The backers of Social Security knew it was unconstitutional; and a discussion about our unconstitutional republic
Terence Jeffrey writes
that the framers of the Social Security Act were aware that the old-age portion of the Act was probably unconstitutional. The Act passed a Supreme Court challenge, he continues, because FDR’s threat to pack the Court with six additional New Dealers intimidated the justices into approving the old-age section of the Act which otherwise they would have found invalid.
However, what I think is needed is not just a discussion of the constitutionality of this or that longstanding law, such as Social Security, but a comprehensive overview of all the legislation that would have to be thrown out if the Constitution were truly enforced. The unhappy fact is that much of the statutory and regulatory structure of modern America is unconstitutional. Maybe it’s within our power to do something about that, maybe it’s not. But before we can proceed further, we need to know the geography of the country, constitutionally speaking, in which we live. And currently we don’t.
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Leonard D. writes:
before we can proceed further, we need to know the geography of the country, constitutionally speaking, in which we live. And currently we don’t.
I am not sure what you mean. We have quite a bit of knowledge about the constitution of the modern U.S. government. It is nothing like the Constitution, true, but it does exist and it does act. For the student who has discovered that the constitution of the U.S. government is not the Constitution, and who really wants to understand the U.S. government, I can think of no better teacher than Mencius Moldbug. He has written many times, and always at great length, about this problem. I know he is overly verbose for your taste; so I can just refer you to this summary of his thought:
Items in the summary pertinent to understanding our constitution:
This is not exactly the summary I would make, but it’s fairly good. Certainly it portrays the problem America faces in a much different light than most people think.
Progressivism (also called Universalism) is responsible for the vast majority of the world’s problems today. It is a non-theistic religion descended in a direct line from the various Dissenter sects of England. Although the belief in God was dropped during the religion’s evolution in order to improve its ability to spread, the core of progressive beliefs are very similar to the Quaker beliefs of a few centuries ago …
The conflict between progressivism and conservatism
Progressivism always wins in the long run. Conservatism can at most slow down the implementation of selected progressive ideas. This is because progressives dominate the universities, media and non-governmental organizations which allows them to mold public opinion …
The US government
The Presidency and Congress are mainly ceremonial. The US is governed mainly by the permanent civil service bureaucracy although the real decisions are made at elite universities and then spread by the media and by non-governmental organizations. The universities, media and NGOs are all essential elements of the de facto government, which is referred to as the Polygon or the Cathedral. There is no conspiracy involved—the system is self-organized and self-perpetuating with no need for central leadership.
Progressive political activism is directed against the elected government and supports the unelected civil service bureaucracy. Anti-American political activism consists of pressuring the US to live up to its own progressive ideals, and therefore is more accurately called ultra-Americanism. Both are effective methods of influencing US government policy in the progressive direction.
The criminal underclass is a military auxiliary of the progressives. The criminals see themselves as taking what’s rightfully theirs and waging war against an unjust society. Progressives enable and support this war by supporting ineffective crime policy.
I was not as clear as I needed to be. I did not mean a description of the “actual” liberal constitution of America such as Moldbug offers. When I said we need to know the “geography of the country, constitutionally speaking,” I meant we need a comprehensive view of existing U.S. laws, of which of them are unconstitutional, and of what would be entailed by a “reconstitutionalization” of the country.
M. Jose writes:
Your recent post on the Constitution I think, explains part of the reason for the enthusiasm of people for Ron Paul.
Whatever his flaws, he is the only candidate who actually seems to recognize and to point out the unconstitutionality of 20th-21st century U.S. governance.
Leonard D. replies to LA:
You are talking about a huge project here, fraught with a lot of difficulty and interpretation. For example, how does one interpret the Constitution? I assume you believe in some sort of originalism; but even within that there are a range of possibilities. You might say that it means what it says literally, according to the meaning of those words at the time. Or you might say it means what its authors meant, or what they meant to mean, using their other works to attempt to find meaning. (Who the “authors” really are is another problem.) Or it might mean what the average person then thought it meant. Etc. Even among nonprogressives, how are we to attain unanimity in the matter of interpretive philosophy? (Is mere majority sufficient?)
