three forms of government — monarchy (its elected executives, called consuls); aristocracy (the Senate); and democracy (the popular assemblies). In this mixed form of goverment, each branch would check the corrupting ambitions and power of the others.

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From Ace of Spades HQ

Regardless of your feelings about last year's health care legislation or whether he is right, what's important here is that he is looking at the consitition, the law, judicial history, and common sense to form an opinion.

Someone was questioning my thoughts that the ObamaCare suit was an underdog. Here's some reasons it just might work.

The claim of constitutionality for ObamaCare rests upon two clauses of the Constitution (plus lots of interpretation and expansion since they were written).

The Commerce Clause authorizes Congress to regulate commerce between the states. This has been interpreted, rather expansively, as giving commerce the authority to regulate anything that "affects" interstate commerce, even if the action is itself entirely intrastate.

Example: Federal law controls how much corn you can grow. People challenged this, saying "Okay, I'm growing more corn than you allow, but it's not being sold to citizens of other states, but only within my state to other citizens within my state where the federal law can't touch me."

Held: If you sell the corn to intrastate customers, that means their need for corn from out of the state is therefore diminished, so your sale prevents (or discourages) an interstate sale, so it "affects" interstate commerce.

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Conservatism to Me, Part 1: Fundamentals

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As I've mentioned, I was mostly a leftist until a couple years ago. Living in a liberal town (Bloomington, IN), most people I know are liberal. Granted, that covers a wide spectrum from "Save the Earth" to "Smash the State". With such varying degrees of radicalism, it's hard to offer a single refutation, so I'm just going to lay down some groundwork on my conservatism.

The fundamental lynchpin of my conservatism is that we in the U.S. are blessed with a constitution designed to be "of the people, by the people, for the people" (Gettysburg Address). In order to prevent a tyranny of the majority, there are various buffers to direct democracy. These include electing representatives, the electoral college (whose value is admittedly debatable), and lifetime appointments of justices in an effort to place them above political winds. There are checks and balances such that a bill must pass both houses of the legislative branch and be signed by the president or pass both houses with an overwhelming majority if vetoed by the executive branch. Even then, a law can be struck down by the court if a case is brought before them and they deem it (the law) unconstitutional. Elected and unelected officials alike can be impeached upon egregious behavior. The legislative branch is divided into the house and the senate to provide greater representation for more populous states in the House of Representatives, while granting equal representation to each state in the Senate. The Constitution was created with knowledge that power tends to centralize by its nature and thus outlines enumerated powers with everything else "reserved to the states respectively, or to the people" (10th Amendment). Importantly, our constitution is amendable, such that originally unconstitutional items can be made to alter the constitution with enough popular support.

Now, I'm not saying processes have not been corrupted, but I can't think of a better bulwark against tyranny than our constitution. And I don't see Smash-the-State'ers offering thought out alternatives. It reminds me of the South Park underwear gnomes:

  1. Smash the State
  2. ???
  3. Paradise

It completely ignores that in times of chaos, people tend to cling to security, even if it's in the form of an iron fist and that in the midst of chaos the most ruthless can seize power from the benevolent.  I somewhat admire the far left's idealistic dreams of a self-restrained, all-powerful government, but history has never produced such an animal and I believe it is not a coincidence. Rather, it is due to the nature of power, which is better to be understood as it is than to foist our preconceptions of how it should operate upon it. The classic Madison quote seems approriate here:

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

— Federalist 51

This is what I mean when I speak of the Rule of Law. The constitution (in theory) tethers the governors to govern within limited powers. The rule of law could also be said to apply to Sharia, but our law is secular and inherits its power from the governed, rather than a religious ideology.

If I were to get this far in conversation with many I know, it would probably get into the narrative that the founding fathers were opportunist slaveholders, NWO masons, etc. Regardless of anyone's feelings about the founders, I ask that we stick to the document and its amendments (with a little Declaration and Federalist Papers to round it out).

The primary complaints about the constitution itself that I have heard have mostly been addressed via amendment. These include the rights of African-Americans (including the dreaded 3/5 clause) and women. These were addressed in the 14th, 15th, and 19th amendments, even though we needed to readdress these issues legislatively in the 60s due to lack of adherence.

The only other complaint is the one I heard from Howard Zinn, shortly before his demise, and probably echoed by Chomsky. That is the evolution of "Life, Liberty, and the Pursuit of Happiness" in the Declaration to "Life, Liberty, or Property" in the 5th and 14th amendments. At this point there may be a somewhat legitimate debate about whether the right to property is a good thing, but I'd a least like to point out that the narrative that the founders stealthily swapped out happiness for property does not stand up to scrutiny. Jefferson's use of "pursuit of happiness", was a toned down phrasing of John Locke's conception of Natural Rights: life, liberty, and property.

I'm guessing what I've said so far could probably find agreement with some liberals. Maybe not. Either way, we'll be disagreeing soon enough, so it's probably good to start with some fairly common ground.

On the other hand, I may be unaware of other constitutional criticisms. Let me know.

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