No surprise to find one of conservatism’s biggest hacks Jonah Goldberg writing at Rupert Murdoch’s yellow rag The New York Post. The morally and intellectually lazy tend to like the same squalor. A Supreme fetish
Imagine the Supreme Court was wiped out in an asteroid strike, or maybe ate some re ally bad clams. Whatever. With the court temporarily out of the picture, could Congress and the White House ignore the Constitution, locking up Tea Partiers or ACLU members?
“I have been fascinated by [Delaware Senate candidate] Christine O’Donnell’s constitutional worldview,” Slate magazine’s Dahlia Lithwick confessed. O’Donnell had said, “When I go to Washington, DC, the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.”
To which Lithwick, a widely cited expert on the Supreme Court, responded, “How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?”
Goldberg acknowledges the SCOTUS being swiped out is a ridiculous scenario but still uses it as the foundation of his premise. Goldberg’s feigned claim to be perplexed as to how such an event would present some serious problems is dishonest and disingenuous. Except of course unless he is an ignorant of U.S. history and the legal precedents set by the Supreme Court. Absent the Court legislators with Christine O’Donnell’s ideological bent could be rusted to only sign legislation into law which is constitutional. You know Goldberg does not believe that. Just substitute any Democrats name where he says Christine O’Donnell. As a matter of fact she would cast a vote against Medicare and unemployment insurance because she believes them to be unconstitutional even though that point of law has been settled. Goldberg also ties his thesis to recent Republican Pledge that states Congressional representatives not sign into law any legislation which is not supported directly by language in the Constitution. In typical Goldbergian manner he cites Marbury v. Madison(1803) and the establishment of judicial review yet shows two examples of presidents not signing two laws before they faced judicial review. Why is that support for his argument. Apparently because much of the time presidents and legislators can simply spot an unconstitutional law before signing. Though from almost the very beginning there were challenges to the constitutionality of law. Since these are the cases which have had such a large effect on how precedents affect law making and succeeding laws are drafted it is reasonable to believe O’Donnell ( who does not believe in separate of church and state) would vote to remove a woman’s right to have autonomy over her own body even though the Court has settled the question. While “originalists” tea nuts Sharron Angle and Joe Miller would do away with Social Security and Medicare – the constitutionality of these programs also settled law. How would the tea bagger originalists have voted on navigation rights granted by a state. Such rights are not explicit in the Constitution. So rather than the neat examples Goldberg provides us how would O’Donnell or the adherents of the Republican pledge vote on something on which there was no explicit constitutional instructions. In Gibbons v. Ogden (1824) the State of New York granted exclusive navigation rights of their waters to Robert Fulton and Robert Livingston. They in turn gave Aaron Ogden the rights to navigate between New York and the New Jersey shore ( this also brings up interesting issues pertaining to monopolies, capitalism as practiced in the early years of the nation and early influence peddling). Ogden then found he was competing with Thomas Gibbons. Gibbons was operating under a license given to him by the U.S. government. Ogden acquired an injunction against Gibbons. Gibbons appealed that injunction. The SCOTUS ruled Congress’ interstate commerce powers did not just apply to “traffic”, but unless specifically spelled out in the Constitution, the federal government’s power to regulate such commerce was unlimited. Gibbons v. Ogden (1824) established that any time federal law and state law come into conflict over this matter, federal law takes precedence. Is is possible O’Donnell, Angle and Miller would vote state’s right supersede the commerce clause since there was obviously an issue, as far as these rights go, early on in U.S. law and commerce. The full context of Dahlia Lithwick’s remarks were about the role of the judicial and legislative branches of government. To address the proper role of the courts and the constitutionality of any law. A nod to the check and balances the branches have on one another. It is obvious all legislators have to take an oath to uphold the Constitution, but if that were simple there would be no debate and one assumes no meaningless Republican pledge. How much contradiction can Goldberg pack into three short paragraphs,
The debate over whether the courts are the final word on the Constitution is more than 200 years old. The debate over whether they’re the sole arbiter of constitutionality is extremely recent and extremely silly.
Too many politicians — in both parties — have abdicated their most solemn duty: to support and defend the US Constitution. George W. Bush signed campaign finance reform even though he thought much of it was unconstitutional. Nancy Pelosi thinks the Constitution has as much relevance as a pet rock. Asked if the health-care bill was constitutional, her eyes grew perceptibly wider as she incredulously asked, “Are you serious?” ( being Speaker Pelosi would be familiar with the commerce clause and would be shocked someone asking questions at a press conference would not also be informed on same)
The real issue is quite simple. If more politicians were faithful to the Constitution, the government would be restrained. And restraining government is “weird,” “wacky” and “dangerous” to so many liberals today. ( George W. Bush found the Constitution pretty threatening. At times seeming to declare war on it as though it too was a national security threat)
If a law passed by Congress is challenged and the Supreme Court makes a ruling then most of the time they are in fact the final arbiters. Though we know from day one the Founders had some convenient lapses of equality as to how the Constitution was applied and how freedom should be dispersed. Slavery was tolerated and states were allowed to say a human being was either not a person or only a fraction of a person. Women were not much better than slaves and were denied the vote and equal protection under the law. Goldberg makes the statement about silliness after stating that obviously Marbury v. Madison(1803) is familiar to everyone and of course no one would seek to undermine that ruling. Differences are silly but also engraved in stone? The SCOTUS is the sole arbiter. Though, and this concept is one conservatives should come out of the closet and embrace ( conservatives do believe in this now when convenient, but the concept is contradictory to the originalist meme nonsense they’re selling like cheap retreads), is the concept of democratic constitutionalism. Whereby the Court(s) reflect changing values of society. Up until 1896 the legislature and the courts recognized separate but equal. In Plessy v. Ferguson (1896) the SCOTUS decided that separate but equal as it pertained to accommodations for black and white was sound law, but in Brown v. Board of Education of Topeka(1954) the Court declared in favor of the dissenting opinion of Justice Harlan in Plessy(1896), “The Constitution is color-blind and neither knows nor tolerates classes among citizens.” Why do conservatives think it is so important to stack the SCOTUS and lower courts with right-wing ideologues ( which would be one of the things Goldberg also finds silly if he were consistent)? Because they believe many of the major SCOTUS decisions with which they disagree can be reversed given changing times and enough far Right judges.
