Louis Seidman: Is the Constitution Outmoded??

After the electoral stomping that President Obama gave to a hapless Mitt Romney as well as the slow transformation of once solidly red states into purple or even blue states, many people on the political left are chafing at limits on Presidential and/or majoritarian power. Whether it's Al Sharpton and Rachel Maddow getting their talking points from the White House and dutifully coming out against whatever the "evil Republicans" are doing or immigration rights activists urging the President to meet their goals through executive orders or law school deans jawboning the Supreme Court to not invalidate a law because the President really wanted it, some folks aren't fond of limited government or separation of powers, at least as long as their guy is in charge.

There's an unseemly amount of outrage, among the Right and the Left that the other side is able to thwart their goals by using procedural mechanisms built into our system of governance. This is currently most obvious among the Left but that's just because the Left is politically ascendant while the Right is still slightly better at unified opposition-or at least it was until the fiscal cliff deal.

If you ever took a civics or political science class, you know that we have three co-equal branches of government. The President doesn't get to make law, only enforce it. The courts can interpret but have no enforcement capacity. Congress can withhold money and write law but can't tell the executive branch what to do. So theoretically, each branch can prevent the other two from carrying out unlawful or unconstitutional actions. And human nature being what it is each branch tends to be jealous of its powers and prerogatives. Purely from spite one branch may oppose another branch and limit its options. This rivalry and jealously should work to the citizens' advantage as there is no all powerful centralized government which can create, enforce and interpret law all at once.

That's the theory of our Constitution.


But reality is quite different. There has been, almost from the beginning, a tendency for the President to stretch his authority and break rules. Sometimes there are strong people in Congress and the Courts to, figuratively speaking, throw something high and inside to make the President stop hogging the plate, so to speak. Sometimes, however, there aren't. Often, majorities don't see why they shouldn't win on everything.

There have been increasingly loud mutterings on the Left about getting rid of the Senate filibuster, having the President raise the debt ceiling unilaterally, dropping the electoral college, eliminating the Senate, ignoring the rule that spending bills must start in the House, and urging Presidential executive orders on every hot button issue that twists their knickers. 
Recently Louis Seidman, a Georgetown law professor, wrote that the time had come to junk the Constitution. Unfortunately he didn't say what to replace it with or, in my view, make a cogent argument about why the Constitution was bad. Seidman made the by now obligatory ad hominems that the Founders were long dead white men, had no idea what challenges we faced today, and were often racist slave owners. That's all true and all in the context he was using, completely irrelevant. Those same dead white men also placed freedom of speech and the right to jury trial in the Constitution. It seems a bit, well, difficult to blast something that you don't like as coming from evil white slaveowners and then keep quiet about things you do like but which came from those same evil white slaveowners. 

In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian.  If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

The professor assumes that everyone agrees that the Constitution is preventing progress and must be changed. I don't agree. It's frightening that he thinks the laws and constitutional restrictions against government taking of life, liberty or property should be followed just because we respect them, not because they're the law. We're supposed to have a legal system based in law, not fleeting respect. Respect is an arbitrary thing. As the country becomes ever more diverse it is critical to have baseline rules everyone understands. Seidman gives short shrift to the fact that there is a process both to amend the Constitution and to even start from scratch. The problem from Seidman's pov though, is to do that requires agreement from a wide variety of people with different viewpoints. The results might not be what he was expecting. I think Seidman is high on his own supply. But he may have a point that we need to change some things.

So give it a shot. You are Willy F***** Wonka and this is your chocolate factory! You are King or Queen for a day. The below questions are only examples. Don't let them limit you.

Questions

You and you alone can rewrite the Constitution. What stays or goes?

Free Speech? Commerce Clause? Police Searches? Presidential Authority on War?

Get rid of state authority completely? No private ownership of guns?

Place abortion rights and equal pay for women in the Bill of Rights?

Ignore the rules about being able to confront witnesses at trial?

Allow 15 yr olds to vote? Prevent people on welfare from voting? Have intelligence tests for voting?

Ban all forms of affirmative action? Make hate speech unprotected by First Amendment?

Eliminate standing armies? Get rid of the Federal Reserve?

