Tag: United States Bill of Rights

Stevens Advocating for the Liberal Constitution

John Paul Stevens, the former Supreme Court justice whom Lee once called a dick for his decision in Raich v. Gonzalez, has a book out about how to rewrite the Constitution so that liberal agendas will be easier to advance. I wish I were joking about that.

There’s been a lot of noise about rewriting the Constitution from the Left lately. You can read screeds about it here and here (that’s from Brooks, but he’s practically a lefty these days). The basic complaint is that our system has created gridlock and stops the President from doing things that need to be done so we should drastically overhaul it. Needless to say, these essays vanish very quickly once Republicans are in power and stopping the President from doing whatever the fuck he wants is suddenly a good thing again.

You can read a really good response to this nonsense here, but months ago, I marked down this tweet as the absolute perfect response:

Stevens, to his credit, was one of the few justices — left or right — who cared about civil liberties. But like many lefties, he thinks the only problem with our Constitution is that it doesn’t give government enough power. So, in his new book, he proposes six constitutional amendments. I’ll get to the first one in a minute but here are the other five. You can go to Hot Air for the in-depth descriptions.

  • An “Anti-Commandeering Amendment” This would essentially ramp up the supremacy clause and break the power of the states to oppose federal law. If I read this correctly, it would mean that no state could sue against Obamacare. It would mean that pot would be illegal in every state again — no surprise from John Paul “Raich” Stevens. It would also mean — and liberals never do seem to see the flip side of this — that President Santorum could outlaw abortion nationwide with a stroke of his pen. You can probably guess what I think of this idea. Our federalist system does stop the federal government from imposing “good” laws on the entire nation; it also stops them from imposing bad ones.
  • An Anti-Gerrymandering Amendment — I wouldn’t really have a problem with this, as gerry-mandering has created huge problems for both parties. But I’m curious whether it would be applied to districts gerrymandered to create majority-black districts.
  • An amendment to legalize campaign finance law. A question: do people never learn from history? The last time we let our political twitches produce a government-empowering amendment, we got Prohibition.
  • A Sovereign Immunity Amendment. This would enable the prosecution of states and state officers that violate Congressional laws and amendments. If I read this correctly, it means that every state official in Colorado and Washington could be arrested for violating Federal anti-drug laws.
  • Amending the 8th Amendment to outlaw the death penalty.
  • Really, this is unworthy of a Supreme Court justice. There’s no subtlety; no concession to any conservative interests. It’s just another liberal wish list. I don’t find it any more insightful that the ramblings of some bonged-up college freshman.

    But the real beauty is in his proposals is the one I left out. In an appalling op-ed, Stevens argues that we should change the second amendment:

    For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

    None of this is correct. The history of the Second Amendment doesn’t start with Miller, it starts with founders who stated openly and repeatedly that the Amendment was meant to protect an individual right. And yes, that applies to modern weapons just like the First Amendment applies to the internet (or should; you never know how SCOTUS will move).

    As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arm.

    Just like they have the ultimate power to decide what constitutes cruel and unusual punishment; the power to decide when something restricts free speech; the power to decide when someone’s fourth amendment rights have been violated; the power to decide when someone is being discriminated against. In short, just like the kind of powers Stevens liked to use when it came to civil liberties he supported.

    That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

    No word on if Stevens wants the First Amendment abridged to read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof as long as it is Christianity; or abridging the freedom of speech, or of the press of the government; or the right of the people peaceably to assemble with permission, and to petition the Government for a redress of grievances as long as they ask nicely.”

    A Second Amendment written like that is no second amendment at all. It would completely abrogate any right to bear arms and allow the President to simply outlaw all firearms completely. Our right to bear arms would be completely dependent on the whims of our government.

    And, frankly, Stevens can drop that horseshit about how the purpose of the amendment is to “protect the states from federal interference with their power”. His other two proposed amendments would completely destroy that protection. If you’re going to change the Second Amendment like that, just repeal it. Don’t put on a fig leaf about state militias when you’ve completely gutted federalism.

    See, this is why amending the Constitution is hard and is supposed to be hard. This is why people like me get so uppity about it. Since the day it was written, powerful men have fought like hell to try to remove its restrictions on government power and erode our civil liberties. Stevens knows this. He was very big on recognizing when our civil liberties were being eroded in attacks on the fourth, fifth, sixth, seventh and eight amendments. But when it comes to amendments and civil liberties he doesn’t like … well, we just need to amend the Constitution, don’t we?

    But … I’ll give him some credit here. At least he’s advocating the we change the Constitution. Most Democrats are advocating that we completely ignore it and that Barack Obama do whatever the hell he wants. So while I may think Stevens’ ideas are bad, at least he has the integrity to advocate the right way to go about them.


