More Hatred of the Rule of Law

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What does it mean to "hate the rule of law"? I've used the phrase often, and I've explained it, but we're due for a recap. Time magazine subscribers may wish to pay special attention.

To hate the rule of law doesn't mean to hate the law. Someone can love the law, but hate the rule of it. The rule of law means an obligation to follow the law, whether you like what it says or not. Many lawyers love the law, because it's a puzzle to be solved in their favor, to twist it into an argument backing their preferred case: they cannot stand the idea of just following what the law says. They hate the rule of law.

Shred the Constitution

In the last week we've seen a perfect example of hatred of the rule of law from Richard Stengel, editor-in-chief of Time magazine. Stengel wrote the cover story to Time's recent issue, called "One Document, Under Siege" under the cover of the U.S. Constitution being shredded, with the caption "Does it Still Matter?" In the piece, Stengel does his best to retell the story of the Constitution in such a way that backs up his essential premise, which is perhaps best summed up as: the Constitution has absolutely no meaning outside of what the Supreme Court says it means.

He claimed one of the most obviously false and malicious statements ever written about the Constitution, writing, "If the Constitution was intended to limit the federal government, it sure doesn't say so," despite the fact that the Tenth Amendment does explicitly say so: all powers not delegated to the federal government, by the Constitution, are reserved to the states and the people, respectively. That is nothing but a limitation on federal power. Stengel dishonestly doesn't even mention the Tenth Amendment.

James Madison, famously, said much on the subject, even saying that the Tenth Amendment was superfluous, but that adding it could do no harm. He said in Federalist 45 that the federal government's powers under the Constitution were "few and defined," contrasting to the states' powers as "numerous and indefinite." He said on another occasion that throwing open any matter to federal legislation "would subvert the very foundations, and transmute the very nature of the limited government established by the people of America."

Stengel goes on to imply Article I, Section 8 grants unlimited power through the "necessary and proper" clause, and he even quotes it. But despite quoting it, he somehow misses the part where the "necessary and proper" powers are explicitly linked to "carrying into execution the foregoing powers," that is, the enumerated ones. The Constitution doesn't grant the power to Congress to do anything at all the Congress deems "necessary and proper," it has to relate to one of the other, enumerated, powers.

Again, Madison thought that by specifically drawing up what the federal government could do, this sufficiently implied the federal government could do nothing else. Stengel, however, flips this on its head, implying that because it lists off so many powers, this implies that there are no limits. He never stops to ask: if the government is unlimited, then why explicitly grant specific powers, and add to that any additional powers "necessary and proper" for those specific powers? Why not just write, "the government can do as it wishes," or just not mention powers at all?

And this is, of course, why Madison consented to including the Tenth Amendment in the Bill of Rights, because people like Stengel would so badly misinterpret the document, thinking that the federal government can basically do whatever it wishes, which means that "the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."

But because Stengel doesn't believe in the Constitution at all, it really doesn't make a difference what Madison wrote, or where he wrote it. Stengel literally ignores the explicit text of the Constitution when it doesn't suit his designs. Let that be a lesson to us.

Federal Power is Whatever We Decide at the Time

And I don't exaggerate: Stengel really believes the Constitution has no meaning, at least, not outside of the Supreme Court. He denies Justice Felix Frankfurter's assertion that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it," saying on This Week: "[Something is] unconstitutional if the Supreme Court decides it's unconstitutional." That's it. There's literally no other way to know. We certainly can't read the Constitution to know. George Will pressed, and asked, "Does Congress have the constitutional power to require obese people to sign up for Weight Watchers?" Stengel replied, "I don't know the answer to that."

Fellow panelist, Georgetown professor Michael Eric Dyson, said he does know the answer: "If they decide that they will, they will have the power to do so."

These people are everywhere, in the media, in the government, and they simply do not believe in the existence of, or government obligation to secure and respect, our rights. In fact, Will might have been the only one of the five on the panel to disagree with Stengel.

In the greatest contemporary example of federal powers, Stengel called the notion that government can't mandate the purchase of health insurance "kind of silly," saying that, well, it crosses state boundaries, so it's justified (just how he justifies using the text of the Constitution to defend a law that hasn't been before the Supreme Court, when he believes only the Supreme Court decides constitutionality, is unknown).

Stengel added, "the government can ask you to do things," to which Will interjected, "It's not asking us, it's mandating." Stengel persisted, "It asks us to pay our taxes. It asks us to register for the draft. It asks us to buy car insurance if we want to drive our car around."

Stengel is here, too, being deceptive: the 16th Amendment explicitly grants the power to mandate that we pay income tax, and Article I, Section 8 explicitly grants the power to collect some other taxes. Following this model, where is a similar section of the Constitution that allows it to force us to buy insurance? And car insurance is not mandated at all: we don't have to drive on the public roads, and many people do not have car insurance. To follow this model, we'd only have to require purchase of insurance from people who were going to use public health facilities. And many people -- including myself -- believe the military draft is entirely unconstitutional, for much the same reason that the health insurance mandate is.

Stengel was falling all over his own arguments, and nowhere was this more clear than when he compared the Constitution to a blueprint for a house: "It doesn't tell you what color curtains to have or whether to have it two stories or three stories." You see, we can make all our own decision that aren't in the blueprint, right down to the number of stories in the house! The problem is, of course, that house blueprints -- like the Constitution -- have far more requirements in them than Stengel wants us to believe.

