Chris White:

Can you point to an earlier time in American history when the meaning of each Article and Amendment remained so obvious to everyone that the Supreme Court convened merely as a ritual exercise because they had no cases pending? Can you point to a time when the Justices routinely handed down unanimous decisions.

You are obfuscating the issue. Of course that every law is vague and unclear to some extent. Even the obvious and uncontroversial laws such as those against murder have numerous borderline cases that will always be subject to endless debates and controversies (in the case of murder, for example, various accidents, self-defense, euthanasia, etc.). However, the equivalent of what I was talking about would be handing out life sentences for parking violations under murder laws, supported by an elaborate jesuitical legal theory that draws parallels between wrong parking and murder, while at the same time maintaining that it's OK to slit someone's throat just for fun because some other piece of quasi-logical sophistry leads to the conclusion that such acts are not covered by the standard legal definition of murder.

There are reasonable disagreements about the meaning and interpretation of laws, and there is blatant and shameless disregard for their plain meaning motivated by ideology. You can't possibly deny that the present U.S. constitutional law involves enormous amounts of the latter, including but not limited to the examples from my above comment. It is also obvious which constitutional clauses are being pursued with enormous zeal and interpreted as broadly as possible beyond all logic, and which ones have been swept under the carpet -- all this with a clear ideological motivation. Hiding between claims that laws have always been subject to controversy of interpretation can be only ignorant or dishonest.

From the beginning of the republic there have been legal arguments between those who would place greater weight on the connection between citizen-soldiers serving in a defensive militia and gun ownership and those who essentially ignore the opening half of the amendment and exclusively concentrate on the language of the second half of the sentence long Amendment...

In fact, Switzerland, which I pointed out as an example of a political system involving a functional equivalent of the Second Amendment, operates according to the former interpretation. It has a militia of citizens who keep their arms in their homes (although this practice probably won't last much longer under the pressure of the EU and the domestic Left), and it has no standing army. However, it also strictly regulates firearms owned for private purposes. I don't see any problems with such an interpretation of the Second Amendment. Where I see the problem is the near-complete disregard for it. Last year's Heller case was the first SCOTUS opinion expressed about it in 69 years, while in the same period, SCOTUS produced a whole library of jurisprudence about the rest of the Amendments 1-8, almost uniformly trying to broaden their scope. (And applying them against state and local governments without any constitutional basis, under the "incorporation doctrine" concocted out of whole cloth.)

I am having a tough time untangling this linguistic construction. It seems to say that the legal interpretation of the First Amendment should allow discrimination based on religious belief and also that political and artistic beliefs should be considered equal to religious beliefs. Furthermore, I'm unclear as to what ways political and artistic beliefs are being routinely discriminated against.

The laws of (nearly?) all modern Western countries, including the U.S. federal law, consider religions to be among the special groups protected against discrimination in housing, employment, etc., just like race, national origin, or sex. Your employers can demand you to look and behave a certain way at work despite your personal preferences -- unless it's contrary to your religion, in which case the burden is on them to go to all lengths to accommodate you. Furthermore, outside the U.S., in countries that American progressives often extol as examples to be imitated, expressing hostility to particular politically protected religions is prosecuted as hate speech (for obvious reasons, traditional Christianity normally doesn't enjoy such protection there). So clearly, the government does award religions a special protected status, and it doesn't treat other sorts of beliefs and attitudes the same way. If you really support total separation between religion and government, you should logically oppose this state of affairs. And yet, among the people who frenetically insist that every religious symbol in public life constitutes intolerable theocratic oppression, how many would subscribe to this conclusion?

So, the whole modern business of "keeping politics and religion separate" boils down to two absurdities. First, "religion" is defined so as to eliminate traditional theistic religions from the public sphere, whereas at the same time far worse superstitions and irrationalities are being shoved down our throats as official government doctrines. Second, despite the insistence on absolute secularism in other matters, religions -- similarly defined so as to be politically convenient -- are awarded special status in anti-discrimination and hate crime legislation that other sorts of beliefs don't enjoy. Believing that this state of affairs is based on some clear, logical, and reasonable principle is a complete delusion.

Posted by: Vladimir on July 9, 2009 4:21 PM

"It is also obvious which constitutional clauses are being pursued with enormous zeal and interpreted as broadly as possible beyond all logic,..."

I have a feeling the clauses you feel are being interpreted as broadly as possible beyond all logic are one that I feel are being applied correctly. As Chris stated, it's a matter of interpretation. Which clauses exactly are the ones you feel are being over-applied? The 2nd Amendment?

