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A Blind Spot in My Knowledge of Constitutional Theory
September Group writing: A blind spot in my education (The Left and the Constitution)
Much to the disappoint of my parents, I got a Political Science degree rather than doing something useful with my life. But as a consolation, I can quickly understand other people’s political opinions and the philosophical origins of their beliefs. Yet I just can’t understand the philosophy underlying lefties and the Constitution.
Biden’s latest speech reiterates what I find confusing about their stance. Apparently, the constitution has an implied right to privacy and that implied right includes abortion. This is odd because no one found this right in the Constitution until recently.
The Constitution was made to limit state power and protect the rights of the people and the states. It was made assuming that human beings had a consistent nature and that nature needed to be constrained because it wasn’t innately good.
Woodrow Wilson seems to be the only lefty I know of that is intellectually consistent on this matter. He was a Progressive obsessed with evolution. This meant he thought that humanity lacked a definitive human nature so we could evolve and move beyond the limitations of our current society. That and scientific racism. Lots of racism.
As Woodrow Wilson put it,
The trouble with the theory [of limited and divided government] is that government is not a machine, but a living thing. This is where the living and breathing constitution comes from. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life.
So which is it to Joe Biden and to other Progressives? Does an implied right to privacy guarantee abortion? Or is the Constitution eternal and a sacred protector of our rights; Including the most important right, which is a right to an abortion at any time for any reason?
In other words, the Constitution’s original purpose shouldn’t be taken all that seriously. Compare Wilson’s quote with the ever-popular quotation from James Madison’s Federalist Papers.
If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
So why does President Biden praise the constitution as if it gives certain definite rights and we should all obey it? If the constitution can be interpreted to mean whatever we think is good at the time, then it’s not really a sacred procedural document. It’s another institution that needs to be constantly updated a la Wilson’s paradigm. If the Constitution is worthy of deep honor and reverence, then you have to go through the difficult process of adding Constitutional Amendments for things you like. You can’t have one philosophy for abortion rights and another philosophy for guns.
So what is the leftist philosophy behind the Constitution? All I can see are two entirely contradictory points of view that leftists switch between based on whim.
P.S. All of Ramirez’s stuff is easily available online and it’s under his name. That’s free domain right?
Published in General
When progressives say that the Constitution should be updated for the times, I have to scratch my head: who are they to think that they have the “right” interpretation? How would any group of Lefties know what is best for the country at that particular moment in history? Aren’t they worried that the wrong group of Lefties could horn in to their work and mess up the whole thing? But then the Left doesn’t analyze these kinds of questions; superficial analysis and answers suit them just fine. Good post, Henry!
Wilson’s primitive, animist belief shines through in that quote. It’s not the only place it shows up. That “living thing” argument is routinely trotted out in his argument for unitary executive, unitary government, and a unitary populace. He keeps coming back to calling whatever he would enslave a single thing, monolithic, indivisible. The government cannot be divided against itself any more than an arm can prosper against the purpose of a body.
Leftism, even when writ large, writ fancy, writ legal, writ any way you want, is still just a peasant’s poor understanding of society. Essentialism, animism, and an overarching belief that there is always a parental power lurking somewhere to keep them safe, to exercise their rights on their behalf, and to provide cosmic justice.
I think that the first sentence here is incorrect, Henry.
First, the Constitution was actually made to substantially increase federal power. The impetus was a widespread opinion that the national government under the Articles of Confederation was too weak.
Second, the Constitution was not made to limit “state” power in general, if you mean the individual 13 states that existed at the time. There were some limitations on state power, though not many — things like the prohibitions in Art. I, Sec. 10 on entering treaties, coining money, making legal tender (except gold and silver coin), passing a bill of attainder or ex post facto law, and some other. Of course, laws made under the powers granted to the federal government could supersede contrary state laws.
Third, the Constitution was not created solely to “protect the rights of the people and the states.” This is right in the preamble. The purposes include forming a more perfect Union, establishing justice, promoting domestic tranquility, providing for the common defense, and promoting the general welfare. “Securing the blessings of liberty” is also listed — one of six purposes.