Yes, the Constitution is very much like a blueprint: there's a whole bunch of specifics you have to follow. You have to keep the home within certain guidelines, you have to include certain features, and you cannot change any of the requirements without approval. Within that blueprint, there's significant room for discretion, but you can't go over the property boundary, you can't dig too deep, you can't build too high, and you have to have a certain number of toilets. If you go outside of those requirements, you will get slapped down. The blueprint is clear and, except through the agreed upon amendment process, immutable.

So yes, that is just like the Constitution.

Amend or Pretend?

Now, these statements by these people should scare you, if it's new to you. But it shouldn't be new to you. There's a huge number of people -- and as Will has pointed out, it's been a battle for a hundred years now -- who simply believe the Constitution doesn't matter, as Stengel believes. It's a document that has no meaning outside of the Supreme Court, and the Court is, of course, free to interpret it however it wishes. According to these people, we literally have no rule of law, but only rule of men.

Dyson was the panel's defender of one of the oldest assaults on the Constitution: that it must remain flexible so that, for example, blacks could have rights. He -- a black man himself -- even expressed the notion that, "Were it not for some vibrant reinterpretation of that document and appealing to its living legacy, none of us could be here. I wouldn't be here talking to you, not as an equal, at least."

Ignoring Dyson's incredible statement that only a court's interpretation of a written document can foster significant change toward equality, Will asked, "do you amend the Constitution by the casual weak interpretation of it, or do you candidly, when you want to change the structure of the government, change it by the amendment process they provided?" Dyson beagn to respond, but moderator Christiane Amanpour jumped in with, "We're going to discuss that after a break." They never did, unfortunately. Perhaps Dyson kicked her under the table during said break.

But I see no "vibrant reinterpretation." I see the passage of amendments that mandate equal rights for Dyson and everyone else, with or without his pigmentation. I do see decades of the courts ignoring those amendments, but it is nearly impossible to argue that our current interpretations are somehow not directly in line with the original intent of them. I defy Dyson, or anyone else, to tell me how "no State shall ... deny to any person within its jurisdiction the equal protection of the laws" does not mean that on state shall be allowed to deny to any person the equal protection of the laws.

What's really startling is that the reason the 14th Amendment was not interpreted to protect the rights of black people for so many years is because of the rule of men: the Court was -- through racism and fear -- unwilling to interpret the amended Constitution as it was written and intended, to protect the rights of black people the same as white people. Dyson is literally arguing for a system that prevented black people from getting their rights far earlier than they actually did: the rule of men.

Rule of Men Recognizes No Rights

It barely needs stating, to my mind, but I'm obviously wrong, because people like Stengel are all around, so I'll point it out clearly: if only the Supreme Court decides constitutionality, then the government does not recognize any rights at all. We may claim rights, and fictionalize government recognizing them, but if the Court can choose on a whim to recognize them or not, then they aren't rights at all: they are merely privileges it wants to grant us at the time it rules, which it may rescind at its pleasure. If Stengel is right, then Jefferson and Madison are wrong: our government does not exist to secure our rights, and is not limited. Even the Constitution's Preamble itself is wrong, as Stengel's argument is that we have no liberty, and therefore the Constitution cannot exist to secure the blessings of liberty.

The main purpose of the Constitution was summed up in Federalist 10 by James Madison. He remarked on the problem of "faction," which is "a number of citizens ... who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community," and warned that "when a majority is included in a faction, the form of popular government ... enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens." He said "the great object to which our inquiries are directed" was "to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government."

The whole point was to protect us from majorities taking our rights. And the rule-of-law haters like Dyson and Stengel and a hundred years of progressives before them, want to push us directly into that model, where the Constitution literally doesn't matter. It's just something to be molded into whatever we wish it to mean at the time, such that it protects no rights whatsoever, provides no guarantees of any kind, and ends the cause of true justice.


I could go on and on, and pick apart the statements from Stengel and Dyson, each one, slowly and brutally. But it'd be fruitless; there's so much there and I have so little time. Instead, I'll just leave with one of the most brilliant statements on the Constitution you'll ever hear on Sunday morning talk, from George Will:

... the framers of the Constitution wanted to strengthen the federal government, but they knew that government is a. necessary, and b. inherently dangerous. And therefore, in the act of creating a more competent federal government, they sought to limit it.

James Madison, the architect in the definitive commentary on the Constitution, the Federalist Papers, specifically in Federalist 45, said, the powers delegated to the federal government by the proposed Constitution are few and defined. That's either true or it's not. ...

It's one thing to say it's open to interpretation, which it obviously is. It's very open-textured language. ... I mean, when you say unreasonable searches and seizures, what's reasonable? We argue about that. But to say that the Constitution is a living, evolving document ... is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia has said. It is intended to put certain things beyond the reach of transient majorities. That's the language of Justice Jackson in a famous case.

The point of the Constitution is that majorities are dangerous, and we have to protect against them. Hence, when Oliver Wendell Holmes said, if my fellow citizens want to go to hell, I'll help them, because that's my job, he was saying the Constitution exists to enable majorities. That's exactly wrong.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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