Know your (state’s) rights
The Wall Street Journal ran a piece recently about the current anti-Washington sentiment reviving an old debate over the 17th Amendment. This Amendment, which provides for the direct election of US Senators, has been denounced by some Republicans. A repeal of the law would involve appointing senators by state legislators.
“People would be better off if senators, when they deliver their messages to Washington, remember the sovereignty of the states,” Mike Lee, who supports repeal, told reporters recently. Mr. Lee is a Republican running for the U.S. Senate from Utah. Proponents of repeal say the amendment wrecked the founding fathers’ balance between national and state governments, removing one of the last checks to unbridled power in Washington. Opponents counter that direct election of senators, long a goal of the Progressive movement of that era, expanded democracy.
This raises several interesting questions. First, the idea of “remembering state sovereignty,” or “Senators representing states,” is worth exploring. What exactly does this mean? A state, after all, is not a moral agent that is capable of being represented the same way a person or group of persons is. Perhaps this just means representing the citizens living in that state – but if this is true, why does direct election of senators not provide for this?
Second, we can ask what the status of Federalism and state sovereignty is in modern America. At the time of the Constitution’s writing, it was reasonable to assume that different states had different political and economic values. But geography no longer seems to correlate as strongly with political or economic beliefs, considering how often Americans move and how quick information is disseminated. So, is Federalism an historical artifact, or somehow central to American political values?
Finally, even if Federalism is essentially American in some important way, is there any truth to the Progressive stance that direct election of Senators limit democracy? If so, what should be done about it?
-Han
Photo by Flickr user Marion Doss used under a Creative Commons Attribution license.
Bring it on back?
A piece from Newsweek explores (and criticizes) tea party veneration for the Constitution. What I found most interesting is a distinction between two types of “originalism” in Constitutional interpretation.
While conservatives generally prefer the second approach, many disagree over how it should be implemented—including the Supreme Court’s most committed originalists, Antonin Scalia and Clarence Thomas. Thomas sympathizes with a radical version of originalism known as the Constitution in Exile. In his view, the Supreme Court of the 1930s unwisely discarded the 19th-century’s strict judicial limits on Federal power, and the only way to resurrect the “original” Constitution—and regain our unalienable rights—is by rolling back the welfare state, repealing regulations, and perhaps even putting an end to progressive taxation. In contrast, Scalia is willing to respect precedent—even though it sometimes departs from his understanding of the Constitution’s original meaning. His caution reflects a simple reality: that upending post-1937 case law and reversing settled principles would prove extremely disruptive, both in the courts and society at large.
The piece goes on to criticize the Tea Party’s “Constitution in Exile” beliefs. My own distaste for Constitution and history worship has been well documented on this site, but I wonder if this distinction makes any difference in the final analysis. After all, if the Constitution really is in exile, maybe there is an argument responsible citizens should try to bring it back.
-Han
Photo by Flickr user bsryan used under a Creative Commons Attribution license.
A pledge to (repeal) America
Is the Republican plan really a plan at all?
The House Republican Caucus will unveil its “A Pledge to America” this morning, a governing plan that echoes the “Contract with America” Newt Gingrich (and current minority leader John Boehner) used in 1994 to help sweep Republicans into the House majority. The final version of the pledge is already available, as is a video of the preamble narrated by someone who sounds like the “Frontline” guy.
There are at least two elements of “A Pledge to America” that should interest TPP readers. Read more
Should the song remain the same?
Writing for Time, Adam Cohen criticizes Supreme Court Justice Atonin Scalia for his opinion that the Constitution does not bar sex discrimination. In the piece, Cohen criticizes “originalism,” a judicial philosophy subscribed to by Scalia, which interprets the Constitution strictly on its plain language, as intended by the writers. Arguing for more liberal judicial philosophies, Cohen writes:
And the fact that we have a very different country now from the days of the Founding Fathers is why Justice Scalia is on the wrong side of this debate. The drafters could have written the Constitution as a list of specific rules and said, “That’s all, folks!” Instead, they wrote a document full of broadly written guarantees: “due process,” “freedom of speech” and yes, “equal protection.” As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution’s framers created an “organism” that was meant to grow — and to be interpreted “in the light of our whole national experience,” not based on “what was said a hundred years ago.”
Makes much more sense to live in the present tense
Over at CNN, Will Bunch bemoans how Glenn Beck is attempting to rewrite history in order to support his own political agenda.
For thousands of followers […], there is a genuine desire to relearn American history. The only problem is that what they’re learning is bunk. It’s not history as it happened, but rather a Beck-scripted, Tea Party rewrite of history that demonizes Obama, Democrats and progressive activists.
This problem is a consequence of the harmful reverence for history that I wrote about earlier this week. If we didn’t have such a history-worshiping political culture, then no rewrite of history would have such an effect on our present day politics.
For example, Glenn Beck teaches his viewers that America’s creation was rooted in Christianity. Whether this is historically true or not, it shouldn’t matter. Even if America was rooted in Christianity, it shouldn’t settle the issue about whether today’s America should be a Christian nation.
The solution is a greater reverence – or at least awareness – of philosophy’s place in politics. If we had such a political culture, Glenn Beck and others would have to argue their case with solid theory and sound logic. And if he can do that, then maybe he’s right.
-Han
Photo by Flickr user Gage Skidmore used under a Creative Commons Attribution license.
All those yesterdays
Philosophy, the Constitution, and respect for the Founding Fathers
According to a report by the Associated Press, Republicans have proposed forty-two amendments to the Constitution during the current Congress, compared to twenty-seven such proposals by the Democrats (one third of which are part of a package from a single member).
