So, here's a
layman's analysis of a constitutional lawyer:
Although I agree
that the country is currently divided over this idea of what the
Constitution is, with some putting rights first and others putting
government powers first, the arguments as laid out so far are poorly
arranged. I'm not that far in, so maybe it gets better. Making it
more difficult is that I'm seeing shades of arguments from the days
when “Obamacare” was being argued in the Supreme Court. I can now
see where my family members got their ideas. That's one of the worst
things about a book like this. It's cherry picking history to begin
with, then it lends itself to further cherry picking by people who
read it, or read reviews of it or hear a headline on talk radio about
it.
A sign of a good
argument is that even someone who is not well versed in the details
can grasp it and repeat it and have enough understanding to drill
down into those details. It the argument flows logically, it is easy
to remember. If the premises and facts relate to real things in the
real world, you can track them down and easily find the points and
counterpoints, the subtleties.
The author, Barnett,
sets up a straw man argument early. After telling us a story about
how he argued with people through his blog, which okay, he's a fancy
lawyer, so it's a widely read blog, he starts in on defining this
dichotomy of a Democratic Constitution vs a Republican Constitution.
He repeats a few times that labels are limiting and he understands
that not everyone can neatly fit into one or the other category, but
then he goes back to those two categories as if they are truly
separate. He
says, "Under
a Democratic Constitution, the only individual rights that are
legally enforceable are a product of majoritarian will..." and
"So, ... first comes government and come rights." I don't
know anyone who thinks that way, and I
didn't catch
any specific
examples,
but
he says it is “pervasive”.
He
fails to point out during
this part of the analysis
that the
Constitution includes the Supreme Court and a Bill of Rights. A right
can't be changed by a simple majority. Barnett
doesn't mention that.
A law can be considered unconstitutional by 9 un-elected officials.
Barnett
keeps harping on the SCOTUS decision to support Obamacare.
Anyone
who has this view he describes as
the Democratic Constitution is
clearly wrong. He seems
to be settingup
for an attempt
to create some view of
the Constitution where
the SCOTUS does what libertarians want, but not what liberals want.
He
smuggles in his anti-Democratic bias in paragraphs like this:
“The
chickens of the conservative commitment to judicial restraint had
thus come home to roost. Ironically, conservatives had inherited
their commitment to judicial restraint from the progressive
supporters of the New Deal, who had opposed the Supreme Court holding
Congress to its enumerated power. Just as judicial restraint was
invoked by progressive justices to expand the scope of the federal
government by Roosevelt appointees, now a conservative chief justice
invoked judicial restraint to uphold a federal takeover of the health
care system.”
If
you didn't notice the weaknesses in the case he had just made in the
preceding pages for this “takeover”, you'd think he just made the
case that the Supreme Court was not doing its job of “holding
Congress to its enumerated power.” He hasn't made the case for what
those powers are either, so this is premature anyway. But, that
explanation is coming soon, so let's give him some benefit of the
doubt.
I've
skipped the parts where he provides his definition of “Democratic
Constitution”. I'll just point out that there is a case to be made
that important founding fathers, Madison in particular, made good
arguments for restricting the will of the majority. A simply
democracy, where a 51% majority can make any law has many pitfalls.
Barnett lays this out well. He also uses Edmund Randolph the first
attorney general, if you'd like to look up more on that.
Then
he turns to his side, and says this will be what the book makes a
case for, a “Republican Constitution.”
An
important factor for the Republican Constitution is “popular
sovereignty”. Barnett introduces this as something ultimately
resting with God, according to our founders, and stemming from the
divine right of monarchs. But we rejected monarchs, the people were
to become the sovereigns. Sounds nice, but poses a few problems. When
he starts to talk about the Republican Constitution he starts saying
things like the small subset of people in government are servants of
the people. Flowery language that every politician on either side of
the aisle uses, but we didn't hear that when he was describing the
Democratic Constitution.
I
should mention, a little later, he says we have a different view of
“God” now, but he doesn't do a very good job of describing how
that should affect our view of these principles.
He
goes to say the Republican Constitution is there to limit the powers
of the government. A feature of any Constitution, but he claims it
only for his side. He returns to “sovereignty” and claims a list
of powers that come with it that we don't actually have, like
jurisdiction over your private property, and our right to use force
just like a monarch. This is starting to get a little scary. He ends
with a statement about the judicial branches job to restrict Congress
from restricting this “just powers”.
So,
after a bit of priming you with these ideas that we aren't a
democracy and some one-sided quote mining of the founding fathers,
not mention some plain old name calling, he goes back to the
Revolutionary war to start his case. The Declaration of Independence
is what we celebrate as the birth of the nation, and it pretty
clearly lays out a “first come rights then comes government”
framework. It was written during war and was an act of treason
against England. It also justified that revolution on the basis of
criminal behavior by that government. This justification gets back to
the “popular sovereignty” and how that rests upon the “Laws of
Nature”.
To
help clarify this, he turns to a sermon by Reverend Elizur Goodrich
at the Congregational Church of Durham, Connecticut.
http://www.patheos.com/blogs/geneveith/2015/07/the-declaration-of-independence-and-natural-law/
Having ministers give such speeches was more common then, but that
doesn't mitigate the fact that the speech is not of much use to us
today. We know a lot more about what constitutes “moral” and do
not need a minister telling us it is the Protestant version of God.
Barnett spends several pages talking about the idea of “fixed”
laws, but provides nothing to support the idea that our founders had
correctly discerned that their sense of morals was fixed or what it
was fixed by. Language was used to allow slavery to continue for
example. Eventually that same language was used against the South,
but that was a long time later.
