Wednesday, February 17, 2010

Conservative Constitutional Pornography

Let me preface this entry by noting I am largely a judicial conservative. I am one of the fiercest liberals in my advocacy of sound public policy, but my views on the judiciary often pit me against my brethren.

I found this interesting, as a Supreme Court watcher and constitutional law scholar, I thought I could provide some insight into this absurd conservative rambling I stumbled on the Huffpo:
“A group of more than 80 conservative leaders plan to sign a document on Wednesday that signals a retrenchment to "founding principles." The document will be called The Mount Vernon Statement in honor of the location of the signing ceremony. The signers include a who's who of conservative heavy weights -- names like Grover Norquist, Ed Meese, Richard Viguerie, Edwin Feulner and Alfred Regnery”
The treatise opens with the rather peculiar declaration of “Constitutional Conservatism: A Statement for the 21st Century.” An open declaration of conservative principles is fine by me, but shamefully attempting to cloak these thoughts in the mantle of constitutional conservatism is an act worthy of ridicule, which we may now joyfully engage. After a lengthy preface, of the typical counterfactual history that conservatives too often engage, we stumble upon their real intentions. Let’s take these misconceptions one at a time.
“[The Constitution] applies the principle of limited government based on the rule of law to every proposal.”
This certainly depends on what one means by the ‘principle of limited government.’ The congress acts within its authority when enacting legislation pursuant to the powers of the legislature in Article 1 section 8. Principles of limited government, therefore, must suppose that congress has acted without authority when enacting legislation, or that the ‘conservative constitution’ would provide congress with fewer tools to address the challenges of a nation of some three hundred million. I am unsure of what complaint these conservatives have (Not enough domestic spying!?). Do they think social security, Medicare, Health Care reform, to be a violation of the interstate commerce clause? Even if such programs were not to be interpreted as coherent with the interstate commerce, congress continues to retain such authority in the means of general welfare, or even through some system of cooperative federalism. Last, allow me to note, that when republicans blissfully held power, they enacted a large scale, unfunded, Medicare prescription bill, that one must believe is also unconstitutional under this bizarre reading of congressional authority. Either way, let’s take grandma's money and health care away, okay? Obviously too much government etc.

They unfortunately continue:

“It honors the central place of individual liberty in American politics and life.”
Oh good, conservatives now like abortion – or at least abortions for some and miniature American flags for others? Oh wait, except, I doubt these conservatives, you, or I agree on what the fuck liberty means. I could go on about protecting privacy, abortion, search and seizure, respecting the liberty to print and think whatever one wishes, to do drugs etc. But obviously this is not what liberty means to these individuals, all of whom, I would suspect, would be against the constitutional liberty of birth control, abortion, freedom to use drugs under your own volition, to end your life with dignity, the liberty of homosexuals to engage in intimate relations, or any other ‘liberty’ which have actually been defined by the Supreme Court. Instead, I can only assume these hacks must be alluding to liberty to contract (since the constitutional liberty they so wish to defend currently stands for nearly everything they rail against.)

Oh, and so they go on to say exactly what I expect. I assume their previous use of ‘liberty’ to be rather superfluous when being the followed by this example of conservative constitutionalism:

“It encourages free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.”
Where the fuck in the constitution are these fools finding an economic system of any kind? These fools are clearly advocating a return to 19th century 14th Amendment jurisprudence, which culminated in the Lochner v. New York decision, and was later abandoned in West Coast Hotel. Allow me to quote Holmes’ dissent in Lochner to refute their proposition:
“Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
This blog post it clearly not the time to refute this archaic view of constitutional theory, but it is not a conservative view. Rather, it is one of the most activist views ever recorded, and has drawn criticism from liberals, (Douglas) Textualist, (Black) and Conservatives (Scalia) alike. But saying the constitution embraces your economic outlook sure makes you feel better doesn’t it? And they move on:
“It supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.”
Well this is an interesting bit of neoconservative porn. Again, I don’t know what the fuck this means. This makes no sense as a constitutional philosophy, instead simply sounds like a Paul Wolfowitz wet dream. Are they proposing a constitutional obligation to recklessly engage in an historically defunct foreign policy? I bet it was easy copy that rag from this nonsensical sentence from the Heritage Foundations website.
“It informs conservatism’s firm defense of family, neighborhood, community, and faith.”
Oh jesus, they end on this? Conservatives may be for public policy which encourage these principles, but the only one which is constitutionally relevant is the latter. I am all for you defending your faith, even constitutionally when necessary, but these individuals would surely role back a centuries of establishment clause jurisprudence. Then who would be the activist? I guess it would be fairly inconsequential, because their arguments for injecting faith into every aspect of American public life are unsupported by text or history, and therefore would remain silly if put in proper context. And don’t you just love how a conservative constitution ‘informs’ on issues? Brilliant, meaningless, rhetoric.

And just like that, it’s over. Now you might be thinking the same thing as me at this point, did any of the shit they said have any real substance? The answer is, of course, no, it was mostly fluff coated in language intended to give teabaggers an erection, and that’s about it. But I think it's important that when using the constitution as a defense for an argument, it is done in context and with understanding- too often it’s simply used as a political tool, and the constitution is more important than that.

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ShamRockNRoll said...

Excellent post, Nick. This was a thorough debunking of what I'm sure the rightwingers were hoping would become their new "Contract with America."

Mike Aimer said...


ShamRockNRoll said...

Sweet Jesus... I just saw some pictures of this "Mt. Vernon" gathering... they actually had people dressed up as George Washington. THIS is how serious the conservative movement is. I may have to add one of the pictures to your post.

Green Eagle said...

And yet this meaningless piece of jingoism has apparently led Wolf Blitzer to ask if it will lead to a new period of "conservative ascendance."

God help us all.

J D said...

This whole document was full of nothing but wishful thinking on the part of PNAC types. Great work, Nick.

Chris Rhodenbaugh said...

Awesome Nick. This falls neatly into line with the contradictory nature of the new conservative movement. Thank you for bringing it to my attention. The idea of the tea party movement of "taxation without representation," when the government peacefully changed parties because of mismanagement by a previous officeholder is what has started all of this. The future of the Republican party and conservative leadership is being built on a platform of ideas that is entirely contradictory. I keep believing that someone in the media is going to realize that Jon Stewart is practicing better journalism than the entire cable tv industry because he is the only one calling them out.