Ultimately the problem here is the same as the problem we face from liberals. There is no one interpretation of the Constitution. There are many. The strongest thing we can say is that there is only one text. But texts do not interpret themselves. Consider the question of whether or not welfare is constitutional. Certainly the Congress has the power to tax. And at least arguably, welfare is permissible under the welfare clause in Article I, section 8. But we might also argue that “welfare” there is only generally descriptive of the whole section, and it is not permissible under the 10th Amendment. (Personally, I am a fan of the idea of strictly enumerated powers, and so: no welfare.)
Another aspect of the difficulty of the project you are talking about that we have existing laws that may be constitutional, but which were created in an un-constitutional setting. Most U.S. law is created within the bureaucracy. Congress passes legislation to grant power to bureaucrats, who then regulations that have the force of law. One might hold that legislation by unelected bureaucrats is not legitimate, even though it would have been if it had been passed by Congress explicitly. Or one might believe the opposite.
Finally, it is worth mentioning the pure political impossibility of this. What are you talking about here is nothing less than abolishing the U.S. government, and thus destroying the U.S. establishment, as it currently exists. Not too likely. And if, by some miracle, you had this power—should you not go further? I follow Moldbug in this: democracy is constitutional, and democracy is the problem. Liberalism was caused by democracy, not vice-versa. But even if you wanted to stick with a largely constitutional design, would it not be better to improve it? For example, you might add a section in the Constitution dictating how it should be interpreted. Or a much more modest improvement: you should fix the number of Supreme Court justices in the Constitution (thus cutting off the obvious court-packing attack).
Well, I think you’re making my idea seem far too difficult and thus precluding something that would be useful. We don’t have to have everyone’s agreement on this. A small group who agreed on basic constitutional principles is all that would be needed for this project. This is, to begin with, an attempt to gain some understanding, not an attempt to change the laws. Since I’ve entertained at times at this site the idea of conservatives seceding from America, I can’t say simply and without qualification that I believe in America. But to the extent that I haven’t given up on America, I believe in the Constitution. I’m a “constitutional conservative.” But much of the existing structure of our laws and government is unconstitutional. Which throws everything into confusion and illegitimacy, because we claim to be based on the Constitution, yet we’re not what we claim to be. This loss of legitimacy, which is also a profound loss of clarity, also allows liberals to say that America is an indeterminate cloud and so we can do whatever we like to it, constitutionally speaking. So the question is: is there any practical possibility of returning America to conformity to the Constitution? In order to begin to answer that, we first need to know what major existing federal statutes, regulations, etc. are constitutional and what are not. Now apart from one or two areas that I’m more familiar with, such as the Incorporation Doctrine (everything based on it is unconstitutional), I personally do not have a grasp of this issue. Are the national parks constitutional? Is the Civil Rights Act of 1964 constitutional? And so on. I want that kind of overview.
If we believe in the Constitution, then saying we believe in it is not enough. We must seek to bring America back into conformity with it. But to do that, we must first understand in what ways America is not at present in conformity with it.
Maybe nothing can be done. Maybe all these unconstitutional laws, regulations, and practices are too deeply embedded in our society ever to be undone by any political or judicial process. But I want at least to know what those laws are. How can we possibly fix our country, constitutionally speaking, unless we understand what’s wrong with it? And if it turns out that fixing these things is beyond our power, then at least we will have gained that knowledge and we will be living in the world of reality. But as it is now, we are living in a fantasy world, because we say we are a country based on the laws and Constitution, but in major respects we are not. So we don’t know who we are. We are living a lie. I want us to live in the truth.
