Thursday, May 21, 2009

Good Article

At The Tenth Amendment Center is posted a good article by Patrick Krey entitled "Constitutionalism 101." My belief, at this point, is that we've already crossed over the rubicon. Yes, it's a fatalistic viewpoint, but it doesn't mean I think such articles or attempts to re-assert the bounds of power originally laid down in the Constitution are meaningless, or exercises in futility as it were.

Here is an excerpt from the final section of the article titled The Future of Constitutionalism:

It is human nature to be tempted to “read” one’s personal feelings into the Constitution. Doing this allows someone to declare anything they like as constitutional and anything they dislike as unconstitutional. That approach of substituting one’s personal beliefs for the supreme law of the land is in direct conflict with our nation’s founding. It’s bad enough when individuals do it in the course of their personal lives, but absolutely unforgivable when our public officials do it in their representative capacity.

Yes, readers will recall that I've stated many times that I think the term "unconstitutional" is an overused, misapplied term from both the left and the 'right'. As I've explained before, the term is used to describe something that the person using it doesn't particularly care for all too often. My personal preference, therefore, is the term "extra-constitutional." If a thing is blatantly unconstitutional, then fine, by all means let's use the term in those cases. Otherwise, let's not be so careless as to declare something not constitutional that is not clearly unconstitutional. As for you ungovernable (unrecoverable) leftists, well, you have your reward.

Otherwise, as I read through the article I kept finding myself anticipating that the fourteenth amendment might be cited directly by the author because of the destructive way in which it has been interpreted and applied by the courts. But no such luck. The only real reference made to that amendment is when the author cites a passage from Raoul Berger, author of Government by Judiciary, The Transformation of the Fourteenth Amendment. But recall as a prime case in point, that the SCOTUS, in its majority opinion in the case Kelo et al, vs. New London, referenced the fact that the fourteenth provided the teeth by which it (the Court) could "take private property for public use" at its own whims. Prior to the establishment of the fourteenth, the court proclaimed, this was almost impossible given the ambiguous language of the founders in the 'takings clause.' Hmmm.

Then there's the declaration made so often today that the Constitution is the "Supreme Law of the land." Again, this is something I've covered countless times before. I do tire of repeating myself, and I know you tire of it as well. But the fact is that the Constitution is not, in and of itself, the Supreme Law of the Land. Read it again. Please.

Anyway, do read the article in its entirety. I have a lot more to say on the subject, but I'm completely out of time this morning. Maybe one of you can help kick off a discussion in the comments section. See ya on the flipside. :-)


Anonymous said...

I don't really understand your "Supreme Law of the land" issue.

"This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding."

Seeing that the Constitution specifies the process by which Treaties and Federal laws are to be made, and places strict limits on both, as well as specifying all means by which the Constitution itself may be altered, I'm hard pressed to say how you can make a Constitutional argument that the Constitution isn't the Supreme law of the land.

Now, a non-Constitutional argument appealing to the laws of nature or Divine will might be made saying that some other law holds supremacy over the Constitution, and in truth I'm inclined to such a view myself, but while I might argue that from the Declaration of Independence, I wouldn't try to argue it from the Constitution. The Constitution is very clear in giving itself primacy over all ordinary acts of Congress, and grants such acts primacy over state laws and constitutions only insofar as those acts of Congress are in accordance with the Constitution.

More fundamentally, I don't understand why you even want to say that the Constitution isn't the Supreme law of the land. As mentioned above, I would rank a number of other laws to have primacy over the Constitution, but none of those laws actually need to be written or enforced by any human agency. As amusing as it might be to subject questions of physics or theology to our courts, I'm not actually in favor of doing any such thing.

This isn't a serious point of contention, just something I find puzzling. I simply don't understand what you intend by, nor how you justify, the statement that the Constitution isn't the Supreme law of the Land.