Posted by: JV on July 9, 2009 6:12 PM

Well, it is good that we have Vladimir to give us the final definitive word on the one and only, true and correct way to interpret the Constitution. Now, if only all those pesky, meddling, politicians, lawyers and judges would stop foisting their own distorted views on an unsuspecting public and let Vlad run things, everything would be fine and all of the People would cease to have any reason to disagree.

Given that Justices appointed by "conservatives" have had a majority (admittedly a slender one) on the SCOTUS for the better part of the past two decades I hardly buy the assertion that there is some egregious distortion in their interpretation of the Constitution aimed at furthering a conspiracy to subvert the intent of the founders and create new, dangerously liberal, doctrines out of whole cloth.

Posted by: Chris White on July 9, 2009 6:17 PM

JV,

I can't possibly do justice to this topic in a few brief blog comments. The relevant information is easily available, and the facts speak for themselves if you only study the history of the development of the presently reigning constitutional doctrines. You may also ask yourself why significant expansions of the federal power before the New Deal required formal constitutional amendments (for example, the income tax or the alcohol prohibition), whereas equally significant ones that happened later needed no such thing, and were justified by creative reinterpretation of the Constitution instead. Have you ever wondered why the federal government had to pass a constitutional amendment (the 18th) to ban the sale of alcohol in 1919, but the modern federal drug laws enacted since 1970, which are far more strict and expansive, have needed no such amendment?

Mind you, I wasn't even criticizing any practical consequences of the present system. You may well argue that the creative rewriting of large portions of the Constitution from the bench since the New Deal has had uniformly good consequences, and you'll probably have a point in at least some particular cases. However, those who dislike these consequences -- regardless of whether their motives for this dislike are wrong or right, honorable or contemptible -- are fully correct when they point out that the present state of affairs has come into being through such rewriting, in violation of both the plain textual meaning and all previous precedent.

Posted by: Vladimir on July 9, 2009 8:08 PM

Chris,

You seem to be eager to classify your collocutors into simplistic ideological categories, and refuse to accept that reasonable perspectives might exist outside of that. According to you, if judges nominated by Republicans and Democrats agree about something, then it's obviously true, since it's unimaginable that anyone sane could question the established doctrines of the political mainstream. (By the way, you seem to be unaware that the SCOUTS Justice Clarence Thomas has written opinions along more or less the same lines as some of my arguments here. And before you reflexively assume that he's been doing that only in service of demented right-wing lunacy, read, for example, his 2005 dissent in Gonzalez v. Reich, where he explains that the feds' power to punish you for possession of weed is plainly unconstitutional, contrary to the post-New Deal doctrines based on creative reinterpretaton that were upheld by the rest of the court.)

Other than that, I have no interest wasting time with people who reply to honestly and extensively argued points with mindless scoffing, so this will be my last reply to you in this thread. After all, any arguments outside of the political mainstream must be insane anyway, so there's no point bothering to even understand them, right? I suppose speaking power to truth is fun in its own way, but I'm tired of being on the receiving end.

Posted by: Vladimir on July 9, 2009 8:17 PM

Apropos of shaking off the Robber Barons and their D.C. running dogs: localism and the Bank of North Dakota.

Posted by: Moira Breen on July 9, 2009 10:49 PM

Vladimir - btw, appreciate your taking the time to put down these thoughtful and compelling comments. (And will resist base temptation to plagiarize "..speaking power to truth...")

Posted by: Moira Breen on July 9, 2009 11:21 PM

Pearls before swine, Vladimir. You're casting pearls before swine. You try reasoning with Chris and JV, that's all you'll ever get.

Look at how they've responded to you. Eructations like JV's "it's all a matter of interpretation", a statement utterly devoid of meaning, on the same level as "that's true for you" or "that's just your opinion" (actually Chris said something like that, didn't he?).

You won't get straight answers from these guys, Vladimir. It's just this headache-inducing exercise in frustration to try to get Chris W, JV or Tom West to answer any point, and another exercise, this time in futility, to expect any of them to contribute in any way to moving the discussion forward.

JV can make interesting comments about culture. But make intellectual demands on him, and he's helpless.

Tom West is mealy-mouthed and evasive and will not engage.

Chris White is a weird, mentally and emotionally clotted moral fanatic of some kind, working out some weird moral fanatic psychodrama here at 2Bs. It's the same old same old with him, all the same old time.

OF COURSE, I VALUE HIS CONTRIBUTIONS TO THIS BLOG!

