Dispatches from the Creation Wars

Yes, Tom Delay apologized today in a press conference, not for what he said but for the way he said it:

“I said something in an inartful way, and I shouldn’t have said it that way, and I apologize for saying it that way.

But if you want a perfect insight into just how ignorant the man is of the constitution and of separation of powers, look no further than this interview in the Washington Times. Try this one on for size:

I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them. The reason we had a right to privacy is because Congress didn’t stop them.

No Tom, the reason we have a separation of church and state is because the first amendment was designed specifically to create one. And the reason we have judicial review is because Article III was intended for precisely that purpose. How does someone get to be in the Congressional leadership without reading the Federalist Papers, for crying out loud? If his district doesn’t bounce this babbling bobblehead out of office in the next election, they truly have lost their minds.

Comments

  1. #1 G-Do
    April 14, 2005

    The reason we had judicial review is because Congress didn’t stop them.

    That is pretty appalling. Judicial review is a bad thing? You have got to be f—ing kidding me.

  2. #2 Melody
    April 14, 2005

    Ed, I have been keenly aware that most of our legislators know little of the Constitution.

    Lord knows, it isn’t taught in public schools!

    My own congressman was stumped when asked where in the Constitution did it say that rights can be taken for the “common good”. He even acted like he was quoting the Constitution when he used the term “common good”! he then corrected himself and said the laws were for the “common welfare”…!

    Of course, the only time “common” is used in the Const. was in the preamble- “common defence”
    The only time “welfare” is used in the Const. is pertaining to taxation in Article 1, Section 8
    The only time “good” is used pertains to the behavior of elected officials in Article 3, section 1.

    It is unfortunate that we have civic illiterates in government… but it is because we have a civic-illiterate citizenry. Up until the 50’s, Washington’s Farewell Address was read by grade school children, and quotes from it were sewn into family quilts. These days, I know poli-sci grads who have never even heard of it.

  3. #3 Flatlander100
    April 14, 2005

    Melody above is on to something important. There is no longer any common fund of information among educated Americans [defined, very loosely, as those who have completed high school]. Time was, one could expect nearly all high school graduates to have read, and, yes, even studied, a core list of civic texts: The Declaration of Independence,Washington’s Farewell Address, the Constitution, Madison’s Tenth Federalist, the Bill of Rights, William Lloyd Garrison’s prospectus for “The Liberator,” Lincoln’s House Divided Speech, his Gettysburg Address, his Second Inaugural,FDR’s “Nothing to Fear but Fear Itself” talk, and so on, with of course additions over time like MLK’s “I Have a Dream” speech. You could, in a 4th of July speech or a campaign address, allude to them and most educated people generally understood what you were alluding to, and the point you were making by doing so.

    Sadly, no more. It comes as a surprise to my Freshman university students that the Constitution does not say “life, liberty and the pursuit of happiness.” They are truly surpised to learn U.S. Senators were not always chosen by popular election. They have no idea that the Bill of Rights is in fact composed of the first ten amendments, or that its guarantees limit government actions, not private ones [ especially regarding “free speech.”] They have apparently never heard of the 9th amendment and they have no idea what it says. They don’t know who said “government of the people, by the people, and for the people shall not perish from the earth” or when or why.
    Which raises the question: how, without at least some common fund of knowledge about American history and, at the very least, its founding and fundamental documents, broadly spread across the electorate, is it possible to have a serious public discussion about rights, liberties, public policy and how they relate to each other in the United States with respect to any particular issue? The answer is, I’m afraid, that it is not possible.
    Which, in turn, explains how Congressmen and state legislators and school board members who haven’t the vaguest notion of what is in the Constitution much less what it means, or of the means by which we, as a nation, decide what it means, can be elected, and re-elected and elevated to positions of great power.

  4. #4 Melody
    April 14, 2005

    Flatlander, let’s add to that the notion that local governments tend to think they have some amount of authority over the people too… and no one challenges this notion. We forget they are the servants…

    Police, for instance, have the right to approach your car with a loaded weapon at their hip, but we risk being killed by that officer if we acted in similar manner.

    No one questions the authority of law enforcement. People do not know they have the right to refuse searches without cause. They are not aware of how road blocks violate our 6th amendment rights.

