Original Meanings

I have just read "Original Meanings: Politics and Ideas in the Making of the Constitution" for a previous class so my pre-read of this book has already been done. However I think the title is very indicative of some Rakove's goal for this book. It implies that there is more than a single possible interpretation of the Constitution. The second part of the title seems to also express some struggle intellectually that might (we all know there was) have occurred in the process so to speak, in the writing of the Constitution.  Thoughts?

To get this all started I had a question concerning a term found in the reading, which also popped up in readings for Dr. Steffen's seminar on Revolutionary America.  Does anyone have a good understanding of "parvenu?"  Does this term have any significance for class or cullture in colonial Virginia specifically?

Instructions for Posting

Welcome to Constitutional Studies--a blog for HIST 8035 students. This blog will be a source of ongoing communication for the class. It is designed to highlight conversations on our weekly reading, on research questions that we have, and on contemporary constitutional issues that require historical perspective.

There are a simple set of rules that we will use for posting, included below.

Rule 1: you may post on discussion questions for next week's reading, or you may share extra readings or other ideas connected with the next week's topic. OR, you may post links to websites of interest, books or articles, or other resources that others in the class may find helpful. Especially of interest are links to examples of the uses of history in the modern day world.
Rule 2: you should comment early and often on posts. All posts should be invitations to discussion.

Rule 3: debates are permitted. Rules of courtesy and professionalism apply. As administrator, I will remove any and all inappropriate posts.

Rule 4: you MUST add labels to all of your posts, so that we can find them and use them later. You should add a LABEL for any author you are referencing (make sure you do the last name, first name format for this kind of posting, e.g.: Morgan, Edmund), as well as something to identify the topic or period. Try to match tags already in existence, and if one does not exist, then go ahead and create it.

Rule 5: more rules will be added as we go along.

Happy blogging!

Tonight on the Obamacare Soapopera: Lonely Chief Justice Roberts makes peace with history

There are legal commentators far better equipped than I to discuss the Supreme Court's decision, so I will leave it to parse over its many facets. But I could not resist posting about Chief Justice Roberts's odd placement in this decision. This being the first time over a major case that he has ventured from the conservative wing of the Supreme Court, many are assuming that he has at least one eye on his historical legacy. I think this is correct, but perhaps a little more complicated than some are assuming. If Roberts is beginning to think about his legacy, then there are at least three things this decision does that might help define a new kind of conservative jurisprudence for the next half century.

1) The return of judicial restraint. Conservatives love to complain about "activist" judges and "legislating from the bench," but they don't really mean it. Most conservatives are happy to have judges invent economic rights (substantive due process, anyone?) and actively enforce them against legislative proscription. Roberts has, up until now, appeared squarely in this camp, preferring confrontation to restraint in most cases. But Roberts has worked hard here to use statutory interpretation to avoid coming into collision with Congress and the president. This is what judicial restraint really means, and Roberts's endorsement of it might be a harbinger of things to come.

2) Deploying a legal fiction. Roberts's departure in this decision is significant because he essentially says that the taxation clause, rather than the commerce clause, governs the individual mandate. Commentators right and left have complained that this is bad reasoning because it effectively gives Congress the same power it claimed it had before while muddying the waters in the process. Conservatives can point right to the president himself, who repeatedly called this provision a penalty, not a tax. Liberals complain that the test invented by Roberts (the "inaction" is not commerce test) is poorly suited to judge the current reach of federal power. Well, ok. But I rather like his fiction. I have always been uncomfortable with the notion that the federal government can compel you to participate in a particular kind of commerce. There are things that legislatures should not be able to do, and we do have to think about these limits from time to time. As Roberts pointed out, energy and transportation are both subjects of interstate commerce and we don't really want the government ordering us to buy a particular lightbulb or an automobile. Liberals have largely dismissed this argument, pointing out that the mandate was part of a comprehensive set of reforms and was special. In short, that Congress would not (could not) start ordering everybody to eat broccoli (or purchase cars, or whatever else). Liberals also repeatedly analogized the mandate with social security, and with other programs that rely largely on a redistribution of wealth through taxes. Roberts's opinion speaks to this. He deploys a legal fiction (the mandate, described as a penalty and denied as a tax, is actually a tax) in order to reserve the commerce clause. There are limits, he is reminding everyone, and we can be creative in enforcing them.