You want some serious fireworks, get into it with MQ. He's a clever one, and I've lost my temper with him a couple of times when I felt he was being too much the artiste in our disputes, so to speak. But he's smart, well-read, writes well, and provided you keep your eyes peeled for the, ah, legerdemain, the little prestidigitations he likes to pull, you'll get some serious responses to the points you're trying to make.

The others...swine unworthy of your pearls. Swine.

Posted by: PatrickH on July 9, 2009 11:23 PM

Oink.

Posted by: JV on July 10, 2009 12:49 PM

And another thing...!

Vlad's statement:
"I can't possibly do justice to this topic in a few brief blog comments."

That's not exactly tackling the issue. I asked him which areas of the Consititution he feels are being over-valued by the courts, and even offered the suggestion that perhaps one of them is the 2nd Amendment. Using the 2nd as an example, the fact that a single sentence as generated so much controversy and analysis may suggest that yeah, there's interpretation involved when making decisions and legislating based on the Constitution. You don't think that's true?

Posted by: JV on July 10, 2009 12:54 PM

JV:

I asked him which areas of the Consititution he feels are being over-valued by the courts, and even offered the suggestion that perhaps one of them is the 2nd Amendment. Using the 2nd as an example, the fact that a single sentence as generated so much controversy and analysis may suggest that yeah, there's interpretation involved when making decisions and legislating based on the Constitution.

You seem to be confusing the attention given to the 2nd Amendment in political debates and the actual attention given to it by the courts. In reality, the 2nd Amendment is one of the parts of the Constitution least discussed by the courts. There were only two significant SCOTUS decisions dealing with it in the last hundred years: U.S. v. Miller from 1939 and D.C. v. Heller from 2008. Even these decisions don't offer anything like a complete and coherent theory of its meaning. Its full interpretation is still an open question; in fact, before last year's Heller decision, its interpretation was an almost complete void. At the same time, SCOTUS has produced a whole library of elaborations on various other constitutional clauses, and continues to crank them out every year. Thus, some parts of the Constitution are indeed being constantly evoked and elaborated in every case where they might be even remotely relevant, while others are simply ignored for the most of the time. This is a simple statement of fact, which is true regardless of anyone's opinion about any of these decisions and issues.

As for the parts of the Constitution where there has been lots of creative rewriting from the bench, just read about the history of the interpretation of the interstate commerce clause and the 14th Amendment due process clause, or the development of the incorporation doctrine and the subsequent interpretation of individual amendments when applied to the states. The facts speak for themselves, as I said. Even if I agreed that all these developments were 100% for the better, my description from the above comments would still be accurate.

Posted by: Vladimir on July 10, 2009 5:37 PM

I am tempted to channel my inner Shouting Thomas, or any of a handful of 2BH regulars, who cannot simply debate with a modicum of politeness and respect over an opinion expressed with which they disagree, but who must heap personal invectives, insults, and accusations of all sorts on the person making them, hit my CAPS LOCK KEY, AND RETURN THE VOLLY OF INSULTS. But, since I lack the proper, politcally (in)correct stance for 2BH, if I do anything like that I’ll get tagged as ” working out some weird moral fanatic psychodrama” rather than being applauded as feisty and colorful so it would be a useless exercise.

Let’s, however, recap shall we? On a thread about secession I ask what existing countries spring to mind when a short bullet list of attributes that Sarah Palin or Ron Paul supporters might want to see incorporated into their newly sovereign, seceded, state. I suggest the Balkans, Pakistan, or Afghanistan might well be near the top of the list. This leads to a back and forth about whether Switzerland would be a better fit. I still don’t buy it. It is not that I wouldn’t admit that my suggestons are hyperbolic as I was seeking to make a point, but, seriously, Switzerland?

This goes off on a tangent (and lord knows I enjoy a good tangent as much as the next guy) about the Constitution and how various Amendments have been egregiously misunderstood &/or deliberately distorted over time … which I also do not particularly buy, at least not in the way Vladimir sets forth as undisputable fact.

This exchange, however seems to me to make my point that serious attempts to Dis-Unite the United States are likely to result in some fairly heated, possibly even violent, confrontations rather than being an easy, painless, process of ‘just doing what the people really want as expressed through ballots and their elected representatives. Imagine, say, the Second Republic of Texas trying to decide whether to be officially bi-lingual or not. [FWIW remember that Switzerland has four official languages.] Heck, imagine SRT trying to figure out how to close the border with Mexico without it becoming a constant border war.