Gregory Lewis writes:
Kudos to your blog for raising fundamental issues, like whether modern day Americans are suitable for citizenship in a constitutional democracy. In a word, the answer is “No.” Fidelity to America’s founding principles presupposes a belief in transcendent reality or God. Since Hegel, all reality in the West has been subsumed under the “absolute” category of History, with belief in God as merely another Historical incident. Obviously, History is a false absolute because there is no standard—within or outside—for judging History, ergo the capital “H”—it functions as a pseudo-God. The necessary result is the hyper-equality of today’s moral relativism, which recoils at the notion of American exceptionalism, constitutional or otherwise. The Founding Fathers held certain truths to be self-evident. Modern Americans do not. Like Biblical Esau, the West has repudiated its birthright for the equivalent of a bowl of soup.
Mencius Moldbug writes:
Let me try to make this as simple as possible and avoid my usual long-windedness.
[LA replies: A 942 word comment is avoiding your usual long-windedness?
[Mr. Moldbug replies: Considering the magnitude of the subject, yes!
[LA replies: I’ll post it, but it’s too long for me to read and reply to at this point.]
The Constitution does not exist. America has no Constitution. We have not had a Constitution for 75 years. We have a constitution, of course; every country does. Ours is called “constitutional law” and is taught in every law school. Its links to the Constitution are entirely spurious—it could be derived from any Constitution, or none at all. If this doctrine of mine had a name, it might be called “constitutional nihilism.”
Who is the inventor of constitutional nihilism? Me? No, the last Constitutionalist justice of the Supreme Court—James McReynolds:
“This is Nero at his worst. The Constitution is gone.” That was 1935—so, 76 years, to be exact. But really, of course, it’s 1933.
When is a constitution dissolved? When it is replaced, in actual force, by another constitution which contradicts it. Independent North America, by my count, has had four constitutions—the Articles of Confederation, the federalist Constitution of 1789, the centralist Constitution of 1861, and our own dearly beloved New Deal system of progressive constitutional law. The German journalist Ferdinand Lassalle once expressed the essence of the question:
“If, gentlemen, you have an apple tree in your garden, and hang a ticket on it, bearing an inscription, “This is a fig tree,” has the tree then become a fig tree? No, and even if you gather together the whole of your household, or all the inhabitants of the country, and make them swear loudly and solemnly, “This is a fig tree!” the tree remains what it was, and the following years will show that it will bear apples, and not figs.”
Constitutional questions, concludes Lassalle, are therefore in the first instance not questions of right but questions of might. “The actual constitution of a country has its existence only in the actual conditions of force which exist in the country; hence written constitutions have value and permanence only when they accurately express those conditions of force which exist in practice within a society.”
Consider the logical difficulty of the “constitutional originalist.” He is forced to admit that his Constitution has nothing to do with the actual conditions of force which exist in the country. In other words, it is not the actual constitution of the country—but the former constitution of the country. It shares this status with the Articles of Confederation, not to mention the entire body of British law that preceded the Articles, not to mention the Saxon law that preceded the Norman Conquest, not to mention the doctrine of state sovereignty which was abandoned in 1861, though never shared by everyone in 1789 (an issue the originalist tries very hard not to notice).
The most fashionable test for originalism is Randy Barnett’s test of “original public meaning.” What did the ratifiers mean when they wrote the original document. I have a better test: what would the ratifiers think if a time machine brought them back to 2011? Without a doubt, what they’d think is: what on earth does this appalling government have to do with the document we wrote? In other words, they would agree with me that the Constitution is a historical document of no present relevance.
Why shouldn’t the originalist be an originalist for the Articles of Confederation? Or for the King of England? Neither of these constitutions was abandoned in any legal way. Haiti has had 23 constitutions. I am not an expert in Haitian history, but I guarantee you that the transition from the 14th to the 15th Haitian constitution was not accomplished by any sort of legal procedure. Which Haitian constitution is valid? The 14th? The 15th? The 1st? The 22nd?
Moreover, in practice, the originalist program of trying to restore the abolished Constitution piecemeal, decision by decision, is simply retarded and is making no progress at all. There is no such thing as restoring an abolished Constitution. Even if you were to roll back stare decisis to the exact legal regime that the U.S. enjoyed on FDR’s inauguration, the result would not be America’s third constitutional regime—but its fifth.