I do agree with your second sentence, about human nature and the need for constraint. This principle, though, points toward both greater and lesser government power. Government is necessary because citizens are flawed, and their actions need to be regulated and controlled. Government can be a danger because the agents of government are also flawed, and can misuse their power.
I want to take a shot at answering your main question, Henry. I’ll tweak the question a little bit, and ask, “What is the philosophy behind the Leftist interpretation of the Constitution?”
I think that a Leftist would say that the Constitution established certain basic principles about liberty and equality, but the drafters of the Constitution didn’t fully understand the application of those principles. They were influenced by the times in which they lived, which were transition periods into the understanding of the ideals of liberty and equality. The two most relevant times were the 1780s during the framing of the Constitution, and the late 1860s during the passage of the post-Civil War amendments.
So, the founders recognized the importance of equality and liberty, and even privacy — the idea of privacy is implicated in the Fourth Amendment limitations on searches and seizures — but did not apply these principles accurately. Most of them did not have an enlightened view about the equality of women, for example. They did recognize that our ideals would evolve, and even expressly recognized this in the key texts. For example, the Constitution set the goal of establishing a “more perfect Union,” indicating that there was still work to be done. They drafted the Declaration, Constitution, and some amendments with broad and sweeping language — “all men are created equal,” they have “inalienable rights,” they are entitled to “equal protection of the law” and “due process.”
Does the Equal Protection clause apply to sex discrimination? From an originalist standpoint, I think that the answer is no. It applied to race discrimination.
I might be able to illustrate this point with my interpretation of two SCOTUS decisions sometimes described as “infamous” — Dred Scott and Plessy v. Ferguson. Dred Scott was the pre-Civil War decision ruling that a black person could not be a “citizen” of the United States. Plessy was a late-19th Century decision holding that “separate but equal” satisfied the Equal Protection Clause.
If you actually read the decisions, you will find that they are solidly originalist. You might agree or disagree with their historical analysis. I’ve read both the majority and dissenting opinions carefully, and in both cases, I think that the “infamous” majority opinions have the better argument.
This does not mean that I like the conclusion of these cases. It means that, in my judgment, the majority opinions accurately stated the original intent of the relevant Constitutional provisions. I found that the strongest evidence presented in the majority opinions was the actions of the Constitutional framers. For example, most states did not treat free blacks as citizens in the 1780s, and (if I recall correctly) the very Congress that passed the Equal Protection Clause also established racially segregated schools in DC.
One way of approaching such historical facts is to conclude that those who passed the relevant Constitutional provisions were hypocrites. Another approach, though, is to conclude that in the language that they used — such as the word “citizen” or the term “equal protection — they did not mean the same thing as the modern critics of the policies at issue.
On issues about which one has strong feelings, it is very difficult to evaluate a legal argument in a detached way. For quite a long time, I think, the vast majority of people in our country have thought that black people can and should be citizens, even must be citizens. As a policy matter, I agree with this position. But it’s not necessarily what people believed in the 1780s.
There is a perception, and a pretty good argument in my view, that the Dred Scott decision was a significant factor in bringing about the Civil War. The holding of Dred Scott regarding black citizenship was overturned by the post-war 13th Amendment.
Plessy, in contrast, was overturned by the Warren Court’s decision in Brown v. Board of Education. The argument in Brown is quite weak, generally, coming across to me more as pop sociology than as legal analysis. I’m inclined to like the outcome (though with the depressing persistence of the Social Justice/CRT/BLM narrative, I’m becoming less optimistic about the viability of the ideal of a colorblind society).
There are other areas of Constitutional law in which modern jurisprudence, popular on the political Right, seems to depart from original intent. One obvious area is First Amendment freedom of the press. I think that there’s a pretty good argument that the original intent of this provision only prohibited prior restraint, and would have allowed prosecution or civil lawsuits for things like pornography, blasphemy, or defamation.
I hope that this helps.
Whereas what actually happened was that the document is the product of a whole lot of wrangling — these are the compromises which were accepted in order to produce and ratify the document. Nobody thought that any living human was actually three-fifths of anything.