The Supreme Court, ObamaCare and Moral Claims of Freedom

The Supreme Court has spoken. The constitutional battle over ObamaCare is over. The President and his much derided solicitor general won on most of the legal merits and the policy implementation. Even as the Supreme Court (rightly in my view) rejected the Administration's argument that the Commerce Clause allowed a mandate to purchase health care coverage, it (wrongly in my view) allowed the individual mandate to stand by wrongly characterizing it as a tax. Very few people besides Lauryn Hill, Wesley Snipes or Irwin Schiff question the government's ability to tax and spend so the Supreme Court called the mandate a tax and allowed it to stand.


So that is that. Short of a (currently unlikely) Romney victory and (quite unlikely) total Republican November sweep of the House and Senate, the Patient Protection and Affordable Care Act is a settled issue. There are some Republican governors who are threatening, as is their right, to refuse to set up exchanges or expand Medicaid while for the 33rd time the House voted to repeal the law but those are die-hard responses that won't "pull up ObamaCare by its roots" as some desired.


One thing that I've noticed is that partisans on either side make the mistake of personalizing the Patient Protection and Affordable Care Act (hence the name ObamaCare). This explains the insane "I will break him" attitude of many Republicans and the joy of some PPACA supporters who didn't really look at the fine print.

Too many PPACA supporters make the mistake of assuming that all opposition must, by definition, be based in dislike for the President. This is not the case. There are two major objections to the PPACA, which are shared in different ways by principled dissidents on both the left and right as well as some libertarians across the board.
First, there has been a reduction in freedom. This is the critical issue to people who tend libertarian and/or are opposed to the mandate. 


Unfortunately many people on the left and/or supporters of PPACA miss this entirely. They assume that anyone who invokes this concern is either a useful idiot (if they're leftist) or a liar (if they're on the right). Well maybe. But remember we talked recently about how many people on the left place equality and compassion as the highest and in some cases only moral values. This is an excellent example of that. In order to supposedly move towards equality and compassion the people who support the mandate are perfectly willing to reduce your freedom to make choices about what sort of health care you want. Now think about some of the other power-mad people that are in executive office around the nation. Can you imagine what a President Bloomberg might do with such powers? What sort of nation do you want? Do you want an activist relatively unrestrained centralized government?

I live in Michigan which has a higher than normal amount of truly obese people of all races. It's especially bad for Hispanics and Blacks. All else equal, obese people cost the public and private sector more in medical coverage. They clog the health care system with their (preventable) diseases and conditions. The slender, underweight, normal sized or moderately overweight workers pay money into a system that transfers much of that money to obese care. Why should I pay money to subsidize some free-loading fattie? So OBVIOUSLY we need a mandate that obese people (BMI of 31 or greater, or body fat pct of 32% or higher) join a health club and maintain that membership until their BMI falls to 28 or lower. To make it nice and constitutional we'll just levy a tax on porcine people who refuse the new mandate or can't lose the weight. Sound good?? Well if I happened to own a health club I would love this idea. 
People that drive trucks use more gasoline, contribute more to global warming and damage roads more quickly. And those doggone people won't stop buying trucks even as gasoline stays above $3/gallon. So OBVIOUSLY we need a mandate that everyone purchase either a Volt, a Focus, a Leaf, or a Nano. So those of you who like your Rams or F-150s sorry pal. You're hurting the economy. But why stop there?

There's a doctor shortage, This affects health care. And that's commerce. Too many smart people are going into law or finance. This is an OBVIOUS resource misallocation. Don't these people know that they owe it to us all to make the right choice? We'll just mandate that certain people become doctors. After all chances are that they're receiving some form of government tuition assistance. And should they disagree well that's no problem, we'll just refuse them student loans and make them pay added penalties on any income earned outside of the medical field. We'll soon have more doctors to treat the expanded patient base.
Now that we've accepted that anything (including inactivity) that impacts commerce can be taxed and mandated why not just go for broke. Business hiring decisions have a much larger immediate economic impact than health care provision health care. Corporations are sitting on trillions in cash and refusing to hire people. This hurts the economy. In fact it's economic treason. So let's just mandate that corporations hire people until the unemployment rate is at 5% or lower. Those companies that refuse will have to pay a penalty tax. The Secretary of Commerce and the Secretary of Treasury will oversee this program.

And so on. You may think I am being ridiculous. Maybe I am. You may think there are political, legal or constitutional barriers. You may even think some of those are good ideas. But I don't think any of them are good ideas. And I think they are slightly more likely than they were a month ago. The government has unparalleled coercive powers. I don't think it's a coincidence that after the PPACA was upheld we see NYT editorials endorsing the idea of using eminent domain to seize homes that are underwater and give them to other investors for resale or using the power to draft to create a national service cadre of lower paid/unpaid young workers that would undercut unionized labor.