3) Connecting to the past. John Roberts loves John Marshall. John Roberts would like to be John Marshall. He is looking forward to a long tenure on the Court. He has an opportunity to lead the conservative wing in dominating jurisprudence for the next quarter century. And his legacy, he likely hopes, will live on past his chief justiceship. These were all traits of Marshall's, and so the parallels are striking. And there must be a reason that Roberts went back to McCulloch v. Maryland and Marbury v. Madison and the public writings of John Marshall on so many occasions. There are some ironies, however. Marshall famously used the power of the Court to curtail the police powers of the states and to bolster the federal government. His iconic opinion in McCulloch (1819) supported the power of Congress to incorporate a bank, something it was not granted in the original Constitution and which more than one Framer (including James Madison) believed was outside of Congress's power. (Full disclosure: President Madison signed the second Bank of the United States into law.) But perhaps the irony is intentional. The balance of power between the states and the federal government was different in the 1810s. The federal government was resisted far more frequently, and was much much smaller than it was before the end of World War II brought us a military-industrial complex and a Great Society. Marshall, one might say, fought for the underdog. Is this what Roberts is doing?

These are little more than the musings of someone who is trying to understand Roberts's positioning on the Court. But I must close with tears for poor John Roberts, whose opinion on the commerce clause leaves him in a 1-4-4 position, alone and lonely, naked to his enemies, etc. etc. But it is not his alienation from his compatriots that saddens me. It is, rather, his alienation from John Marshall. For a good portion of Marshall's chief justiceship, he was able to achieve consensus on the Court, to issue unanimous opinions and discourage even concurrences. Roberts clearly cannot. But then again, not even John Marshall could get this Court to put down its politics and behave like a judicial court.

Jeff Bell and the Conservative Society Myth

The Wall Street Journal interviewed Jeff Bell, a conservative thinker of sorts, on the subject of social issues and Rick Santorum's recent surge. The upshot of the article is Bell's notion that conservative social issues will send the GOP to victory in 2012 and help create a permanent Republican majority in politics. This runs against traditional wisdom, which regards such social issues as divisive and ultimately off-putting to swing voters. The title of Bell's forthcoming book, "The Case for Polarized Politics," reveals what he thinks of such an argument.

What I find immediately interesting about Bell's point of view is not so much his analysis of current politics (it seems transparently wrong about the tenor of conservative politics), but his attempt to justify his position as morally true. That is, he regards the socially conservative positions he espouses as objectively right. If the interview is to be believed, he believes that this truth is grounded in History (capital "H" History). As such, it is narrative that creates moral meaning, that in essence give norms their objective reality. (For anyone interested in a theoretical position endorsing this, see Robert M. Cover's article "Foreword: Nomos and Narrative," in the Harvard Law Review, volume 97 (1983-1984).)

So what is Bell's narrative? The roots of social conservatism lie in the Revolution. "Nature's God is the only authority cited in the Declaration of Independence," said Bell, and he then says that natural law is god-given, although conveniently non-denominational. "If you believe that rights are unalienable and that they come from God, the odds are you're a social conservative." This position then allows Bell one more intervention. The Tea Party has made a connection with the Founding one of its central tenets. (Economic and social conservatives unite!) In Bell's reading, "liberals" have (since the French Revolution) attempted to pull down the institutions of family and religion. Obama's presidency proves this. After all, he let gays into the military and took on the Catholic church over contraception.