Nor did they say anything of the sort.
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@Arizona Patriot
You make very good points. Also, I am now very happy that I included my tangential jab at how racist Woodrow Wilson was.
To address your first post that the Constitution was made to expand the power of the Federal Government because the Articles of Confederation was considered to be too ineffectual, I believe that you are correct. That is what my Humanities teacher in jr. high taught after all.
But the Constitution does seem to be made with the Madisonian idea that Government is necessary but that the government is always tempted to take too much power.
To your rather long second post, May I first ask how you went beyond the word limit? Also, I am still confused about how to decide Constitutional law without precedent. I will reread your commentary later.
I think leftism generally believes in an idealized end state of history. That whatever changes we make now they’re bending towards more equality and justice in the long run. So I think they’re a little more cavalier in making uncertain changes now because they have faith that in the long run it’ll all work out. Which is a long way around to me saying that I don’t think they have a rigorous constitutional theory. They will with a straight face tell you that the constitution demands abortion but forbids guns because they think abortions are a good thing and private gun ownership is a bad thing. The constitution must demand abortions because that’s the direction history is going, and whatever the actual words say about guns it can’t really mean that because that’s the opposite direction of history’s continuous improvement.
Promoting the general welfare and securing the blessing of liberty look like your mission creep statements. They aren’t narrowly defined like the responsibilities of the House of Reps etc.
A few months back, Gary Robbins kindly upgraded my membership to Reagan, which has no limits.
Thanks again, Gary!
In Gary’s defense, he kindly offered to upgrade me as well, which offer I declined.
Wilson, Mussolini, Liz Warren… find the whole checks and balances thing so-five-minutes ago. Now that we have science and enlightened managers the whole idea of impeding their handiwork and thus retarding the march to The Future is simply silly. Each time there is a failure to enact some Enlightened vision, it adds to the perception that the Constitution is just in the way of goodness and light.
Notice how the left has (only some intentionally) adopted the notion that SCOTUS overstepped and “took away” a right to abortion. The fact that SCOTUS said that it had no power to rule on abortion and that its previous ruling in Roe was overstepping does not compute.
I highly suggest that people research Freud. When Freud made up his nonsense all the right thinking people immediately agreed with him. Apparently, all of human history was about wanting to boink your mother. I am not kidding or exaggerating in anyway. Christians said, “That’s all weird nonsense.”, and continued doing Christian stuff.
The Constitution can and should be updated for the times – that’s why it has an Amendment process written into it.
The problem the “progressives” have is that changing the Constitution is hard and requires a consensus that they don’t want to waste time building.
Miffed: “The Constitution can and should be updated for the times – that’s why it has an Amendment process written into it.
The problem the “progressives” have is that changing the Constitution is hard and requires a consensus that they don’t want to waste time building.”
Here, Here Miffed! I believe there is too much truth in what you say and perhaps you should be reported to the DOJ or something for being a “Domestic Terrorist” in what you say. Remember what George Orwell said “speaking the truth in times of universal deceit is a revolutionary act,” and we are definitely living in a time of Universal Deceit.
To amplify what Miffed said:
A. The Constitution has a process to be updated – it’s called the amendment process. Unless there is an amendment to change it, the existing Constitution should be otherwise enforced as is in all cases.
B. The Constitution did not grant the Supreme Court the right to “interpret” its meaning. Chief Justice John Marshall in “Marbury vs Madison” asserted the right of the Supreme Court to “interpret” the meaning of the Constitution to better enforce it’s meaning as it was written. In his decision there is nothing to imply that the original meaning of the Constitution was not the true meaning of the Constitution and there was nothing in that decision that gave the Supreme Court the right to re-interpret the Constitution to anything the Justices at the time damn well thought it should have meant but didn’t actually specify. No ifs, ands or buts.
C. Justices who based their decisions on ideas outside that specified in the Constitution are grossly abusing the power of their office and should be at a minimum impeached and removed from office with the greatest haste. And to my way of thinking in most cases tried for Treason and Shot.