Tag Archives: constitution

CINDY SHEEHAN: NOT SO PROGRESSIVE

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More surprising than Cindy Sheehan’s return from her ostensible break from activism is her willingness to embrace conservative cant against the income tax:

The Federal Reserve, permanent federal (and unconstitutional) income taxes, Japanese Concentration Camps and, not one, but two atom bombs dropped on the innocent citizens of Japan were brought to us via the Democrats.

The 16th amendment empowers the majority to legislate against subjugation and plutocracy. It institutes a critical tool to confront on the badges of slavery abjured in the 13th amendment and realize the equal protection promised in the 14th.

Cindy Sheehan’s inane legal argument and her outrageous ethical argument against the income tax are disappointing. What’s more discouraging is skimming through the comments and realizing that taking on Nancy Pelosi arouses more outrage from DailyKos commenters than taking on the income tax.

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ON EMBOLDENING

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In the wake of Russ Feingold’s call last week for a clearly-defined timetable for withdrawl of American troops from Iraq, President Bush has been stirring himself from his vacation long enough to offer a series of iterations of the same tired argument that announcing plans to withdraw troops would be letting the terrorists win (a category which, to review, includes smkoing pot, buying knock-off merchandise, and treating intelligence claims with skepticism, but doesn’t include buying an SUV, writing gay people out of the constitution, or renewing the PATRIOT Act). The latest edition of this argument, deployed for the liberal policy threat du jour, is dressed up in tactical sounding language about “emboldening” terrorists, but the thrust is nothing new: There are evil people who must be defied, and they want us to take troops out of Iraq, so we must do the opposite. Comforting rhetoric for some, but not much of a military strategy.

In Iraq, as elsewhere, there may be a certain number of fanatics willing to sacrifice anything under any circumstances, but there’s a much larger number of people who weigh their choices based on an array of perceptual, factual, emotional, and social, factors which drive one towards or against an act of terrirism. Bush would have us believe that an announcement of a schedule for American withdrawl would inspire more of these people to take Iraqi and foreign lives. This would require that there be a significant number of angry people not currently “emboldened” to take action because it seems futile, who on hearing that US troops would be leaving would decide that insurgents could make a dent after all and would suddenly become violent, targeting – according to Bush’s rhetoric – the very troops whose tenure in Iraq had just been announced to be temporary. The sad truth is that terrorists are indeed making a dent in Iraq, and they seem to be plenty emboldened. More credible, I’d say, is the opposite theory: the creation of a clear timetable for American withdrawl, with doing little to satiate insurgent leaders, would deprive them of their greatest recruiting tool and send a signal well beyond Iraq’s borders that the United States government does not have imperial ambitions in the country. As Feingold himself argued two months ago:

When I was in Baghdad in February, a senior coalition officer told me that he believes the U.S. could “take the wind out of the sails of the insurgents” by providing a clear, public plan and timeframe for the remaining U.S. mission. He thought this could rob them of their recruiting momentum. I also think it could rob them of some unity. All reports indicate that the forces fighting U.S. troops and attacking Iraqi police, soldiers, and civilians are a disparate bunch with different agendas, from embittered former regime elements to foreign fighters. The one thing that unites them is opposition to America’s presence in Iraq. Remove that factor, and we may see a more divided, less effective, more easily defeated insurgency.

FISH IN A BARREL

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Matt Yglesias offers some deserved criticism of Stanley Fish’s peculiar Times op-ed. Fish basically argues that the authors’ “original intent” is the only accepted or justifiable grounds for constitutional interpretation, because words have no meaning apart from the ones willfully imbued in them by writers. For those of you keeping track at home, that’s two false conclusions (everyone believes in original intent, and only people who believe in it are right) based on a false premise (all that’s in my writing is what I intend to put there). As Matt writes:

I write, “I went to the store and bought sex toys.” What I meant to say was that I bought six toys. Nevertheless, I wrote “sex toys” which means something else. There are two kinds of meaning here — the meaning I had in my head, and the meaning of the sentence. We certainly wouldn’t conclude that the sentence as written was meaningless simply because it was the result of a mistake. Indeed, the whole idea that typos, malapropisms, and other mistakes are possible depends on the idea that written and spoken words have objective (or at least intersubjective), public meanings that are distinct from the intentions of the writer/speaker. If the world were the way Fish thinks it is, it would never make sense to say somebody “misspoke” because the meaning of what they, in fact, said would, by definition, be what they meant to say.