I won't comment on the weakness of the narrative--it would be unfair given that it is not fleshed out. Suffice it to say that natural law had obvious Christian roots, but the beginnings of liberal theory (Grotius, Hobbes, Pufendorf, Locke, etc.) divorced natural law from the traditional hierarchical society that had once dominated political understandings of politics. Natural law became at first a theoretical and then later a political attack on hierarchy. This meant an attack on slavery, monarchy, and--wait for it--traditional marriage. Of course, "traditional marriage" at the time of the Revolution meant the absolute subjection of women to men--women who literally lost their legal identity to their husbands, surrendered their property, their wages, and their right to defend themselves in court from attack. Conservatives who opposed them complained that to grant women the right to their own property would undermine the "natural" foundation of society. Women thought otherwise. Some men did too, and marriage was reformed (a process taking generations),and  ultimately brought into line with the equality implicit in natural law thinking.

This historical interlude is, I repeat, not meant to comment on Bell's untenable historical narrative, but rather to illustrate the ways in which narrative can construct meaning. In Bell's narrative, he wishes to draw a line through time which connects today's social conservatives to the Founders. The line that connects them is respect for traditional institutions and a belief in God. These are absolute values, in Bell's reading. And the narrative gives them objective value. But the objective truth to which he clings is a chimera. And this, if he is not aware of it, ultimately dooms not so much his analysis of present politics as it does his own pretended morality.

Perhaps in a future post I will comment more about the substance of his narrative. At present it deserves no comment simply because it is so patently absurd. But perhaps after I have paused to read the comments on the WSJ post I will see whether a significant segment of the population actually takes this seriously.

The Historic 2010 Midterms

This is a misleading title. There is nothing historic about incumbent party losses in a midterm cycle. Those of us who have living memory of 1994 know just how profound the changes can be. We'll leave aside for a moment how the undemocratic nature of the Senate has prevented the democratic majority (small "d" here--the ones who voted Republican) from claiming a total victory as well. There's nothing historic about that; it's just ironic.

I'm more interested in the historic narrative. I listened to Rand Paul's victory speech last night, which I think is a pretty typical rendering of how the Tea Party has sought to cast itself in terms of its own historic role:

Why is America great? Why are we the greatest, richest and freest country ever known to man? (Applause.) America -- America -- is exceptional, but it is not inherently so. America is exceptional because we embraced freedom, because we enshrined it in our documents and because we have lived and fought for the principles of freedom. (Cheers, applause.)

America will remain great if we remain proud of America, if we remain proud of the American system, the system that is enshrined in our founding documents, the system that protects and promotes the free exchange of goods, the system that protects capitalism that has made this country great. (Cheers, applause.)

This is historical fundamentalism at its most simple. Read from the back forward, it can be further summarized thus:

1. our Constitution and Declaration of Independence codify liberty and capitalism.

2. These values have made America the richest nation in the world.

3. And this has made (all) Americans an exceptional people.

4. 2010 is about restoring these fundamental values to again make us an exceptional people.

As a narrative, this invokes several complex literary tropes: the tragic flaw; the nation as prodigal son; return to original virtue. It is rather amazing to think that so short a narrative can encompass so many concepts without expressly stating them. This, of course, is the power of narratives, and precisely their purpose. The ability to position one's self in a historical continuum is how we orient ourselves to project a possible future. This, I would argue, is why the Tea Party has made so much of its connection to the founders, which Rand Paul invoked when he directly (mis)quoted Thomas Jefferson in his speech: "that government is best which governs least." But the misquote is not important. Jefferson may never have written the above line, but he vaguely stood for a smaller federal government, and in that sense Rand Paul got his Jefferson right.

The invocation of exceptionalism is worth noting for two reasons. First, exceptionalism as a historical concept is really a nineteenth century invention, associated with the historian George Bancroft. It had racial overtones, suggesting that the favor bestowed upon America was really the Anglo-America. Second, exceptionalism was a matter of Puritan faith. (Anglo) Americans were God's chosen people, and America's history was a chronicle of divinely-inspired events. There was very little choice in it, although those muddling through history had made plenty of choices themselves.

Rand Paul explicitly rejects the second assumption. His exceptionalism is a matter of libertarian will rather than religious faith. We are not predestined for greatness; we must earn it. The immediate prescriptions seem to be deregulation and an end to deficit spending, although Mr. Paul did not have time to draw out a plan to greatness.