    It only gets worse when we have a nation of citizens who think we live in a democracy and that the simple majority rules… hence the infamous “Republican Mandate!” war cry after the recent elections.

    Electoral College? Isn’t that a school for politicians???

    The average Joe on the street has no idea what a republican form of governmnt is, and what their duties are as a citizen (this is really obvious by the number of people who avoid jury duty, then have the nerve to complain about the judicial process and crooked judges)

    The buck stops with us! That’s the bottom line.

  5. #5 Matthew
    April 14, 2005

    Melody,

    Perhaps your congressman was referring to the necessary and proper clause?

  6. #6 Grumpy
    April 14, 2005

    “The reason we had a right to privacy is because…”

    …It’s contained in Amendment IX, i.e. unenumerated rights retained by the people. Seems like a no-brainer, but it was a wise thing to include that clause, even if nobody reads it.

  7. #7 NickM
    April 15, 2005

    Don’t forget Article VI of the Constitution, which is pretty clear about religion’s role in government – and under which the Constitution Restoration Act is clearly unconstitutional:

    “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Consitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    Clear and elegant.

  8. #8 Donny
    April 15, 2005

    They even believe Article III authorizes the Congress to strip the Supreme Court of all appellate jurisdiction. The Republican Party is in the grip of a profound radicalism. Democracy cannot survive when all the levers of power are held by a party that refuses to accept anything short of total vanquishment of the opposition.

  9. #9 Mark Paris
    April 15, 2005

    Melody, a small point. The term “welfare” is used a couple of times in the Constitution to, in my somewhat hyperbolic view, make the US a constitutional welfare state: 1)”We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare …”, and 2)”The Congress shall have Power To … provide for the common Defence and general Welfare of the United States…”

    But both you and Flatlander100 are right. There is a discouraging ignorance of the Constitution among the public. It is even more discouraging that it is so common among elected representatives. Why not encourage your local school board to require a civics course if they don’t already?

  10. #10 carpundit
    April 15, 2005

    Ed,

    I know it’s depressing, but I would put good money down betting that fully half of the members of the House of Representatives don’t even know what the Federalist Papers are.

    They certainly haven’t read them.

    CP

  11. #11 carpundit
    April 15, 2005

    Melody,
    I’m just curious: how does a police roadblock violate the Sixth Amendment?
    Thanks,
    CP

  12. #12 Melody
    April 15, 2005

    Matthew, the Necessary and Proper Clause is what he was referring to, but again, he was misusing it.

    Article 1, Section 8, clause 18 refers to commerce only. It was not intended to be used to control the liberty of citizens in their private everyday lives. (and even if it did, it would not be necessary nor proper, because most laws that restrict our liberty do not achive the intended goals… ie road blocks have not decreased the amount of traffic-related deaths one iota… and it is not the job of government to keep me safe from harm.)

    But if the Necessary and Proper Clause is used for crimes, it only applies to situations where it was necessary to make provisions for the federal government to enforce laws against Piracy, treason and counterfeiting.

    Annotations read:
    “Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded.”
    http://caselaw.lp.findlaw.com/data/constitution/article01/44.html

    Since Road Blocks, for instance, rarely achieve the goals of catching a pirate, traitor or counterfeiter, they are not necessary nor proper…

  13. #13 Melody
    April 15, 2005

    Carpundit, My bad…

    Road Blocks violate the 4th Amendment. Illegal searches…

    In United States v. Lopez – Valdez, 178 F.3d 282 (5th Cir. 1999), it was even determined that a cracked tail light is not “probable cause” to search a vehicle.

  14. #14 Melody
    April 15, 2005

    NickM, New York Times has an article today about Frist et al and their upcoming Inquisition.