I think that Patrick misses the most fundamental point about the Supreme Court, which is that the power to strike down laws made by Congress is not given to the Judicial branch. Where both Congress and the President are given explicit and well defined authority to repeal or veto laws, the Supreme Court is only given the power to try cases. Every other power pursuant to the judicial system is given to Congress or the President. Even if the Supreme Court decides that a law is unconstitutional, their only power given by the Constitution is to decide individual cases brought before them (and to set a precedent for lower courts to follow in trying similar cases).

It is in striking down legislation (both of Congress and the states) that the Judiciary exceeds the bounds established by the Constitution. All theories of Constitutional interpretation set aside, if the Supreme Court were simply trying individual cases (however wrongly), they would not do nearly the damage they've done.

Anonymous said...

To continue (in circumvention of the posting limit of four thousand odd characters), Patrick completely misses this key point, instead getting sidetracked on the issue of interpretation, and fixing on the untenable theory of originalism. Originalism introduces the completely unnecessary and forensically vulnerable issue of uncertainty as to the historical meaning of the plain wording of the Constitution, a laughable concern for a document so recent. The problem isn't that the phrases in the Constitution can reasonably be interpreted as meaning anything different from what they meant when adopted, the problem is judges and counsel trying to evade those all too plain meanings.

I'm a simple textualist, for two reasons. First off, it is far harder for factionalists to twist the meanings of the words if you insist that the words mean what they clearly mean rather than arguing about what they might have meant a couple of hundred years ago. Second, if you insist the actual wording has authority, that tends to preserve the existing sense of those words and phrases, which has a positive effect on the language as a whole in addition to preserving the original sense.

At a more fundamental level, any theory of Constitutional interpretation which claims that special knowledge is needed to understand the meaning of its various clauses runs contrary to the plain intention of the Convention in choosing such sparse language to frame the document. It was their design that every American should be able to read and readily understand the Constitution without reference to any other source than their native language.

Were textualism rather than any other theory followed, the fourteenth amendment could not be abused to any significant degree, since its provisions are very clear in their plain language (despite being longer than most other amendments). Of course the fourteenth amendment ended up being a pathetic failure, but this was due to a lack of enforcement rather than any ambiguity as to what it said.

But of course the fundamental source of the Constitution's governing authority was the express consent of the American people. And while the great majority of Americans are still willing to be governed by the Constitution, they will no longer be ruled by those who arrogate to themselves the authority of government.

Terry Morris said...


My problem with the half-truth is this: Where we generally get crossways is in the latter part of the statement declaring "and all laws made in pursuance thereof, etc."

All laws made in pursuance thereof?

Depending on where you are on the political spectrum, which laws are 'made in pursuance thereof,?' and which are not?

Let's expose the leftists for what they are in whole.

Anonymous said...

You lost me there.

What exactly is going to be accomplished by disputing the notion that the Constitution is the supreme law of the land? I mean, I can see disputing it on the grounds that the Constitution is subordinate to unwritten laws superior to any human agency, as I mentioned before. But this doesn't seem to match the position you're expressing here.

Certainly, all acts of Congress, which including treaties and Federal laws, must be subject to the various clauses of the Constitution as they direct and restrict what Congress may and ought do. Whereas the Constitution itself is not constrained by any act of Congress, but only to such amendments as are ratified so as to have the same binding authority as the original Constitution.

In that sense, one may indeed say that the Constitution derives its authority from a higher source, just as acts of Congress must derive their authority from the Constitution, but that source--which I may call the consent of the governed--is not in form a law. It has no fixed form or language until it is expressed through ratification of clauses in the Constitution. Such may be considered the inherent nature of unwritten laws, they are thus an unreliable source of guidance to the jurist.

Indeed, the effort of judges to interpret the will of the people (by names such as "evolving standards" or whatnot) without reference to the ratified language of the Constitution has done great violence to the republic. I do not imagine that you agree with such efforts, which naturally attach to the argument that the Constitution is not the supreme law of America. But on the other hand I have difficulty seeing what efforts to undermine the Constitution are attached to the idea that the Constitution is supreme as law.