There’s a meme that holds leftist weird moral fanatics are hopeless idealists who believe in fantastical utopianism but can’t deal with the way things actually are and don’t understand “real” human nature. This seems to be one of those moments where my suggestion that states may well be predictably Red or Blue where the Electoral College is concderned, but on the ground in those states there are citizens with the full range of diverse opinions. Any actual attempt on the part of a state or region to secede means those differences would have to be dealt with. Now, maybe Vermont could slip away quietly and become a crunchy granola, kumbya singin’, giant commune of tree huggers. But I suspect there are a batch of rock-ribbed Republican farmers who’ll say “my family’s been here since 1768 and I ain’t takin’ no s**# from a bunch of G## d#@! hippies” ready to bear arms and fight for a different vision of what the New Republic of Vermont should be and do.

Posted by: Chris White on July 10, 2009 8:31 PM

Oops, hit the send button too soon.

Patrick, given that Canada has a long history of seriously considering what happens should Quebec decide to secede, can't you offer something more compelling than taking cheap potshots at the leftist riff raff who stick around instead of being run off by the Purile Insult Brigade. And are you now a Major or a General in the P.I.B.?

Posted by: Chris White on July 10, 2009 8:39 PM

Michael, would you please take down my previous comment? It's beneath this blog, and should have been, but alas was not, beneath me.

If you read the comment, Chris, please accept my apology.

Posted by: PatrickH on July 12, 2009 10:52 AM

Thanks Patrick.

FWIW I did see it and did not find it especially over-the-top. I did, however, just delete a magnum opus of righteous indignation in response. It would have given you plenty of fodder for counter jabs.

As an echo from the now deleted comment I do, however, want to say a couple of things. First, while a flip and caustic tone often seems part of the 2 BH style sheet and I did direct a jab or two at Vladimir, I in no way intended any personal insult. I am extremely impressed with the respectful tone, compelling language and overall seriousness of Vladimir's comments. Reading what he has to say certainly gets me thinking harder and more deeply about topics, regardless of whether I agree with his specific positions. The same applies to many of the regulars here, which is what keeps me coming around to participate myself. That there are regulars with a wide range of political and aesthetic opinions is why I find 2 Blowhards one of the best blogs for participating in interesting, provocative, and often quite amusing give and take threads on a wide range of topics.

As for the substance of certain of the tangents in this thread, absent a thread devoted to, say, the Second Amendment, I remain unclear about exact position Vladimir holds on the topic and how different my own opinion might be from it. I do not, however, accept that his opinion (or mine) is a fact rather than an opinion. [Although his point that SCOTUS has managed for decades not to take cases that would deal more broadly with the issue is factually supported and well taken.]

Similarly, and more on target in terms of the topic of this post, I do not accept Vladimir's suggestion that Americans faced with getting a seceded Second Republic of Texas or New Republic of Vermont up and running would adopt the Swiss model for either gun ownership rights, responsibilities, and regulations or for the ease with which the Swiss contend with four official languages. My sense is that the American sensibility is quite different from the Swiss and there would be more contention and less conciliation here.

Finally, given that the prime topic here is secession, and given that your Canadian experience with perennial secessionist movements, especially in Quebec, has given you a perspective that seems highly skeptical of the viability of secession movements as real and practical solutions, but rather sees them as means of achieving partisan political goals, I am confused as to why we should be at odds on the subject. As noted previously, ever since reading The Nine Nations of North America decades ago, I enjoy imagining what a very differently organized North America might be like. That said, I am skeptical about it happening and, if it did happen, highly skeptical that the actual results would closely match my utopian image of what should happen.

Posted by: Chris White on July 12, 2009 1:34 PM

Patrick H -- The comment is now deleted.

UPDATE: I deleted the comment about half an hour ago and was starting this comment while Chris was posting his comment above.

Posted by: Donald Pittenger on July 12, 2009 1:35 PM

I am confused as to why we should be at odds on the subject.

Chris, we're not at odds over the secession movement. I agree with the "liberals" here who've tended to dismiss secessionism as either posturing, manipulative posturing, or hypocritical manipulative posturing. I don't take it seriously enough even to despise it.

Thanks for accepting the apology, Chris, and thanks to Donald for deleting the comment. You're right, Chris, it wasn't particularly over the top. But it had a mean tone, a pettiness of spirit, that dismayed me upon re-reading. I am actually attempting to become more what G-d apparently wants me to be, and that doesn't include being mean and low. Vitriol is probably out too, but that's going to take a while. And vitriol may have a purpose in the grand scheme of things. Mean doesn't.

Posted by: PatrickH on July 12, 2009 9:59 PM






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