    “Fliers for the telecast, organized by the Family Research Council and scheduled to originate at a Kentucky megachurch the evening of April 24, call the day “Justice Sunday” and depict a young man holding a Bible in one hand and a gavel in the other. The flier does not name participants, but under the heading “the filibuster against people of faith,” it reads: “The filibuster was once abused to protect racial bias, and it is now being used against people of faith.”
    http://nytimes.com/2005/04/15/politics/15judges.html?hp&ex=1113624000&en=0b42a55582cd9ab5&ei=5094&partner=homepage

    “Heretic! Heretic!”
    I wonder which PAC will be funding the needed supply of Thumb Screws (and I wonder how many Democrats will not float!)…

  15. #15 Matthew
    April 15, 2005

    I have two problems with some of the things you have written on this issue, Ed. First, you falsely quote the Federalist Papers as an authority on how government is ran. The Federalist Papers are not the constitution, and have no authority. You can use them to show intent of the constitution, if you want, but you can’t quote them in place of the constition, because they are just legal arguments.

    Secondly, the problem of talking about original intent is that it’s not true that the courts were clearly meant to have the right of judicial review. It’s not clear because 1) it’s not expressingly written into Article III because 2) the founders didn’t all agree on this issue. The right of judicial review didn’t come into play until Marbury v Madison. Madison, like many other republicans, thought the courts should have the right to review constitutionality, but he also felt they had no greater right to do so than did the other two branches. I think Madison was wrong, and that the courts should exclusively hold this power, but it’s not accurate to say that the constitution was originally intended to divide power this way.

  16. #16 Ed Brayton
    April 15, 2005

    Matthew wrote:

    I have two problems with some of the things you have written on this issue, Ed. First, you falsely quote the Federalist Papers as an authority on how government is ran. The Federalist Papers are not the constitution, and have no authority. You can use them to show intent of the constitution, if you want, but you can’t quote them in place of the constition, because they are just legal arguments.

    But I didn’t quote them “in place of the constitution”, I quoted them to determine how to interpret the constitution. Article III is written in very broad language and could be interpreted to mean many different things. The primary source for determining which interpretation is correct would be the Federalist Papers, where they explained to the people of New York what the provisions in the constitution meant and defended them against arguments to the contrary. I can’t think of a more authoritative source for what Article III intended than Federalist 78, which was written precisely to explain the purpose of that article. Can you?

    Secondly, the problem of talking about original intent is that it’s not true that the courts were clearly meant to have the right of judicial review. It’s not clear because 1) it’s not expressingly written into Article III because 2) the founders didn’t all agree on this issue. The right of judicial review didn’t come into play until Marbury v Madison. Madison, like many other republicans, thought the courts should have the right to review constitutionality, but he also felt they had no greater right to do so than did the other two branches. I think Madison was wrong, and that the courts should exclusively hold this power, but it’s not accurate to say that the constitution was originally intended to divide power this way.

    I’m not aware of any founding father who did not think that Article III gave the courts the power to void unconstitutional legislation. Even the anti-Federalists admitted that it did give the courts that power, which was one of the reasons why they opposed it in the first place. They may have disagreed on whether it was a good idea or not, but they still recognized what the language meant. I could be wrong, perhaps there are some who did not think Article III meant what Hamilton said it meant, but I’m not aware of any that did so, and certainly nothing so authoritative.

  17. #17 Joshua Claybourn
    April 15, 2005

    I’m not aware of any founding father who did not think that Article III gave the courts the power to void unconstitutional legislation.

    Well, there actually were a few. At the 1787 Convention and the state ratifying debates, the framers discussed judicial review, with supporters of the concept outnumbering opponents. According to historian Charles Warren, about four in attendance were clear opponents to judicial review.

    But by the time of Marbury, the principle of judicial review was reasonably well established. Not surprisingly, the judicial review aspect of the Marbury decision received little notice, suggesting that Marshall’s claims with respect to the authority of the courts to assess the constitutionality of legislation was not controversial. Critics of the decision, including Thomas Jefferson, directed their criticism not at the decision’s exercise of judicial review, but rather at the separation of powers implications of the suggestion that the Court might issue a writ of mandamus to a Cabinet official.

  18. #18 Joshua Claybourn
    April 15, 2005

    Well i just read your qualifying sentence, which reads, “They may have disagreed on whether it was a good idea or not, but they still recognized what the language meant.” Indeed, even the four who opposed judicial review seemed to understand what it meant, which is why the opposed it.

    As a side note, I think it’s good to archive all of these conservative quotes. Once they’ve lost control of the legislature and statutes start to turn against them, I imagine we’ll see many of the same argue for more judicial power to overturn and/or oppose the statutes. The quotes will be good reminders (and I suspect the same will be true, from the opposing side, for Dems areguing for more judicial review).