While Matt effectively shoots down Fish’s premise, he doesn’t mention what seems to me the most fundamental problem with original intent (as distinguished from the practical, logical, and historical ones): it’s inherently and irretrievably undemocratic.

In a democratic society, the role of a constitution which often exerts a counter-majoritarian check on democratic initiatives is safeguarded by the recognition that that constitution has a democratic legitimacy of its own. Looking ahead, we have democratic means to change the nature of that constitution, though through processes made more difficult by the requirements of that constitution itself. And looking back, the short-term restrictions on our democratic options reflect the long-term democratic choice made by our predecessors to accept that constitution and those constraints. In other words, we accept that the constitution stops us from democratically passing a law granting titles of nobility not only because with a supermajority we could democratically ammend that limitation but also because Americans (the white male ones, that is) democratically chose a constitution with that limitation in the first place.

And what did our forebears ratify? The words of the constitution. Not the original (make that contemporary) intent of its authors. As Frederick Douglass argued 145 years ago, to hold the voters who ratified the constitution – and ourselves – to the “secret motives” of its authors, rather than to the text they ratified, is “the wildest of absurdities.” Even if we could determine what exactly the framers had in mind, we would do well to remember that what the framers had in mind never came up for a vote. And that they had many different things in mind, out of which they compromised on a particular text, likely each hoping it would be understood in a somewhat differently shaded way.

If there’s any original intent that should bear on our reading of the constitution, it’s the original intent of the voters. Here too, though, it bears keeping in mind that a constitution is by nature a democratic compromise among people of differing beliefs to set bounds on future majoritarianism. So while there’s no Rawlsian veil of ignorance in play, there’s at least some haze. In ratifying a constitution, we provisionally inhibit our chances of legislating certain of our majority views in exchange for provisional protection against legislation contradicting certain of our minority views. A, B, and C, for example, may all see fit to paly it safe and ratify a constitution forbidding discrimination against a particular letter, each seeing it mainly as a protection for itself and not for others. To point out afterwards that protecting C may not have been the original intent of 2/3 of voters would miss the point.

We should also remember, sadly, that many of the Americans who for several decades were systematically read out of the constitution were left out of the process of drafting and ratifying it in the first place.

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Not much new to say about the State of the Union Address because, well, it didn’t say much new. Substance-wise, it was more of the same, rhetorically, it was flat, and as for the delivery – well, no surprises there. Bush is still trying to pull a fast one on the American people with his social security numbers; when he said that FDR could not have imagined today’s economy, it was hard not to wince at the steady rollback of the New Deal of which Bush’s agenda is but the latest example. His allusions to FDR in defending his foreign policy were equally unpersuasive. If Bush expects plaudits for courage for politely suggesting to his allies in Saudi Arabia that their people get more opportunities to express themselves (meaning what? Voting for American Idol?), then we really are defining deviancy down. The moment shared between the Iraqi and American women was indeed poignant. It was, I couldn’t help thinking, an interesting echo of the moment shared between grieving Iraqi and American mothers in Farenheit 9/11. Whether one agrees more with George Bush’s or Michael Moore’s view of the architects and consequences of that war, there’s a great deal of chosen and unchosen sacrifice and suffering that should be sobering for all of us. Bush’s stated commitment to the advancement of liberty, of course, didn’t stop him from once more floating the writing of bigotry into the constitution. Just another reason that Bush’s eager exclamations of liberty fell as flat as his last line about the long and twisting road to freedom, a pale shadow of a truly great American’s promise (more urgent and more seemingly distant than ever) that “The arc of history is long, but it bends towards justice.”