    Time Magazine has a front page article on the Constitution and the debate over it that is so hackneyed, so stupid, so factually challenged, that it must have been written by a summer intern snorting coke off the asses of drunken … oh, fuck, it was the Managing Editor? And he just sent two years at the National Constitution Center? What we he doing there, licking hallucinogens off the tiles? Even the guy who swept the floors would have better grasp of the Constitution than this:

    Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: “The Constitution was written explicitly for one purpose — to restrain the federal government.” Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before. (See portraits of the Tea Party movement.)

    If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.

    Honestly? If a student turned this into class, I’d fail them. The Constitution absolutely and most definitely limits the powers of the federal government. It spells out specific powers that it has, lays out rights it can not violate in using those powers and closes with: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” I guess the guys at Time are too wise and erudite to be bound by declarative English sentences. But to most of us, the meaning is all too clear.

    A full deconstruction of Time’s nonsense can be found here. Stengel tries to argue his way to supporting Obama’s actions in Libya, calls on Obama to unilaterally raise the debt ceiling, justifies Obamacare and argues for getting rid of birthright citizenship. The Obamacare argument is particularly bad as he argue that all medicine counts as interstate commerce because doctors buy their stethoscopes out of state.


    What this is really all about is the Lazy Liberal Man’s Way of Amending the Constitution. As I have argued before, people use “living Constitution” arguments because they are too lazy or their views too unpopular to go through the process specifically designed to change and update the Constitution: the amendment process. The abolitionists, the suffragettes, the early 20th-century progressives, the civil rights leaders — these people did what was required to change our country. It took decades and they had to fight like hell. But the result was a clear, decisive and absolute victory that changed our country for the better (well, mostly, prohibition and income tax were big mistakes).

    Living constitution people want to go through the backdoor, to shove their ideas into the Constitution purely by dint of their moral and intellectual superiority. Persuading a supermajority of the country is simply beneath them. It’s laziness and condescension, pure and simple.

    And the danger of “living Constitution” arguments can not really be overstated. Once you’ve bought into the idea that our founding document is just a list of suggestions, everything is on the table. Even of our freedom of speech founders. The beauty of being literal about the Constitution is that everyone knows what the rules are. The law is no longer arbitrary or subject to the whims of legislatures and prosecutors. When the Constitution says we have a right to free speech and we take that as literally as possible, we know we’re free. In a living Constitution world, we can suddenly and arbitrarily find ourselves in prison because someone decided you can’t call the President a dumbass.

    Fareed Zakaria has a smarter article on this subject. My read is that he’s calling for either a Constitutional convention or a series of amendments. I would not oppose either although I prefer amending to any replacing.

    As much as I agree with the methodology, I disagree with Fareed’s suggested changes. He suggests abolishing the electoral college. I oppose this because the electoral college forces candidates to build a national consensus rather than running up huge majorities among their base. And it’s really only made a difference twice in American history, so I really don’t see the crushing need to change it now.

    He also suggests changing the Senate:

    The structure of the Senate is even more undemocratic, with Wisconsin’s six million inhabitants getting the same representation in the Senate as California’s 36 million people. That’s not exactly one man, one vote.

    It’s not intended to be. The senators are supposed to represent the states, not the people. If you proportion the senators by population, what is the point of the Senate? It becomes just a second House with bigger egos and longer speeches. Supporters of changing the Senate often resort to ridiculous arguments, trying to find the minimum number of Senators who could stop a piece of legislation and claiming this lets 1/3 of the country veto the wishes of the other 2/3. This argument came up a lot with Obamacare. But it’s a bogus argument since (a) even with Obamacare, the national consensus was against it; (b) we’re not a democracy.

    Anyway, these two articles got me thinking about what kind of Constitutional Amendments I would like to see, assuming our political class could be bothered to invest the energy. Use the comments to suggest your own, but here’s a few I’d go for:

    Balanced Budget Amendment: The GOP almost got this in 1995 and I wish it would come up again. I’d prefer one with a supermajority requirement on tax hikes and maybe an outlet in case of war or national emergency. But it’s clear that someone’s hand has to be forced on this.

    Right to Privacy Amendment: Phrased like so: “The right of the people to engage in private activity shall only be infringed when Congress can demonstrate a compelling public need.” This would simply clarify the 9th and 10th Amendments, shifting the null hypothesis to that of freedom. Today, we have to show that a bad law violates our fundamental freedom. Under this amendment, we would be assumed to be fundamentally free and Congress would have to justify breaking that freedom.

