The Constitution as Holy Writ

It’s a good thing Republicans are opposed to judicial activism, otherwise they might try to use the courts to reverse their recent legislative loss in Congress.

Oh.  Wait.

The Atlantic’s Marc Ambinder has a post up about a Republican scheme to scuttle health care reform by casting about for some party stooge of a judge to issue a stay or even rule it or key provisions of the bill unconstitutional.  Ambinder sums up the legal arguments and concludes none of them has much of a chance of succeeding, although to me that sounds like saying that pulling the fire alarm on exam day won’t result in you getting an A for the course.

What these partisan hack state Attorneys General are up to is political vandalism.   Their aim is to postpone the inevitable by making a distracting mess while their political bosses try to figure out some other way out of their predicament.

To be fair, not all of these AG’s are mere vandals breaking windows on the orders of their bosses.  Some of them are sincere and principled opportunists who expect their assault on health care reform to win them votes in their campaigns for re-election and higher office.

But after going over some of the arguments and the legal precedents that will likely get them shot down---one of them, to succeed, if it gets to the Supreme Court, will require Justice Scalia to set aside one of his own arguments, which, if you remember 2000 is something Scalia won’t lose sleep over if he has the temerity to pretend he didn’t mean what he wrote.  We’ll have to count on his vanity to keep him from over-ruling himself---Ambinder writes:

There is a final argument that conservatives will use in public and probably in court as well. It is that something like this -- this behemoth of a health care bill -- would never have been envisioned by the framers.

Ambinder doesn’t see this one getting anywhere either.

Good, because, boy, do I hate this “What the Framers/Founders thought/said/intended/envisioned” line of pietistic bullshit.  One thing the Framers surely did not envision was a nation of 300 million people scattered across a continent 3000 miles wide and living in a post-industrial global economy trying to govern itself according to the supposed dictates of a legal document written by a committee of politicians after a lot of wheeling and dealing and compromises 230 years ago for a nation of 3 million people living in a largely agrarian society mostly confined to the eastern shoreline.

Not only did they not envision their Constitution as still existing as the supreme law of the land a couple of centuries and change later, they didn’t envision it lasting a couple of generations.  They didn’t think it should last that long.  They didn’t think it would be right.  They didn’t think that people should be governed by the dictates of their dead great-grandfathers.

“The earth belongs to the living,” Jefferson wrote.

Jefferson thought the Constitution should be re-written every 19 years or so.  He believed that having a present generation try to live under a system built for a past and dead one was like expecting a young man to wear the winter coat that fit him when he was a boy.  Nations grow and change.  Their laws and customs and mores and responsibilities have to grow and change with them.

There are plenty of other things the Framers didn’t envision, women voting being one of them.  They did envision the abolition of slavery but they didn’t put that vision in the Constitution and it was a long while before you could find a conservative who didn’t think that meant they intended slavery to continue as long as the Republic continued.  Took a war to change people’s minds about the Framers’ intent on that one.

I don’t know what the Framers envisioned about the future of health care when they cobbled together the Constitution.  Considering the invention of the vaccine was still seven years down the road, most of them probably couldn’t envision the eradication of smallpox.  The vaccine was still seven years in the future.  None of them---Franklin possibly excepted---envisioned X-rays, CAT scans, heart and kidney transplants, chemotherapy, blood pressure medication, anti-depressants, or any form of successful brain surgery more advanced than trepanning.  They did not envision the cost of extremely expensive procedures we take for granted to identify, treat, and cure diseases the Framers took it for granted people who had them would just die from.

I guess, then, you could make the argument that what the Framers’ envisioned for national health care was the same as what the Republicans advocate for people who can’t afford health insurance, shrugging fatalistically as death and illness take their natural course, except that the Framers’ would have been being simply realistic and merciful while the Republicans are just being mean, cheap, and heartless.

Mean, cheap, and heartless was probably not what the Framers intended when they opened the Constitution with a statement that one of the purposes of establishing the Constitution was to promote the general Welfare.

But whatever else they intended or envisioned, they certainly did not intend for the Constitution to treated as a religious document and for themselves to be revered and deferred to as if they were doctors and divines of a political religion. 

And they did not intend that conservatives of future generations should set themselves up as high priests of that religion.

One thing the Framers pretty much all agreed on.  They did not like priests and they wanted them to have no part in governing the new nation.  They were an anti-clerical lot, the Framers, even the clerics among them.

A class of priests is as antithetical to democracy as an aristocracy.  Funny, how conservatives love both.  Priests assume unto themselves their authority by claiming a special insight into God’s thinking which they derive by consulting sacred texts that, surprise, only they have the secret knowledge necessary to interpret and understand, and what they say God wants trumps anything those of us without that special insight and secret knowledge may want for ourselves.

And this is what conservatives who claim to speak for the Framers and to interpret their “intent” for the rest of us are doing, setting themselves up as priests by treating the Constitution as Holy Writ and the spur of the moment, ad hoc political and partisan writings of the Framers as sacred texts that only they know how to read correctly.

They are the Holy Rollers of the High Church of the Constitution, no different from bible thumping preachers who awe their flocks (as in sheep to be fleeced) by waving aloft their holy books.  They wave around their copies of the Federalist, spout whatever nonsense that pops into their heads as serving their purpose at the moment, claim divine authority for the nonsense, and  like the preachers who hope that nobody actually looks into their bibles to find out what Jesus really said, count on no one bothering to actually read the damn thing and interrupting the sermon to stand up and shout from their pew, “Hey, that’s not what Madison said at all!  I think you’re full of shit.”

Comments

[Ken Muldrew]

A constitutional conference! Give them four years to accomplish a complete rewrite and televise the whole thing, but not through a boring, C-span-like, neutral observer. Get Mark Burnett to produce, with cameras everywhere, and all the footage edited down to make a compelling narrative. Backroom deals, arm-twisting, nights of the long knives...get it all in there. That would be television worth watching!

[Kevin Wolf]

God (so to speak), I wish I'd written this.

[Mark]

The Constitution didn't envision an Air Force, or any kind of aircraft. Why does the government insist on using money rightfully belonging to the Navy or Army for these things instead?

One Congressional obstructionist from Georgia said it was unconstitutional to force people to buy insurance. I guess he forgot that the state of Georgia requires every resident to buy insurance for any vehicle they operate on state roads.

[CathiefromCanada]

The most unpopular part of the health insurance reform bill is going to be the so-called individual mandate, the requirement for everyone to have insurance. But when it comes to the insurance companies, this is the one thing about the bill that they actually like.
So if some attorney general somewhere succeeds in getting a judge to overturn the individual mandate, the insurance companies would be screaming to get this back.
And this, of course, is the one part of the bill that the Democrats don't really care that much about anyway -- if people only needed to buy insurance after they got sick, and if an insurance company couldn't turn anyone down for preexisting condition or cap payments, then the insurance companies would rapidly go bankrupt and in the end the government would have to extend Medicare to everyone, which is what the Democrats really want.

[chachabowl]

I like to think that Franklin would have wanted us to have jet packs as well as free libraries. Trepanning, not so much.

[Beel]

The long tradition of impeding progress includes the moment when some Virginia counties actually closed their public school systems to avoid integration. This actually happened. You can look it up. Here in North Carolina we had something called the "Piersall Plan." It was a conscious go extremely slow plan which avoided almost all integration for probably 15 years after Brown V Board. Mr. Piersall was a state legislator. And of course there are the more obvious references--George Wallace standing in the school house door.