As for the racial overtones, the Tea Party is stuck with it, even though they don't like it. Even when we dismiss the nuttier elements (former Tea Party spokesman Mark Williams's satiric historical letter, e.g.), we cannot dismiss the party's demographic makeup. This is a party of disaffected, middle-class white Americans who feel marginalized and voiceless. Hence the "take back America" slogan.

And Rand Paul's victory speech verifies this. The historic(al) nature of the speech was its invocation of a simpler, whites-only history--one that quotes Thomas Jefferson for demanding less government without acknowledging the daily theft of liberty and labor that was necessary to sustain Jefferson and his ilk. Those who truly believe that our nation is founded upon laissez-faire principles are guilty of serious amnesia. The exercise of direct power on the vast majority of people in the eighteenth and nineteenth centuries regularly invaded people's liberty and property. Jefferson was aware of this. He condoned it in many cases, and fought against it in others. He was complicit in its crimes and his conscience bore the burden of this complicity his whole life.

Let me be clear here--I am not accusing Rand Paul (or the Tea Party) of racism. The vast majority do not see themselves in this light. Their invocations of historical narrative have a practical purpose: to connect their visions of a possible future with a real past. But in the margins of their historical invocations lie some unsettling truths, conveniently ignored. If we are to be honest about the problems America faces today then we might want to start by being more honest about our country's past. And that will require some thinking about the losers as well as the winners, both then and now.

Federal Hate Crimes Law and Editorial Missives

As I'm sure everybody knows now, Obama just signed landmark hate crimes legislation making it a federal crime to willfully cause bodily harm to someone because of their actual or perceived sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (enrolled as H.R. 2647, now Public Law No: 111-84) is Division E of the "National Defense Authorization Act for Fiscal Year 2010," meaning that this landmark civil rights legislation was a rider on a military appropriation act.

I was curious to see how (or even if) any respectable opposition to this bill exists. I have found at present only Jillian Bandes at Townhall, who writes:

The Department of Defense Authorization Act (H.R. 2647) is going to a vote on Thursday. It's caused significant strife among Republican Senators who want to vote to fund our troops, but will also be forced to vote for controversial hate crimes legislation if they do so.

Some legislators have said they will withhold their vote; others said they're going to just bite their tongue, but whatever the case, it's a dirty tactic on an issue that deserves a separate, Democratic vote by itself.

I think we can reject the argument on its merits fairly simply. Her definition of "controversial" appears to stem from her misreading of the bill, and to this I would direct people to her April 30 article on the subject. To summarize: this law makes it a federal crime to beat, kidnap, kill, maim, or otherwise inflict bodily harm to someone because they are gay. Where is the controversy in that?

More interesting is an analysis of her rhetoric. Although this two paragraph report is thin, she identifies the use of attaching riders on bills as a "dirty tactic," but perhaps only when engaging an issue that "deserves" a "Democratic vote." I don't want to speculate about her capitalization of Democratic--I suspect this was just careless grammar. But why a "dirty" tactic? The word conjures up an immediate sexual reference, suggesting both the forbidden and the obscene. There seems to be some level of association here between the subject matter--protection of gay men and women--and the author's own feelings on the matter.

I do not deny that this may be making a mountain out of a molehill. But that is precisely what Brand's own reporting does--to point the finger at relatively innocuous legislation that has strong moral content (prevention of violence) and hooks into a well-established constitutional tradition of protecting civil rights (this extends back to 1866) and call it "dirty" is laughable. Unless, of course, one begins with the assumption that federal support of gays' civil rights is morally wrong.

I should point out here that the interesting constitutional issue--well known to constitutional lawyers--is whether the Thirteenth Amendment, which ended slavery, can really provide Congress with the authority to pass hate crimes laws that protect people other than former slaves. Historically, the real question is the ebb and flow of congressional and judicial enforcement of these laws protecting basic human rights. The Supreme Court has swung from one extreme to the other in its history on the subject. Congress has been alternately hot and cool on the subject. And a parallel (although problematic) might be antilynching law, which Congress could never pass in the early twentieth century despite tremendous need because southern senators banded to filibuster and kill such legislation. Now that was a dirty trick.