    Term Limits: This is one of the more controversial. The usual counter-arguments, however, don’t carry much weight with me. Yes, the people can vote out our Congressmen. However, the system has been so rigged through subsidies of incumbents and gerrymandering that it’s extremely difficult. And the argument that we should have an experienced Congress just crosses me as bizarre. The last ten years have seen some of the most experienced Congresses in history drive the country into a brick wall. An experienced legislator is like an experienced thief; we don’t really need them.

    When I lived in San Antonio, we had term limits on the city council. It was awesome. They were much more conservative than any city council I’d ever seen. Conservative in the “get off my lawn sense” of keeping taxes law, government small and not subsidizing stupid “projects”. What term limits are is corruption limits.

    Plain English Amendment: I ripped this one off of Heinlein. It’s a simple fact that many of our laws are so vague and written in such opaque lawyerese, that people can violate the law without knowing it. Hell, the fucking IRS doesn’t know our tax code. To me, this makes the laws of questionable validity. No one would tolerate it if laws were written in a secret code that no one understood and you would only know if you broke them by being jailed. Yet this is effectively what we have. I would love to see an amendment that would require laws be comprehensible to the citizens to whom they apply. If a hundred college graduates read the law and only about three understand what it says, that law needs to go back to the word processor.

    There are other amendments floating around there that I am vehemently opposed to. You can probably guess them: the flag burning amendment, the anti-gay marriage amendment, amendments to enfranchise criminals or alter the electoral college or senate composition, an amendment to repeal birthright citizenship.

    Anyway, that’s my … Jesus, how long did this post get? … my dollar and fifty three cents.

    RIAA doesn’t like the 4th either

    Well, it looks like the recent issues with the fourth amendment and protections versus search & seizure has come to the attention of the RIAA, who has decided they’d really like to get in on some of that constitution-violating, as is so often their wont.

    The RIAA has been pushing the state of California to pass a new law that would allow completely warrantless searches for law enforcement, allowing them to enter and search any CD or DVD manufacturing plant without either notice or a court order.

    As we’ve seen repeatedly, Obama is the RIAA’s man, so if necessary I’m sure they can count on him to back this for them. (I still laugh at remembering the internet hipsters who seemed to think that Obama’s election would mean a T1 line with full torrent speed in every house and free pot to smoke everyday.)

    But the RIAA’s justification for pushing for these warrantless searches?

    The common trait, the trade group contended, was that the businesses were in “closely regulated” industries in which “the pervasiveness and regularity of the government’s regulation reduces the owner’s expectation of privacy in his business records.”

    So. Just to make that clear. The RIAA itself is saying that the government has eroded the fourth amendment to the point that grabbing a firehose and spraying down the mud isn’t going to hurt at this point. I mean, this is not an exaggeration, that is actually what they’re saying. “Well, you already let the government boss you around and get in your business. Why not some more?”

    “We’re literally talking about walking into a plant, walking up to the line and ensuring that, indeed, the discs are in compliance,” he said. “I don’t think the scope of the search is something a regulator needs to be worried about.”

    Those are the actual words of Marcus Cohen, RIAA executive. That is actually what he thinks will allay people’s fears. “Oh, we’ll just walk in and do what we like. What’s the big deal about that?” Nothing, if you’re the hero of a friggin’ console RPG and are used to wandering into random peoples’ homes and rifling through their belongings for stuff you need.

    And despite the fact that it’s essentially admitted to be unconstitutional, I’m sure it will come as an utter shock to all of you that they nevertheless have the outright support of Democrat senator Alex Padilla behind them and it’s already passed multiple committees. A Democrat not giving a shit about the constitution, and pushing through unconstitutional laws? A California Democrat, at that? I know I was shaken to my core by such revelations.

    Apparently we on the right have spent so much time worrying about the Second that we didn’t notice the Fourth was wounded until it was down and surrounded by hungry wolves. Or maybe we’re to blame for letting it take its licks in the first place because we wound up “okay” with it getting a few kicks when it served the “greater good”. But whoever put it in its current position, it’s pretty clear that the left has smelled blood. The Constitution, and specifically the Bill of Rights, was put there to outline and limit the government’s power, and as the Democrats have shown (and occasionally stated, when they got a little too honest), “limits on government power” is a dirty phrase considered somewhere on par with “your mother sucks cocks in Hell”. If they can effectively render one amendment from the bill of rights null and void, then that means the other ones are fair game. It would be precedent, just like the RIAA is using precedent to say “It’s already been broken, why not break it more?”

    Now the question becomes, are we going to fight off the wolves, or just hope that there’s something left when they’re done eating?