How would any of the Republicans who adhere to the “pledge’ vote on net neutrality. There is no mention of the internet in the Constitution much less how or if it should be regulated. Will they veto all legislation pertaining to net neutrality since it is not explicitly spelled out in the constitution. In the 1st Amendment one can find implicit reason not to vote for doing away with net neutrality. Corporations will be able to choke off certain web traffic and thus limit free speech, freedom of the press ( some think there will only be digital newspapers in a few years), freedom of religion and freedom to petition. How would or could the tea baggers even vote on legislation pertaining to air traffic control. Airplanes are not mentioned in the constitution. Where are the O’Donnells of Goldberg’s dream team Congress going to find the Constitutional right to regulate air traffic. They’re going to have to do some interpreting of the commerce clause. Many proponents of health care reform think the American people have the right to join together to create an insurance exchange via the private sector insurance industry to buy basic health insurance coverage. Where are the tea nuts going to find an explicit injunction against having the freedom to create such a program. How will tea baggers vote on creating new hearts for transplant patients with heart disease from cloned cells. The Constitution does not have an explicit ban on creating new hearts from cloned cells. Weird and silly is trying to put a straight jacket on the Constitution – a 232 year old framework created at a time where there was no net, no cell phones, no air traffic and not much in the way of health care.
One of the more recent and weird interpretation of the Constitution was Citizens United. That was where, once again, the conservatives on the court found not only did corporations have the same rights as individual citizens. Corporations had special rights by way of their ability to express more free speech because they could buy more of that speech than an actual individual citizen. “Citizens United: The Aftermath,” by Monica Youn
After news of the Citizens United ruling sent shockwaves through political, legal, and news media circles throughout the nation, some commentators took a somewhat jaundiced view, arguing, in essence, that since the political system is already awash in special-interest dollars, this particular decision may have little impact.11 It is undoubtedly true that in the past, corporations have engaged in large-scale spending in federal politics –primarily through political action committees (“PACs”) and through more indirect means, such as lobbying and nonprofit advocacy groups.12 However, the sums spent by corporations in previous elections are miniscule in comparison to the billions of dollars in corporate profits that the Supreme Court has now authorized corporations to spend to influence the outcome of federal elections. The difference, in short, changes the rules of federal politics.
Prior to Citizens United, a corporation that wished to support or oppose a federal candidate had to do so using PAC funds – funds amassed through voluntary contributions from individual employees and shareholders who wished to support the corporation‘s political agenda. Such funds were subject to federal contribution limits and other regulations.13 Now however, the Citizens United decision will allow corporations that wish to directly influence the outcome of federal elections to draw from their general treasury funds, rather than PAC funds, to support or oppose a particular candidate. This difference is significant enough to amount to a difference in kind rather than merely a difference in degree, as demonstrated by the following observations.
In the 2008 election cycle, the nation‘s largest corporation, Exxon-Mobil, formed a PAC that collected approximately $700,000 in individual contributions.14 Thus, Exxon-Mobil was limited to spending this amount on advertisements directly supporting or opposing a federal candidate. During the same 2008 election cycle, Exxon-Mobil‘s corporate profits totaled more than $80 billion. 15 Thus, Citizens United frees this one corporation to increase its direct spending in support or opposition to federal candidates by more than 100,000 fold.
During the 2008 election cycle, all winning congressional candidates spent a total of $861 million on their campaigns – less than one percent of Exxon-Mobil‘s corporate profits over the same period.16
It goes into the legal arguments in the full pdf. In absence of those arguments, which rely on over turning previous SCOTUS rulings, thus legal precedent, how would the tea baggers vote on a piece of legislation which would close some of the gaps in regulation corporate spending which Citizens opened. What explicit part of the Constitution would the tea baggers site to explain their votes for or against allowing more corporate influence on federal elections. They claim to be a populist movement. Would they, as Goldberg suggests, simply intuitively know what was Constitution in regards corporate influence on elections in a high tech media saturated culture.
“I hope we shall… crush in its birth the aristocracy of our
moneyed corporations, which dare already to challenge our
government to a trial of strength and bid defiance to the laws of
our country.” –Thomas Jefferson to George Logan, 1816.