Saturday Night Supreme Court Smackdown: Scalia v. Breyer!!!!!

Okay, not so much Wrestlemania as civilized discussion. But those interested in pinning down disagreements on constitutional interpretation might be interested in this combative discussion between Supreme Court associate justices Antonin Scalia and Stephen Breyer.

Serious students of Supreme Court methodology and judicial philosophy will likely be disappointed in this discussion. Both justices articulate their philosophies reasonably well, but speak in generalities that make make them both appear startlingly naive at times. Breyer, for instance, identifies affirmative action as a hard topic because of its challenges in terms of understanding precisely what "equal protection" means (i.e., is the Constitution color blind or does it allow legislators to promote equality through affirmative action policies?) but offers little in the way of guidance for how justices might solve this riddle. One is tempted at times to conclude, with Scalia, that his philosophy is just the substitution of modern moral outlook for key phrases in the Constitution. If "equal protection of the laws" in the Fourteenth Amendment merely means whatever we want it to mean--if it has no fixed meaning--then we are really at sea (Scalia's phrase).

But this raises the perennial problem of "fixed" meaning in legal texts. Consider Scalia's jaw-dropping statement that Brown v. Board of Education was an easy case. Originalist principles, Scalia argued, would lead one to conclude that segregated schools violated the "equal protection clause" of the Fourteenth Amendment. But his application of original meaning jurisprudence does not lead to this conclusion. Given that some schools were segregated in northern states at the time of the Fourteenth Amendment's adoption and that courts had consistently upheld race-based laws and reconciled them with "equal protection" requirements, any credible application of originalism would allow in 1954 for the continued segregation of educational facilities. Scalia warded this off by suggesting that the text was clear--equal protection of the laws means that you have to treat everyone equally. But formal legal equality was part of the segregationist regime in the United States, and formalist legal principles masked the inequality that is so apparent to us today.

I should note quickly that I am not commenting here upon those journalists who misquoted Scalia as suggesting that segregation was constitutional under the provisions of the Fourteenth Amendment (hat tip to Jack Balkin and Balkinization, linked above). But I think it ironic that misquoting Scalia actually gets closer to the true application of Scalia's jurisprudence. After all, Scalia is to be applauded for demonstrating the limits of his own jurisprudence. Certain laws, he says, may be appalling. Or just stupid. But that does not necessarily mean that they are unconstitutional. I agree. But, I fear, application of this judicial philosophy would have upheld school segregation in 1954. And Scalia ought really to come to terms with it.

Veterans, the Desert Cross, and the Separation of Church and State

The Supreme Court heard oral arguments yesterday in Salazar v. Buono, an interesting (albeit somewhat technical) case involving the existence of a five-foot white cross on public land (in the Mojave National Preserve) erected by the Veterans of Foreign Wars to honor those who died in World War I. The VFW was initially hit with an injunction directing that the cross not be displayed as a violation of the Establishment Clause of the First Amendment. The federal government covered the cross, and Congress in the mean time organized a land transfer to the VFW that required that organization to maintain a war memorial on the land. A second injunction was sought, the district court ruled the land transfer invalid, the Ninth Circuit upheld, and the case is now pending before the Supreme Court.

The most interesting exchange in oral arguments was arguably the least important, from a legal standpoint. The issues before the Court (e.g.: standing of the respondent; constitutionality of a land swap with a reversionary interest) turn on technical issues that will have to be translated into English for the rest of us. But the interesting exchange had to do with the meaning of religious symbols. I quote from the transcript, which you can find here.

