There is a line in “A Fish Called Wanda” that comes to mind when I think about Tea Party Conservatives and many of what passes for main-line Republicans these days. Wanda is talking to Otto and he says “Apes don’t read philosophy” Wanda replies “Yes, they do, Otto, they just don’t understand it”. That is where I am with Tea Partiers and the Constitution.
Sure they claim to have fealty to it, in that invariant way that some believers claim about the bible, but what good does it do you to be faithful to something you clearly don’t understand? Take the soon to be Governor of Maine, Paul LePage. He was quoted recently as saying:
“I am going to be sitting with our attorney general and ask him to join the (health care reform) lawsuit against the federal government,” he said, adding he just learned that if 35 states join the suit, the law “dies, automatically.” Twenty states so far have joined the suit, filed in federal court in Florida, to repeal the provision in health care reform law that requires individuals to purchase health insurance.
Yeah, that’s right, this stalwart defender of states rights thinks that just because 35 out of 50 states file a law suit against a federal law it “automatically dies”. Sorry to tell you Governor Elect but there is nothing in the Constitution or the ACA that triggers the death of a law just because states file spurious law suits. Anyone with even a basic understanding of politics and the law would grasp why that could not be the case. Still that does not matter the “constitutional faithful”.
This has been one of the most frustrating thing about the rise of the Tea Party and the idea of case law nullification. If you look at the statements by so-called strict constructionists you’ll often find them telling you the Constitution does not say X. Which is likely to be true in the literal sense that it is not written directly in the Constitution; the thing is that there is often 200 years of case law which bring our commonly understood rights and protections into focus.
That is the purpose of the Supreme Court, to adjudicate what is within Constitutional boundaries and what is outside. Like all ideas tested over time and evolving in a society they have changed from what the people who wrote them may or may not have intended. In fact this is a feature not a bug, as the Framers never intended their words to be a set of shackles to bind unborn generations to their way of thinking. The Framers wanted to be able to form and run a nation as they saw fit and would never have wanted to keep their cold dead hands on the tiller of the ship of state if it were against the overall will of the people. It is clear in the mechanisms that they wrote into the Constitution for its alteration.
Yet the so-called “defenders of the constitution” on the Right would think to impose an idea that would have been anathema to the Framers. There has been far too much talk from asshats like Gov. Rick Perry of Texas on the idea of nullification. The premise is that even though the Constitution itself claims that Federal law will always trump State law (it is called the Supremacy Clause for a good reason) the Tenth Amendment is more important when it says that all rights not reserved by to the Federal government devolve to the states.
What these yahoo’s miss is that all it takes for the Federal government to have jurisdiction is for it to decide that it has it. Some of this confusion probably comes from the meme that the Conservatives have managed to ingrain in many of their ranks, that the Federal Government is somehow separate from the states, that it is imposed instead of voted in and capable of being voted out.
This misreading of the Constitution goes further. Everyone’s favorite lunatic Christine O’Donnell was correct when she says that the separation of church and state is not specifically written into the Constitution, those words do not appear there. However for 200 plus years (including all of the years that the Framers lived and ran their new government) it has been understood that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
Means just that; there shall be no state sanction for any religion or the prohibition on the practice of a religion.
All of this leads us to the where we are today, with a large portion of elected Federal officials who have taken and oath to defend and uphold a document they don’t understand. Worse they have been encouraged to ignore the case law stemming from the document and just focus on the often archaic way that the early amendments were written.
There is value in trying to understand what the Framers intended, after all they did set up our form of governance, but not at the cost of being able to build on those traditions and adjust them if it is the will of the people. The way our legal and legislative system works is an extended work in progress. It is, and always has been, a kludge, a work around to move us forward with the best of intentions, knowing that it is imperfect and impermanent, and will always have to be adjusted in the future to deal with the facts on the ground at the time.
This is what makes it great. The ability to have that uncertainty, that wiggle room which allows us to try goofy things like prohibition of alcohol and then to decide they are goofy and rectify them.
Perhaps it is some form of future shock which has Tea Partiers and other Conservatives scrambling to lock down the future by retreating to a mythical past. Perhaps is it the virus of Authoritarianism infecting our body politic. Whatever the case it is clear that we will have apes who think they understand the Constitution telling us what they think it means and trying to govern that way for some time to come.
The floor is yours.
2010-12-06
Apes Reading The Constitution | MyFDL