Perhaps you could link to a fuller exposition of this?

Terry Morris said...


You keep saying that I'm saying (or arguing) that the Constitution isn't the Supreme Law of the Land, full stop. To my knowledge I've never stated that in those explicit terms because that is not, nor has it ever been my position. And if I have ever stated it that way, it was an unintentional mistake, I assure you.

No; I've always maintained that the constitution is not, in and of itself, the Supreme Law. And I cite as my authority the passage from Article VI which you quoted above, and which I understand to mean that all laws made in pursuance of the constitution, and all treaties made under the authority of the United States, and the Constitution itself which governs them, comprise the Supreme Law, the judges being bound thereby, etc.

I have a problem with the general lack of attention to detail because the best way I know of for error to creep in is for people to cite passages out of context. The average guy doesn't read the constitution, c'mon. If he even has a written copy of it that he knows about, it collects dust like his Bible. Yet he takes his family to church on Sundays and the Preacher tells him that all he has to do is to pay his tithes faithfully, hold God accountable to his promises, and this and that, and everything will be hunky-dory for him and the church, while the rest of the country (or the world) goes to hell in a handbasket.

Your position on constitutional supremacy is sound, and I'm not going to argue against it because, as is implied above, I agree with you -- The Constitution IS the Supreme Law of the Land in the sense that you say it is. But, you see, you wrote several paragraphs explaining why, and by what authority it is the Supreme Law, if you know what I mean.

Anonymous said...

Ah...I think I understand. In other words, you see the phrase as being in danger of becoming a sort of reverse shibboleth, something that people can mouth without clearly expressing what they mean when they say it.

Liberals mean "so give up your guns and your God", basic conservatives mean "so we have the right to cling to God and guns", and technical anarchists like me mean "this was ratified by an overwhelming majority of the people, screwing with it is just begging for insurrection".


Anyway, I suppose you're right about it being used that way. By this point in the game that's true of most significant phrases, look what they've done with "love" and "hate". It's so that you can't just say "I love you" anymore without giving a detailed explanation of exactly what you mean by 'love'.

Not that I was ever inclined to do that.../snerk/.

Okay, and another snerk for the confirmation code on this post--'porro'. Those r's got a little too friendly and end up scanning as something else.

Terry Morris said...

"Ah...I think I understand. In other words, you see the phrase as being in danger of becoming a sort of reverse shibboleth, something that people can mouth without clearly expressing what they mean when they say it."

Actually, I think we're already arrived there. I don't think that most people understand what they're saying (or what they're accepting) when it is mouthed that the Constitution is the Supreme Law.

Do you? (not being smart, but sincerely interested in your take)

Sorry for the delay in getting back to you on this point, btw. I think I just missed it earlier.

Anonymous said...

Huh, I thought I posted a comment on this. There was a lot about love and liberty and freedom having been turned into reverse shibboleths.

Anyway, in case that post really got lost, I'll reiterate the direct answer to the question.

I believe that the Constitution documents the principles on which the American government can claim to exercise authority backed by the will of the people. It is thus the codified law on which all other laws of the nation depend for legitimacy, and which must govern every legitimate national law.

If I may engage in a tiny bit of Originalism, I believe that "of the land" is intended to mean "of the nation" rather than "of the geographical region". While it is true that the Founding Fathers drew on what they had learned from the Native American nations about different theories of consent, authority, and legitimacy in government, I doubt they intended to claim that the Constitution expressed the principles of government intrinsic to the American continent (or even just the Eastern coast).

The phrase "of the land" thus properly limits the Constitution to what it may be. It is not that law which governs the universe, or all man, or even all free people, but rather simply the law that governs the United States of America. I believe that they were also correct in this assertion, that to the extent to which the national government fails to uphold this law, it loses the legitimacy and authority of being the government of the United States of America.

Which is why I contend that I own no allegiance to the current national government. That government, by failing to abide by the provisions of the Constitution, has ceded any authority to act as the government of the set of people which includes myself.