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG (counsel for the respondent): I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me --what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have ben in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

Outrageous indeed. Scalia probably meant that the intent of the cross's erectors (the VFW in 1934) was to honor all the war dead. What he left out was that in 1934, the VFW could conflate "American war dead" with "Christian war dead" and receive very little in the way of argument. This conflation may still have offended Jewish, Muslim, Buddhist, and veterans of other faiths, but this was not the intent of the VFW. They were simply using a common cultural symbol. In this sense, Scalia misses the mark entirely--his comments were predicated on the fact that nowhere did the memorial explicitly exclude any other religion. But symbols are useful precisely because they implicitly (through a cultural identification process) include and exclude certain groups of people. To be blind to this is to be obtuse (if not outrageous).

But I reiterate: this exchange was not central to the issues in the case. It is interesting precisely because it gets at the heart of the question of how culture can inform our understanding of legal and constitutional issues. And for the record, I understand Scalia's evident frustration. I attended Pomona College, an educational institution founded by Congregationalists and whose official seal portrays a cross and the words: "Our Tribute to Christian Civilization." As a senior student there, I publicly opposed changing the seal to be more inclusive. I did so not because I value "Christian Civilization" (it is a misnomer), but rather because the symbol has historical import and we cannot simply change out symbols in the name of multiculturalism without risk of losing our sense of historical presence.

The same argument, I think, might apply here. And the oral arguments are worth perusing just to see how the justices signaled one another about the inherent trickiness of Establishment Clause jurisprudence, and just how much context matters in making determinations that honor the spirit of the First Amendment, the concerns of a pluralistic United States, and our own sense of identity and history.

Rove, the DOJ, and the Politics of Law

The cacophony accompanying health care reform has drowned out most other news these days, but this one ought not to slip through the cracks: internal documents released to federal prosecutors have shed light on Karl Rove's role in the firing of U.S. attorneys by George W. Bush. For those who need a refresher, the scandal stems from the firing of eight U.S. attorneys. Democrats complained that the attorneys were specifically targeted for political reasons (namely, for not using their position as U.S. attorneys to investigate voter fraud in districts where Democrats held seats). Conservatives have responded that such rotation-in-office is a fundamental part of democracy, practiced by both political parties.

They are right, of course, but this scandal has deeper, more sinister undertones. We are not talking about rotation in office so much as a perversion of the role of the Justice Department, from that of an impartial legal authority charged with carrying out and executing laws (passed by Congress, one must note) to a surgical political tool, in the service of a particular party.

Rove has downplayed his role. Nonetheless, the e-mails he sent in the thick of the battle seem to implicate him in manipulating the justice system. This, of course, fits his profile. Rove has self-consciously modeled himself after Mark Hanna, the Republican strategist who midwifed the modern political campaign in 1896 and engineered a Republican majority that lasted the better part of a third of a century. It should surprise no one, not even Rove supporters, that he was sedulous in his efforts to use all the powers at his disposal to achieve a like result. (His failure will be a matter for scholarly reflection for decades to come.)

It is unclear, however, precisely what will come of all this. It is doubtful that Rove will be prosecuted. If anything, this is evidence of executive branch mismanagement, and that also fits the M.O. of our last president, who simply did not have the wherewithal to know what was going on where. But we are hardly going to prosecute Bush for his incompetence. Will we prosecute Rove for his malevolence?

There are convincing arguments against such prosecutions, the main one being that we do not want to engender a culture of using official power to punish the last party in office. While serious offenses (woeful disregard of laws prohibiting torture, e.g.) should not be overlooked, the manipulation of executive departments for political gain may well fall into a more minor category. (This recalls, at least in part, the question visited during Clinton's impeachment: what precisely constitutes a "high crime or misdemeanor"?)

I advance the following as an observation only, but perhaps it is time for Congress to assert a more predominant role as watchdog against executive excess. This must occur while the president is in office, not after. It might also require some institutional reform, in terms of how people are removed from office and for what reason. And the weapon of impeachment, seriously unleashed only three times in our nation's history, needs a more serious and solid institutional and intellectual foundation. It is worth note that 2 of the 3 impeachment rumblings, against Andrew Johnson and Bill Clinton, were unapologetically partisan in nature. What will it take to establish some guidelines for serious congressional checks on an executive that has become, for all intents and purposes, an elective kingship?