What do you mean when you say you believe in the Constitution? Do you mean that (a) it’s in force, or (b) it’s not in force, but it would be a good Constitution if it was? You can’t possibly believe (a). As for (b), where is your evidence? The first duty of a Constitution is to preserve itself—ours failed. Supposing we actually managed to restore it, in entirety, wouldn’t it just fail again?
The reality is that when you don’t have a Constitution, you exist in a state of simple force. The mendacity of the “living constitution” doctrine speaks for itself—if the force ever exists to repudiate it, the moral judgment will instantly follow. The constitutional nihilist is firmly convinced that he has no constitutional rights whatsoever against his enemies, who are now in power. He refuses to acknowledge, however, that his enemies have any constitutional rights against him. Should he and his friends attain power, their first task will be to write their own constitution, America’s fifth.
The living constitution is really a dead Constitution. We know who killed it. I refuse to allow the murderers of the Constitution to claim its protection. Perhaps you’ve heard the old definition of “chutzpah.” I hear that definition every time I read of some criminal’s “constitutional rights.” It’s not an age of rights—it’s an age of naked force. I despair, however, of ever bashing this reality into the heads of American conservatives.
Leonard D. writes:
Your reply touches on a variety of issues, so mine will also.
First, I do not think there any practical possibility of returning America to conformity to the Constitution. “Progress” in democracy is entropy: it always increases. So this discussion is an intellectual exercise. Nonetheless, I think it has value despite that. I also want us to “live in the truth.” (A lovely slogan, that.) And part of that is to see truthfully the difference between the Constitution and our constitution.
I think it likely you can find “a small group” to discuss just about anything you want, among your readers, certainly for something as important as the Constitution. You are a leader. So, read up on legal textual interpretation (the Wiki page I linked on originalism is decent start), and state your views.
If you want my opinion: almost everything the government does is un-Constitutional. [LA notes: In Leonard’s original comment he used the expression “USG” for the U.S. government. I have changed each of his references to “USG” to “the government” or “the U.S. government.” I do not allow the phrase “USG” at this site, because it connotes not criticism but outright hostility to the United States of America.] I do not I take a strict view of enumerated powers: that is, I believe the government was (and still ought to be) chartered to do only the particular things mentioned in the Constitution (particularly article I section 8, and nothing else. (This is what the 10th Amendment means.) However, contrary to your view, I do think that “incorporation” is justified, by the 14th Amendment. Note that I say this regretfully: I prefer non-incorporation and “the laboratory of the states.” I oppose many amendments as unwise, but I admit that they are now part of the Constitution and so must be dealt with.
So, for the specific items you mentioned: in my opinion the national parks are not constitutional. Same for the Civil rights Act of 1964, most particularly Title II (which forbids private discrimination). One way of dealing with the mismatches between constitution and Constitution would be by amendment. If forbidding private discrimination is that important, amend the Constitution to allow the Congress to forbid it.
Incidentally, on the matter of interpretative philosophy you can see that interpretation is a much bigger matter for the loose constructionist than the strict, simply because in my world, the federal government would do so very little.
Live in the truth!
Richard O. writes:
An excellent post.
I think your idea expressed elsewhere is correct—that liberalism is too entrenched and that only a complete collapse will extirpate it. Welcome to the world of Chinese dynastic rise and fall.
I recently at a dinner with an attorney who asked me if the Constitution is “their” Constitution or “ours.” “Not theirs” was a good answer because we know how decrepit that Constitution is. “Ours” was the best answer because that “Constitution” is the one that allows us to do whatever we want because we “have the power” to do what suits us. If one has the power to ignore the Constitution, then it’s fine to do so provided, I suppose, that one mentions “Marbury v. Madison” and “living Constitution.”
This from someone who’s sworn twice to preserve and defend the Constitution. If I get it right, judicial review under Marbury was actually the green light for judicial supremacy and ad hoc constitutional amendment by any transient majority of five. This salutary development occurred in 1803 when there was still ink in the inkwells at Philadelphia.
A whole fourteen (14) years after the formation of the first government of the U.S.—when the original drafters were still alive—all that they and the conventions in the States had drafted, debated, and ratified the Constitution had been stood on its head. A constitutional revolution without a murmur of protest!