Secondly, the law doesn't solve the problem it was meant to solve. It does not bend the cost curve. How could it? Big pharma maintains protection from cheaper generic drugs. Hospitals have greater incentives to merge. There is no legal mechanism to limit or prevent premium increases. All else equal there will be greater demand for roughly the same supply of services. That means, premiums will increase, as mine already have. It makes it more difficult, if not impossible to push for a single payer program in the US and may increase medical costs abroad.

Who are the people who lack health insurance. Well some are the long-term unemployed. Others are illegal immigrants, who will still be uncovered under this plan and will still be seeking assistance in the ER. Others are people with conditions that are simply so expensive to treat that their insurer has kicked them off their plan and/or other insurers have refused to cover them. Others are employed people who either can't afford coverage or who work somewhere where coverage isn't offered. And finally there are people who, affordability aside, have made a rational choice they they don't currently need health care insurance. 
This last group (the smallest) has received much scorn and opprobrium for supposedly driving up insurance premiums. People speak of them with contempt. They tend to be younger and/or in better health so they are much desired as customers by insurers because they will tend to pay premiums but cost very little in coverage. I don't understand why it is okay to speak with disdain of people standing on their own two feet but if someone has an unkind word to say about a welfare recipient, who is taking from the system, then that's a bad thing. At the very least it's safe to say that this law will have some unintended consequences.


Obviously some people are not fans of the 9th amendment, the 10th amendment or of a Federal Government with limited enumerated powers. That's fine. Evidently portions of the Constitution don't mean what I thought they meant. Cool. Hey I'm no constitutional scholar. I'm just an IT guy.


But, if we did decide that we really really really wanted a Federal Government with limited and enumerated powers and that the 9th and 10th amendments were actually meaningful amendments rather than the redheaded ugly stepchildren of the Bill of Rights, what changes would we need to make to the Constitution since evidently some parts just aren't clear??? This is not a rhetorical question. My concept is that government should stick to its limited roles but otherwise leave me alone.

Now that the issue has been settled, at least in the courts:

What are your thoughts?

Do you at least understand the opposing side (whatever side that is)?

Do you think this will be an issue in the November election?

Do you want a limited federal government or a large unlimited federal government?

Limbaugh: He Said it First!!

We all know that recently right-wing radio show host Rush Limbaugh said some viciously ugly slurs about Georgetown law student Sandra Fluke. Fluke spoke before a Congressional panel to advocate for a government forced change in the insurance benefits covered by Georgetown University and Law School.

I disagree with Fluke's policy POV but that's not important here. What is important is that Fluke rejected Rush's apology (in part because she thought it insincere but MUCH more because Rush didn't back off his opposition to her policy prescriptions).

Bill Maher jumped in this mess to say that the apology rejection made liberals look bad and that he didn't like the tactic of going after advertisers to shut people up. I guess he would say that, having had experience of losing his "Politically Incorrect" show due to advertiser abandonment after he made comments about 9-11 that were, well, "politically incorrect". Brent Bozell, who you may have just heard saying the President of the United States looked like a "skinny ghetto crackhead", decided to launch a "I stand with Rush" website, and piously chastised liberals for trying to shut down free speech.

Well.
Hypocrisy all around folks. I don't like hypocrisy. I think it is part of being human. We all have it. But I think we should try to minimize it, not embrace it.
If you're going to get upset when Limbaugh maligns Fluke with ugly hateful language that is meant to insult and demean then you also have to get upset when Maher does the same thing to Palin or Bachmann. It doesn't mean you have to LIKE these people.  You may disagree with their ideas. You may think they are wrong on everything, not very smart and immoral to boot. That is a different thing entirely from calling someone a "dumb t***" or a "dumb c***". You may think that Carrie Prejean is wrong to hold that marriage should only be between a man and a woman. That doesn't mean that it's okay for Perez Hilton to call her a "dumb b****" or that Keith Olbermann and Michael Musto get to question her femininity or make fun of her breasts.

If standards and logic mean anything then they must apply to everyone. That means that Rihanna can't get offended when a Dutch magazine uses racial stereotypes against her and then turn around and use racial stereotypes against another woman. That means black people can't get upset when the clueless Republican racist of the day makes a racialized joke about Obama or Black people and then be quiet when a liberal Obama supporter does the same thing.