That's
part 1. I'll read on and maybe have to amend what I'm saying hear.
We'll see.
**********************************************************************
Part 2. The majority caused slavery.
Barnett spends quite
a bit of time in the middle showing how the “Republican”
Constitution helped to end slavery. He makes no mention of abolition
beginning in England or any or the European contributions to the
philosophy of freedom or the science of showing Africans are just as
human as the rest of us. He speaks solely to the maneuvering by
American politicians. He can't avoid, but does not point out the
significance of the 13th and 14th amendments
being ratified by a United States that had no Southern members of
Congress, because they had seceded. His theme is that the Republican
viewpoint led to freedom of the slaves.
Barnett completely
loses all of my respect when he finishes that bit of rewriting of
history, then paints the progress movement that followed with a broad
brush. He titles this section “The Progressive Attack on the
Republican Constitution.” He says the “Democrats in the South got
busy reestablishing their old order of racial subordination”, as if
it was their values of majority rule that prompted that. Then lists a
litany of changes made, such as “direct election of senators”,
“struck at the excessive power of corporate wealth by regulating
railroads”, “restricting lobbying, limiting monopoly”, “child
labor laws, minimum wage” and several more. No mention that this
was the time of “robber barrons”, when people with power in the
railroads were literally committing murder and getting away with it.
And no mention of what is wrong with not letting people make children
work 12 hour days in factories.
He continues, “While
progressivism is today remembered for its advocacy of economic
legislation, it also favored the use of legal coercion to achieve
other types of social improvements. Most modern “moral” laws
aimed at sex, intoxicants, and gambling trace, not to the founding,
but to the Progressive Era. These “vice” laws—going so far as
to ban masturbation—were often advocated as “public health”
measures and justified by what today would be considered
pseudoscience. Likewise, policies of eugenics were also supposedly
based on settled science. Of course, central to the northern
progressive cause was the promotion of labor unions, which in those
days were almost exclusively composed of whites and males. Blacks
were left to form their own. And as we shall see, progressives
supported laws that benefited white male workers by “protecting”
women in the labor force on the basis of their inherent weakness.”
I include this last
bit of hogwash because it shows that law making by Democrats or
Republicans or conservatives or progressives, or whatever label you
want to use, has nothing to do with the label. Moral laws promoted by
pseudoscience are the stuff of conservatives today. Conservatives who
would say they are upholding “natural laws”. That Barnett has
found founding fathers and Supreme Court Justices who have claimed
their agenda du jour is supported by some principle that is rooted in
some universal sense of “right” is shown here to mean nothing. It
was nothing more than rhetoric then and it is nothing more than
rhetoric from him now. The way he sneaks in the racist and misogynist
accusations is beneath a scholar.
His off hand use of
the term “settled science” uncovers a bias that puts him in the
category of internet crank. There is no such thing as “settled
science”. A principle of science is that after you gather data,
make a conclusion, and refine a theory, you immediately question
everything you just did and start on the next experiment. Science is
never settled. Lay people might think it is, or the politicians they
elect might think or say it is, but if a scientist says it is, they
aren't a very good scientist. In science, the best you can achieve is
“well established theory”.
I'm just a little
beyond the half way point, but I don't see a recovery from this as
remote possibility. I can't imagine he will elaborate on that charge
of “legal coercion”, since he didn't label it that when he talked
about the politicking done by Lincoln to free the slaves. I suspect
he will continue to use hot button issues like those darn unions and
blame them on those darn Democrats.
Part 3 *****************************************
I've pretty much given up on this. He is repeating "progressive agenda" like a mantra. He still has not defined right and wrong. He applies his analysis one way when talking about conservatives and another way when talking about liberals. He defended a couple in California because they were growing marijuana for personal medicinal use, according to State law, but it was illegal by Federal law. I'm sure he's sincere about that. But only ever barely mentions the actual "natural laws" that progressives defend, using political maneuvering and legal trickery just like conservatives do. He barely mentions sweatshops or worker safety and the specific wrongs that they are, but spends a great deal of time on the legal details of how in general the New Deal laws came to be.
Here he goes after Obama for taking executive action.
"Very recently he issued sweeping executive orders to do even more to implement immigration policies he formerly had conceded required congressional action. President Obama negotiated an important and highly controversial agreement with a foreign power that he refused to submit to the Senate for its advice and consent, but is implementing unilaterally.
These actions by the president constitute an end run around our Republican Constitution’s separation of legislative and executive power. Although it may be fictitious to claim that Congress represents the “will of the people,” the fact that Congress is elected does provide a potentially important check on the abuse of government power by the president. The electorate cannot remove a president from office until his or her term expires."
No argument, he did an end run. Barnett doesn't mention the years of debate that preceded that end run. And he completely avoids the discussion he began the book with about natural laws. What natural law prohibits people from walking from an area on a map we call "Mexico" to one we call "Texas" to go to work? I can go to Mexico and work or play if I want, with relative impunity. What class of person am I, according to nature, that I can do that and others can't? Barnett just drills you with these examples, pointing out the Constitutional rule a progressive broke, while ignoring they were defending human rights. Worse, he ignores his own earlier analysis of how defenders of the Republican Constitution did the same.
He even ignores how we vote in the above quote. He says "the electorate cannot remove a president". In the next sentence, not shown, he says we can remove members congress during a President's term. I don't see much point in even engaging someone this irrational.