In essence, this is the thinking of American legal profession. So principled examination of what laws are or aren’t in accord with the Constitution isn’t going to get much support from them.
The original constitution enjoyed some currency until the time of Lincoln but, after his presidency, it was of academic interest only to zealots and malcontents. [LA replies: That’s ridiculous. After the existential emergency of the Southern secession and the Civil War were past, the government returned to what it had been before, except for the three post-war Amendments. The federal government was just as “inconsequential” (to use Rick Perry’s phrase) to most Americans in, say, 1890 as it had been in 1850. The idea that the U.S. stopped being constitutional at the time of the suppression of the Southern Rebellion is one of those baseless ideas the embrace of which has completely discredited paleoconservatism as an intellectual movement.] I can count on one hand the people in my adult life who have had a strong interest in the Constitution and who evinced the least concern at its perversion. [LA replies: Well, no wonder Richard! If you’re telling people that the Constitution was irreversibly perverted by the necessary and just defeat of the South’s attempt to destroy the United States, rather than by the judicial decisions of the 20th century, then of course you’re not going to get any listeners.] Even the German, Soviet, Chinese, N. Korean, Cuban and Zimbabwean horrors of this and the previous century have not been sufficient to awaken educated Americans to the dangers of untrammeled state power, not to mention awaken them to the genius of the Constitution and its imperiled attempt to prevent history’s familiar despotism.
Can surveying the wreckage really help? I applaud the idea and, like many, do what I can to inform, warn, and repair. Given the fatuous opinions of my attorney acquaintance, however—and much exposure to lawyers generally—I’m inclined to think it’s an exercise in pounding sand.
I periodically drill out portions of my rear wheel wells on my aged automobile and refill the holes with various compounds hoping that I’ve solved the problem. But, the rust invariably makes its slow steady reappearance. Doubtless a failure of technique but I submit it as something emblematic about the likely success of the exercise. As Hamilton observed, “the mass of the people[,] … turbulent and changing, … seldom judge or determine right.” What participant in the Social Security of public welfare systems cares for constitutionality? “Unconstitutional” surely means “slight alteration” of either system in the direction of solid foundation, if that’s possible.
Leonard D. is correct that democracy causes liberalism and that liberalism is the problem. That is, liberalism defined as “Give me more.” It’s an unstoppable force and we are witnessing its devastating destructive force in the feeble democracies of the Europe and here. The most putrid doctrines can be heard in the public square from the mouths of Farrakhan, Shabazz, Wright and Cone. Figures of honor and emulation in some quarters and I doubt that too many of their followers care for nice questions of originalism.
Speaking of which, I think Leonard D. overly perplexifies the matter of interpretation. He’s quite right about enumerated powers but cedes too much to the force of the general welfare clause. Madison has the correct view on the impossibility of that theory, namely, that it swallows the idea of limited, enumerated powers. And strict originalism is the way to go, clearly, otherwise we have a constitutional version of “Till death do us part, or until something better comes along.”
I shares Gregory Lewis’s gloomy assessment of Americans’ ability to sustain a constitutional democracy. I disagree with him that “Fidelity to America’s founding principles presupposes a belief in transcendent reality or God.” I’m not a believer, more’s the pity, and I don’t think it necessary to look for some “transcendent reality” in order to absorb or revere our founding principles. To this day, I don’t get the concept of “natural law” or “natural rights.” I know how those in England found these useful concepts in trying to sell parliamentary supremacy for the reason that statutes were able to express and distill the “brooding omnipresence of the Common Law.” If that’s what it took, count me in.
