Thursday, April 21, 2011

The Constitution is WHAT?

Sometimes saying what is real seems like cynicism but I just can't help it.

The Constitution of the United States sometimes gets talked about like this:

We can not hold the constitution in our hands and stand by it to fit our own agenda and then throw it on the ground and step on it when it does not fit our agenda and thoughts. Freedom is a two edge sword that cuts both ways. It provides the freedom we all enjoy and also protects people that do things that is revolting to us. That is why it is freedom!

This is not true, of course.

The Constitution has long been molded to fit our own agendas and, in fact, that's what is supposed to happen.

Take the current fad of Constitutional interpretation called "original intent of the founders."  This is a relatively new and radical approach to the document, one that would have many of the people who wrote and ratified it scratching their heads about where it came from.  Not all, of course, because there was no single intent of the founders--their work product does not reflect a unity of thought. They barely reached a consensus.

The original intent doctrine was souped up to its current horsepower in the Federalist Society--the Neo Conservative legal organization that reflects the thinking of Robert Bork and Justice Rhenquist (who are succeeded in our time by Justices Thomas and Roberts).

This is a part of the revolutionary movement that has been at work pushing this country to the right since the Reagan era and its work is well described in the book The Wrecking Crew by Thomas Frank.  The agenda of the Neo Conservative movement is to transfer wealth from the middle class to the wealthy and to concentrate it there.

As this movement has taken over the judicial branch of government doctrines that facilitate this enriching of the rich have been elaborated upon and extended.  Among these are the idea of a corporation as having the same rights as human beings and equating political giving and spending with speech and therefore prohibiting limitations.

Good or bad, this taking over of the judiciary--along with the taking over of the other branches of government--is part of the design of the Constitution.  It is meant to be used to lay out the rules for gaining power and for using it.   While the legislative and the executive branches can be taken over more quickly, through the electoral process, the judiciary falls into the hands of the dominant political power more slowly--but still it does.  

The Constitution makes it  more difficult for one particular movement to take power but it does not prohibit that.  The Constitution is not intended to create political gridlock and stalemate, although that results at times.

The most crucial problem, in my own view, with the way the Constitution has been shaped over the last 100 or so years is that the republican form of government has been turning into a democracy.  The founders were serious about wanting to prevent that but, despite the "republican form of government" clause we have given way to things like recall, referendum and initiatives (to name a few of direct democracy's manifestations).  

The attitude that we should vote for people who agree with us is one manifestation of this pernicious underlying democratic principle. In a republic voters realize that situations are more nuanced and balance and compromise are needed sometimes for us to all live together.  Therefore we want to elect people who judgment we trust to consider all the facts and, in the process of legislation to do that balancing and compromising--even if it means they don't respond slavishly to slogans.

This democratic principle has led to a form of mob rule.  Responding to such slogans (that pay no heed to the nuances and the complications of decisions) people are whipped up when needed (mostly at election time, but on other occasions) to do Neo Conservative bidding, egged on by commentators and politicians who are funded by those concentrating the wealth. 

Through manipulation of symbols and slogans, mostly playing on the emotion of fear and emphasizing divisions among us, the current Neo Conservative powers that be are extending the power of  the federal (and state) government when it suits their purposes, on the one hand, and limiting it on the other, when it serves the interests of others.

The federal tax code is an example of how federal power is harnessed and enhanced by Neo Conservatives to  serve the concentration of wealth. Increase middle class taxes--tax shelters and subsidies for the wealthy--as well as lower tax rates.

The stripping away of regulation over such things as mining and oil drilling is an example of how limiting the power of the government serves that same end of concentrating wealth.  The repeal of Depression era laws to regulate financial transactions, of course, turned Wall Street into a casino that made people there rich by bankrupting the system and then had the power to make the middle class recapitalize that system while blaming teachers for the economic catastrophe.

When it makes the wealthy more wealthy the Neo Conservatives will say that using federal power to get 'er done is required by the Constitution.  When restraint of federal power makes the wealthy more wealthy then the Neo Conservatives will argue that the Constitution requires restraint.

This is not new and the Liberals did the same thing, as the Jacksonian Democrats did, as the slave holding (and segregationist) state's rights types did, as the Reconstruction era Republicans did .  Evangelical Christians play this same game with the Constitution--trying to use it to promote their religion and even to force it on others.  It's how it's set up to work although, for those who do not understand that, or don't want others to understand it, rosier sentiments about the Constitution will always be available to cloud the reality.

For them, at least for those who know and don't want others to know, a Lily is in order.  For the rest of us it's not cynicism--it's just how things are and how they are supposed to be. 

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