This is surprising because many Republicans won their seats as strict defenders of the Constitution’s “plain language.” One of these politicians, Rep. Paul Broun of Georgia, explains away the discrepancy.
He said the Founding Fathers never imagined the size and scope of today’s federal government and that he’s simply resurrecting their vision by trying to amend it. “It’s not picking and choosing,” he said. “We need to do a lot of tweaking to make the Constitution as it was originally intended, instead of some perverse idea of what the Constitution says and does.”
Apparently, politicians like Rep. Broun appeal to the intentions of the Founding Fathers as their political philosophy, not the Constitution itself. Variations of this “Founding Father-ism” exist across the political spectrum, yet there are several problems with this position. Read more
The big rethink
The U.S. Senate doesn’t have it easy these days. George Packer’s full-frontal assault on the upper chamber of Congress in last week’s New Yorker has been making the rounds in the national media, and many have been eager to agree with his excruciating portrait of a dysfunctional institution:
The two lasting achievements of this Senate, financial regulation and health care, required a year and a half of legislative warfare that nearly destroyed the body. They depended on a set of circumstances—a large majority of Democrats, a charismatic President with an electoral mandate, and a national crisis—that will not last long or be repeated anytime soon. Two days after financial reform became law, Harry Reid announced that the Senate would not take up comprehensive energy-reform legislation for the rest of the year. And so climate change joined immigration, job creation, food safety, pilot training, veterans’ care, campaign finance, transportation security, labor law, mine safety, wildfire management, and scores of executive and judicial appointments on the list of matters that the world’s greatest deliberative body is incapable of addressing. Already, you can feel the Senate slipping back into stagnant waters.
Along these lines, E.J. Dionne makes a radical suggestion in his Washington Post column today:
I’ve reached the point where I’d abolish the Senate if I could. It is more profoundly undemocratic than it was when the Founders created it and less genuinely deliberative — problems compounded by a Republican minority’s strategy of delay and obstruction.
Is it time to rethink the basic structure of our representative democracy? The idea isn’t so crazy. As Packer points out, “The upper chamber of Congress was a constitutional compromise between popular sovereignty and state sovereignty.”
If that compromise is no longer necessary, why do we need a Senate? The United Kingdom’s House of Lords, for example, has very little power. There’s no single correct way to structure a government.
Discussion of abolishing the Senate is unlikely travel far anytime soon, but there’s no reason why that’s the case. Sometimes thinking about our future means rethinking our past.
-Sam
Image used under a Creative Commons attribution license from Flickr user cliff1066.
Philosophizing cloth
The Muslim burqa and equal rights
On The New York Times’ The Stone, its new philosophy commentary series, University of Chicago Professor Martha Nussbaum wrote in response to Spain’s recent, narrow rejection of a ban on public wearing of the Muslim burqa. She gives a quick history of what Western political philosophy has said on the topics of equal rights and free exercise before examining five arguments commonly made in support of this sort of ban.
Her responses to the arguments are certainly convincing. Nussbaum effectively demonstrates the inconsistency or hypocrisy in Western resistance to burqas, and anyone who reads the piece is more likely to dislike the idea of banning burqas.
But her most compelling point is also the most unique: Westerners cannot seem to recognize the inconsistency of their arguments against burqas because they are Westerners, burqa-wearing is not traditionally Western, and burqa-wearers are not viewed as traditionally Western.
History helps
A reply to Han
In his post today, Han disagrees with some big guns–Sandra Day O’Connor and George Nethercutt, Jr.–arguing against the importance of historical knowledge for legal, policy, and political philosophy questions. Alas, I’m with Sandy and Chip on this one.
As to the law, Han writes: “It doesn’t seem to me that in order to understand the purpose and function of the Constitution someone also has to study the Philadelphia Convention of 1787.” Constitutional interpretation is not pure philosophical argumentation, even on interpretative theories that incorporate as much moral philosophy as possible into the process. What does the 5th Amendment’s “due process” language guarantee? Can we figure this out without historical knowledge, by merely analyzing the words de novo?
First off, the phrase itself is historically contingent, a term of art as it were, with roots in the 14th century Magna Carta, and we need to examine this history, as the Founders understood it, to even begin to discern what protections the words deliver to Americans charged with crimes. Secondly, that many judges before us have grappled with the phrase’s meaning is especially relevant for the rule of law, which depends upon the power of precedent, even if to a lesser degree in a Constitutional context. We don’t want judges to redefine the entire Constitution every year.
How the West was won and where it got us
Is knowledge of our country’s history necessary for engaged citizens?
A few days ago, an op-ed in the USA Today by Sandra Day O’Connor and George Nethercutt, Jr. lamented the lack of knowledge among Americans of the history of the nation and its founding documents. In their words:
Parents, educators and leaders at all levels of American society have a role to play in helping our youth develop a working knowledge and understanding of our nation’s founding papers, the American political system, lessons of principled leadership, basic economic principles and significant historic events that have shaped our nation. This basic knowledge of our past is critical to our present and to our future if we are to continue to enjoy the freedoms envisioned by the Framers.
What I find most interesting is the inclusion of both historical and civic education in this prescription for America. No doubt, most people would agree that a basic understanding of politics and economics is a moral imperative for engaged citizens in a democracy, but does historical knowledge have the same moral standing? The assumption here seems to be that without knowledge of American history, one cannot truly understand American institutions. I find this claim suspect.
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