However, now I think these terms are a source of confusion and are a distraction in that they refer back to God. I hate atheism for its squalor and meanness and lament my inability to share in the benefits of the Christian faith but see no reason to inject religion into an effort to understand the Constitution. [LA replies: Mr. Lewis was not injecting religion, but the idea of a transcendent reality. While there is room for disagreement on this, his point is a reasonable one, though not obvious. The belief in a multi-layered reality and in man’s inherently defective nature (a.k.a. original sin) is deeply built into the Constitution. At the same time, it is probably going too far to say that fidelity to the Constitution is impossible in the absence of belief in a transcendent reality or God. But one thing we do know without a doubt: atheists are far more likely to be hostile to the Constitution than believers. Truly conservative atheists are very rare, and are only conservative via unprincipled exceptions to their own atheism.] The Founders, or some of them, danced around this issue a bit and I say, Why risk a pointless alienation of friendly secularists from the cause of constitutionalism and originalism?
We should shift the basis of our claim a bit. Battery, illegal searches, an ex post facto laws are repugnant for their violation of areas that any damn fool with a pulse considers almost completely inviolate—one’s person and home. If there is to be a violation, then at least it should occur for a darn good reason—one that is a heck of a lot more substantive than some cop (or bunch of legislators in the heat of political passion) deciding to search me (or imprison or kill me).
Lydia McGrew writes:
I don’t know whether National Parks are constitutional on an originalist approach. Perhaps one might squeeze out something related to them from Article IV, section 3:
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The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
The 1964 Civil rights Act is quite arguably unconstitutional. Its constitutional basis is that old fallback of expansive U.S. government: the Commerce Clause. All the businesses in the U.S. are treated as if they engaged in interstate commerce, and it is on this pretext that Congress passed a law micromanaging their motivations in their employment practices. Speaking for myself, I do not at all accept that this would ever have been understood as a power of Congress following from the power to regulate interstate commerce itself, but that is, of course, what the courts have expanded it to mean—that Congress may regulate the details of every business in America. If one rejects that, then pretty much the entire federal regulatory structure should be gone. [A federal law telling businesses they cannot discriminate on the basis of Congress’ control over interstate commerce is a total outrage. While some provisions of the Civil Rights Act are arguably justified by the (original, unperverted) 14th amendment, the anti employment-discrimination provisions are plainly outside any constitutional power of the Congress.]
All federal welfare would, of course, be gone under an originalist interpretation of the Constitution, including Medicare, etc. [LA replies: I think you’re probably right.] So too would all federal regulations on controlled substances, a point that would thrill the hard-line libertarians. But I have to call ‘em like I see ‘em even at the cost of pleasing libertarians. We should remember that Prohibition originally required a constitutional amendment, as the limitation of federal powers was taken more seriously at that time. [LA replies: It might be arguable that drugs, being a national problem that the states cannot adequately meet, fall under Congress’ power.]
Here is one of the most interesting originalist questions: What about maintaining border security and setting up rules for the entry of immigrants? There is no explicit reference to it that I know of anywhere in the Constitution, and if I recall correctly, one of the state annulment crises (related to the Virginia and Kentucky resolutions) turned on this very question. [LA replies: But doesn’t the Constitution give Congress power over naturalization? So by extension it gives Congress power over immigration.]
The closest clause I know of is Article I, section 8. One item in the list is
to establish an uniform rule of Naturalization. [LA replies: I wrote my previous reply before I read this.]
to regulate commerce with foreign nations.
Mencius Moldbug writes:
“USG” or “the USG” is the abbreviation for the U.S. government used routinely in all State Department cables (as you can easily see on Wikileaks). I believe it is also used routinely in other agencies.
Can you explain why I or anyone else shouldn’t call this institution what it calls itself?
Every time without exception that I’ve seen someone use the term in written or discussion, it is used by someone who, like yourself, is expressing hostility to the U.S. government.
I did not know it was used in State Dept. cables. That is a different context (in which, among other things, shorthand is used) and doesn’t change what I said above.
Also, I’m not telling you or anyone what terms they should use. I’m saying that I won’t allow that expression at my site.
I also don’t allow the expression NAMs (non-Asian minorities). Why? It simply means non-Asian minorities, so what’s wrong with it? The answer is that there is something unpleasant and de-humanizing about it. It lowers the tone of discourse, just as “USG” does.