If something is wrong then it's wrong. It doesn't matter that someone is more popular so his words are heard by more people or someone else is sponsor free so feels entitled to say things that are raw. Those may be reasons why they are able to avoid certain consequences or their audience expects to hear such things. But it doesn't make it any less wrong.

To be clear I believe that the overwhelming majority of this ugly language does come from the Right. That's a provable fact. I do not think, to put it charitably that Limbaugh is a good person. I think that Bachmann and Palin are often misguided and regularly vile. But that doesn't mean that people should turn a blind eye to ugly language when it comes from their team. Or does it?

h/t Rippa
QUESTIONS
1) Is this a false equivalence between Limbaugh and Maher? 
2) Is it ever okay to call a woman a c*** or t***?
3) Where is the line between comedian and political figure?
4) Can you disagree without insulting people?
5) Do some people just invite or deserve insult?

To Thine Own Self Be True

To Thine Own Self Be True

What do those words, spoken by the character Polonius*, from Shakespeare's Hamlet mean to you? They are often interpreted as advising us to live in harmony with our conscience. Although there are some people with warped consciences or who don't have consciences, most of us would probably agree that if someone is trying to live consistently in accordance with his or her internal values they are likely attempting to live a "good" life. 


Or would we agree with this at all? After all there are other ethical, moral and legal considerations that life requires besides living in harmony with our conscience. Sometimes these considerations conflict. Two recent stories piqued my interest on this. 

LEDYARD, N.Y. — Rose Marie Belforti is a 57-year-old cheese maker, the elected town clerk in this sprawling Finger Lakes farming community and a self-described Bible-believing Christian. She believes that God has condemned homosexuality as a sin, so she does not want to sign same-sex marriage licenses; instead, she has arranged for a deputy to issue all marriage licenses by appointment.
But when a lesbian couple who own a farm near here showed up at the town hall last month, the women said they were unwilling to wait.
Now Ms. Belforti is at the heart of an emerging test case, as national advocacy groups look to Ledyard for an answer to how the state balances a religious freedom claim by a local official against a civil rights claim by a same-sex couple.
Ms. Belforti, represented by a Christian legal advocacy group based in Arizona, the Alliance Defense Fund, is arguing that state law requires New York to accommodate her religious beliefs.
“New York law protects my right to hold both my job and my beliefs,” she said in an interview last week, pausing briefly to collect $50 from a resident planning to take 20 loads of refuse to the town dump. “I’m not supposed to have to leave my beliefs at the door at my government job.”
But the couple, Deirdre DiBiaggio and Katie Carmichael of Miami, are arguing that the law requires all clerks in New York to provide marriage licenses to same-sex couples. The couple are being represented by a liberal advocacy organization, People for the American Way, based in Washington. “Gay people have fought so long and hard to get these civil rights,” said Ms. Carmichael, 53, a filmmaker. “To have her basically telling us to get in the back of the line is just not acceptable.”

Story Link

The Lesbian Couple

The Town Clerk

The second story is that because of the new HHS requirement that requires organizations to cover contraceptive services for women employees, some Catholic organizations have been pushing back against this requirement, claiming that the current religious exemption is too narrow. Some charities have said they could wind up reducing headcount or going out of business.

Catholic universities, hospitals, and social-service organizations are fighting new federal health-care rules that would require them to cover contraceptive services for employees, The Wall Street Journal reports.
Catholic leaders say a provision exempting organizations that employ and serve people within their faith is too narrow because larger institutions such as schools and hospitals routinely hire non-Catholics.
Churches have been urging parishioners to contact the Department of Health and Human Services and call for a broader exemption.
Faith groups said the rule would force them to choose between violating their religious beliefs and dropping insurance coverage for workers.
“If you’re required to pay for services that are contrary to our teaching, the only option is to not provide benefits,” said Susan Rauscher, who heads Catholic Charities in Pittsburgh.

Story Link (registration required)

I have my own ideas on both situations but I don't feel like writing a polemic this morning.  I just want to know what you think of each issue. Are you bothered by either or both of them?

QUESTIONS

Are the people or institutions correct to follow their conscience above government demands?

Does the government have the right to require someone to violate deeply held moral or religious beliefs? Where do you draw the line?

Do you respect people who let you know upfront where they stand, even if you disagree with them?

If you don't agree with a law does that give you the right to ignore it?

* Polonius is usually depicted as something of a boorish old fool and gets killed by Hamlet , albeit mistakenly. So it goes.