  19. #19 Melody
    April 15, 2005

    Ed, I agree with you that the Federalist Papers are as much a qualifier and confirmation of the intent of Constitutional provions as we can get. The US Code is qualified in the same manner by citing cases where the law’s intent came into question.

    I think it is unrealistic to think that the Constitution (however carefully worded) did not come with an expounded clarification of each provision. In other words, the Constitution alone is too “short and sweet”… The federalist papers serve as the explanatory notes for the Constitution… and I do not hesitate to quote them myself!

  20. #20 Melody
    April 15, 2005

    Matthew, the way I understand our system of government, laws are ultimately made by the people through our legislators.

    If a law is found to be unconstitutional or useless, the people have the right to repeal such laws, and they are not obligated to obey them.

    The people can change or nullify laws through the jury process. When you are sitting on a jury, you not only weigh the evidence given about the case, but also the law itself. If you feel the law is unjust, you can find the defendant not guilty. You can also nullify the law if you find the person guilty of breaking a law but determine that the punishment is unjust.

    I have always believed that judges are obligated to do the same as jurors. First, decide if the law is just. Second determine whether the punishment for breaking the law is just.

    If we take the discretionary powers from judges, we will have tyranny. In Federalist 47, Madison wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

    There are distinct sperarations of power in our government to prevent tyranny. Judges cannot make laws, but they can judge laws. Article III states that Congress can throw out a judge on bad behavior. A judge’s use of his discretionary powers is not “bad behavior”…

  21. #21 Dave S.
    April 16, 2005

    Judicial activism … Ecuador leading the way.

    Here’s a news story published this morning on SwissInfo –

    Ecuador declares state of emergency

    By Carlos Andrade

    QUITO, Ecuador (Reuters) – Ecuadorean President Lucio Gutierrez fired the entire Supreme Court on Friday in an attempt to end a political crisis and declared a state of emergency in the capital Quito to quell protests.

    “The magistrates of the current Supreme Court are declared dismissed,” former army colonel Gutierrez said in a surprise televisionaddress to the nation.

    He also declared the Andean mountain capital in a state of emergency, which restricts rights to assembly and expression.

    But thousands of enraged citizens rushed onto the streets of Quito to defy the emergency and protest, waving flags, bashing pots and calling on Gutierrez to quit. The security forces did not immediately move to disperse them.

    It was the second time Ecuador’s Supreme Court has been fired in four months.

    In December, a short-lived pro-government congressional majority dismissed an earlier court at the behest of Gutierrez, who argued it was biased against him. The opposition accused him of behaving like a dictator and the president’s attempts to end the subsequent congressional deadlock failed.

    Protests grew louder when the new president of the Supreme Court, named by pro-government legislators, threw out corruption charges against a key Gutierrez ally, Abdala Bucaram. This allowed the former president to return from eight years of exile in Panama earlier in April.

    The United States and the United Nations both expressed concern about government interference with the courts and Gutierrez lost his congressional majority, delaying key economic legislation.

    In a bid to end the crisis, Gutierrez offered to set up an independent body to name new judges, in a judicial reform he said should be approved by a referendum. But the opposition rejected the proposal, demanding the immediate dismissal of the Supreme Court.

    A key opposition legislator reacted badly to the latest move, saying Gutierrez was a tyrant.

    “He’s taking us into a dictatorship and we’re going to stop him by supporting demonstrations in Quito,” said Xavier Sandoval, a leading congressmen from the Social Christian Party, Ecuador’s largest.

    The political crisis has reawakened memories of popular unrest that has led to the overthrow of two Ecuadorean presidents since 1997.

    Gutierrez himself served jail time for leading an attempted coup in 2000. He was elected in late 2002 with support from the poor majority but has alienated many supporters by negotiating with the International Monetary Fund and pursuing austere economic policies.

    I especially liked this part, “The United States and the United Nations both expressed concern about government interference with the courts …”

  22. #22 Melody
    April 16, 2005

    Dave, our own people could learn a few things from the Ecuadorans…

    “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?” –Thomas Jefferson

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