Daniel L. writes:
Lydia McGrew’s comment brought up whether the Constitution authorizes the federal government to control immigration. I agree with your comment that the naturalization clause in Article I, Section 8 does grant this power. This interpretation is supported by a clause in Article I, Section 9:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight …
The purpose of this clause was to prevent Congress from interfering with the slave trade until 1808. However, it does imply Congress would otherwise have the power to “prohibit” the “importation” of persons, i.e., restrict immigration.
On this subject, it is worth examining Chy Lung v. Freeman
, an 1875 Supreme Court decision which ruled that immigration was a federal responsibility. While much of the opinion consists of practical considerations, it states that the “passage of laws which concern the admission of citizens and subjects of foreign nations to our shores” is within the authority of Congress, presumably due to the naturalization clause. The power of Congress to regulate commerce with foreign nations, mentioned in Mrs. McGrew’s comment, is also cited as a justification.
Buck O. writes:
In your reply to Leonard D. you write:
But I want at least to know what those laws are. How can we possibly fix our country, constitutionally speaking, unless we understand what’s wrong with it? And if it turns out that fixing these things is beyond our power, then at least we will have gained that knowledge and we will be living in the world of reality. But as it is now, we are living in a fantasy world, because we say we are a country based on the laws and Constitution, but in major respects we are not. So we don’t know who we are. We are living a lie. I want us to live in the truth.
Sounds like a distinction without a difference. What difference does it make if modern liberals and leftists admit what they want, as, for instance, your regular correspondent Ken Hechtman does, or if they lie or deceive? What changes, except perhaps the tone? The growing divide remains. After all, who is doing the arguing? Those who know the “truth” and admit their agenda, or those who don’t admit it? Or, is the conflict between traditional conservatives and the simply ignorant? Don’t modern liberals actually know and believe what it is that they are saying. [LA replies: I’m not talking about the left’s or anyone’s lies. I’m talking about us understanding our present government and laws and the extent to which they are and aren’t in conformity with the Constitution.]
There’s no way in hell that the original intent of the Founders and of our Constitution is going to be recalled and restored. The odds are more overwhelmingly against that happening now, then they were against it when it was argued for and long debated, back then. And, we are no longer anything close to a like-minded “people” and majority. We are no longer a nation. The United States is just a country with a gigantic central government and is the new home to a growing diversity of minorities and mini-nations or uni-cultures. There is not a snowballs chance in hell that “we” can or will join back together in any kind of shared context of nationhood. It’s long been “game over.” We’re moving on to something completely new and unknown. There’s no way that America is going to get back home. There is no way that it can be brought back into existence by civic means.
So according to Buck, we should simply give up on the Constitution and not even appeal to it any more. For example, we should not bother arguing that Obamacare is unconstitutional. The states should not have sued the federal government in federal court over the constitutionality of Obamacare.
It’s so easy to say, “It’s over”—and so irresponsible.
Bob S. writes:
I’m quite surprised to see you write: “It might be arguable that drugs, being a national problem that the states cannot adequately meet, fall under Congress’ power.” I don’t know of any Constitutional principle that says that the federal government has authority to solve problems that it feels the states cannot adequately meet. I believe if there are problems that the states cannot adequately meet, which don’t fall within the enumerated federal powers, then a Constitutional amendment is necessary to give such powers to the federal government.
It’s especially surprising to hear you say that in the face of the fact that Prohibition was considered to require such an amendment, and in the light of your opposition to Obamacare (assuming your opposition is based in part on Constitutional principles, which I understand it to be). Or do you feel it arguable that if the federal government feels the “problem” of health care is not adequately solvable by the states, then the federal government ipso facto has the authority to step in?
We do have federal criminal laws, and federal police (the FBI), and federal prisons. Are all those federal criminal laws unconstitutional? Is the very existence of the FBI unconstitutional? So what is the boundary between federal criminal laws that are constitutional, and those that are not? I don’t know the answer, I’m asking questions, looking for information and understanding. How can better information and understanding be reached if the very effort is criticized as “quite surprising,” and “especially surprising,” because all these things are supposed to be already known? Do you know them?
Posted by Lawrence Auster at September 15, 2011 10:32 AM | Send