Monday, June 27, 2011

Richard Stengel’s Illiterate Reading of the Constitution (And Other Laws) (U...

Richard Stengel’s Illiterate Reading of the Constitution (And Other Laws) (Update: Against All Odds, The Fail Becomes More Epic) (Further Update: Cover Story?)

via Patterico's Pontifications by Aaron Worthing on 6/23/11

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update: See at the end for a big update that will make this whole thing even more scandalous.
Update (II): The fail becomes even worse.  I didn't realize I  was fisking their cover story.

And you have to love the fact that this thing is in their "10th Annual History Issue."  The mind boggles.
The original post follows…
Seriously, this piece in Time Magazine is either utter bullsh-t, or he is literally incapable of reading and understanding the words of the Constitution and other related laws.  I was so stunned to read this drivel in Time Magazine that I then looked up who the hell Richard Stengel is, and apparently he is their Managing Editor!  And by the time you are done reading this post you will be stunned with the cluelessness on display.
So strap yourself in, we're going to have an old fashioned fisking.  And it's a long one, because this piece is one of the most clueless pieces I have ever read on the Constitution or the law generally.
It starts off with the usual liberal claptrap that if the founders were not perfect soothsayers about the future, that this meant that we should just ignore the Constitution:
Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.
It is a facially ridiculous argument.  Yes, for instance, the founders didn't know specifically that Adolf Hitler would rise to become the leader of Germany and plunge the world into war (a second time, no less) and murder millions of innocents (especially Jews).  But they knew there was such a thing as war.  And I find it odd that he asserts that the founders didn't know about the concept of collateral debt, given that Thomas Jefferson endlessly whined about his and indeed the majority of the slave-holding founders were in the same situation (but generally less whiney than Jefferson about the whole thing).  And in fact the existence of the atom has been theorized since Greek times, and verified to a significant extent by chemists in the 17th and 18th centuries.  If you are going to assert that the founders didn't know about certain things, maybe you should check to see whether they actually knew about them.
The aggressive stupidity continues:
What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn't even dream that man could fly, much less use a global-positioning satellite to aim a missile, it's hard to say what he would think.
So once again he is arguing that because the means of carrying out war has changed, that somehow we can't imagine what the founders thought.  The founders didn't know about drones, but General Washington did know what war was and he knew that one nation's military attacking another's was war.  The means by which we would kill each other today is probably wholly beyond his imagination, but so what?  They didn't limit their language to the means of waging war available at the time.
He goes on:
What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress's authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it's difficult to know what he would say.
Well, I can't speak to what James Madison knew of insurance, but it did exist over twenty years before the American Revolution, (as well as many other forms of insurance) and contrary to his suggestion there was such a thing as health care in 1789.  It was primitive by modern standards but there was some hope for recovery for the sick and the injured.  And yet, we know what they considered commerce back then and it didn't include any form of health care or even insurance.
And then of course he has to play the race card:
And what would Thomas Jefferson, a man who owned slaves and is believed to have fathered children with at least one of them, think about a half-white, half-black American President born in Hawaii (a state that did not exist)? Again, hard to say.
Well, actually I am pretty sure that Jefferson would have been appalled.  His statement that all men were created equal meant only that they were born with equal rights.  He did not mean that they were all literally equal in abilities and Jefferson himself was quite convinced of the inferiority of black people.  That is all ugly, yes, and disappointing, but it's the truth.
But we are not required to follow every preference of the founders, but only those actually enacted in the Constitution.  The Constitution only puts a few restrictions on whom can be president and none of them reference the person's race.  Indeed, the Constitution doesn't mention race at all until it is attacking racial discrimination in the Civil War Amendments.
The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion…
There's nothing wrong with that passage, but I want to note that when he talks about the original Constitution, he includes the Bill of Rights.  Which is a perfectly reasonable approach—as I say, the Bill of Rights was ratified in the same constitutional breath as the original Constitution—but I want you to notice that.  It will be significant later.
But then he has to again, ignorantly, play the race card.
but [the founders] also gave us the idea that a black person was three-fifths of a human being
Actually, no, the Constitution didn't say that and they did not think that.  What the Constitution said was that a slave would be counted as three-fifths.  And not every black person in America was a slave, even at the founding.  And don't even get me started about how these half-literate commentators  completely misunderstand the true outrage of the three-fifths clause.  As I explained on my blog a while back:
It is always cited by people as proof that to the framers, a slave was 3/5 of a person.  But ask yourself this: who was clamoring to count them as whole people for voting purposes?  The South was.  That should tell you all you need to know.  The more persons who are counted in the census, the greater their power in the Congress.  And the Southern Planters wanted to see their power increased by using the bodies of the slaves, without giving those slaves the right to vote.  Then, in turn, they would use that increased power to block any measure to end or diminish slavery.  So the slave would be used as tool to ensure the continuation of his or her own bondage….  [T]he outrage of the 3/5 clause isn't that slaves were not counted as whole persons; it was that they were counted at all.
Of course, ideally slavery shouldn't have existed on the date of ratification at all, but I digress.
That kind of drivel about how the Constitution counted black people as only 3/5 of a human being is the kind of claptrap liberals say when they want to pretend they are being transgressive and challenging our assumptions, when in fact he is mindlessly aping what his misinformed colleagues have said, without challenging the assumptions underlying that tired old cliché.
And this is going to be a pattern with him.
He goes on, claiming that the founders also gave us the idea "that women were not allowed to vote."  Really now?  Where in the Constitution, prior to the Nineteenth Amendment, does it say that women are not allowed to vote?  The answer is, it doesn't.  Now I do believe that most state laws—possibly all of them—made it unlawful but the founders were wise and humble men and did intentionally remain silent on many issues.  This was one of them.  Nothing in the Constitution says that a state cannot voluntarily give women the right to vote.  But it also doesn't require any state to give women the right to vote, prior to the ratification of the Nineteenth Amendment.
He then states that the Founders also gave us the idea
that South Dakota should have the same number of Senators as California, which is kind of crazy. And I'm not even going to mention the Electoral College.
But, crazy or not, there was nothing we know now that the founders didn't know back then.  This was the compromise they drew because small states were afraid of being steamrolled by the more populated states, a concern that persists today.  I mean here is the electoral map in 2000, by county:

(Source.) And bear in mind Al Gore did win the popular vote, he just lost in the electoral college.  When you look at that map, you start to understand the wisdom of balancing population and geography in representation and presidential elections.  The danger that this map lays bare is that the great geo-diversity of this nation would be ruled by the concentrated populations living in the cities.  And while they are certainly powerful (Al Gore did almost win, after all), the system we have does almost require politicians to have some rural appeal.  That isn't a bug, it's a feature.
And this next part isn't wrong, but it's significant:
They did not give us income taxes. Or Prohibition. Those came later.
So again, he is clearly differentiating between the first ten amendments, and the remaining amendments, considering the first ten to be as a single piece with the original Constitution—which is a very reasonable view.  Indeed, I agree.
It goes on a bit, but then it gets to a portion that is…  oy, this is bad:
A new focus on the Constitution is at the center of our political stage with the rise of the Tea Party and its almost fanatical focus on the founding document. The new Republican Congress organized a reading of all 7,200 words of an amended version of the Constitution on the House floor to open its first session. As a counterpoint to the rise of constitutional originalists (those who believe the document should be interpreted only as the drafters understood it), liberal legal scholars analyze the text just as closely to find the elasticity they believe the framers intended.
There is so much wrong with this it's hard to know where to begin.  So he contrasts the originalists, who believe that the Constitution should be interpreted as the drafters understood it, with liberal legal scholars who…  interpret it as "they believe the framers intended."  So he pretends to put his finger on the difference between  their views, but in fact misses the point of his own sentence.  According to Stengel, both sides are seeking to follow the Constitution as written, but disagree on what it says.  And that is only the first thing wrong there.
Second, in fact originalism, as he describes it, has fallen out of favor.  What is more popular is the textualism and closely related public meaning approach of the Constitution.  Both place an emphasis not on the secret meaning the founders might have had, but the way the public ratifying the document would have understood it.
Third, in fact most liberal scholars are barely pretending to follow the Constitution as written.  Seriously, you are going to tell me that the Constitution requires each police officer to say a certain script when arresting a person?  Then why, pray tell, wasn't this script in the document?  Indeed, why did it take more than a century to discover this script?  I mean you can't even say this was generally done at the time of the founding.  Likewise, are you going to tell me that the founders of the Constitution believed in a right to have gay sex?  Indeed, Judge Vaughn Walker ruled that gay marriage was required by a protion of the Constitution written by evangelical Christians.
So please, give us all a break.  What this really is, is naked judicial activism.  Or more like it is scantily-clad judicial activism that uses a Constitutional provision here and there as the thinnest fig leaf to pretend that they are faithful to the Constitution because they are not willing to say what they really think: that the Constitution is null and void, and that our true rulers are and should be the men and women in the black robes.  Under "scantily clad judicial activism," the Constitution only restrains adherents when it cannot even provide that fig leaf of legitimacy.
He goes on:
Alexander Hamilton wondered whether Washington should be a king.
No, Hamilton did not.  He wanted the President to be more powerful than he turned out to be, but he did not want a king.
Then finally, he gets something kind of right.  Kind of:
Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: "The Constitution was written explicitly for one purpose — to restrain the federal government." Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states.
And it is important to recognize that the chief purpose of the Constitution being ratified at all was to create a more powerful federal government.  The limitation of Federal power, and the division of power between the branches of government are very significant, too, but to pretend that the Constitution is solely about restraining the Federal Government and specific branches is like pretending the purpose of building a ship is so the anchor can hold it in place.  Anchors and other restraints might be necessary to prevent disaster, but they are not the purpose of the thing.
But there is something a little bit wrong in even that passage.  Do you see it yet?  Well, it will be obvious in a moment but first we run across this incredible passage:
The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.
Which is a stunningly ignorant statement.  Yes, there was a central government prior to the Constitution, under the Articles of Confederation.  It was a very weak central government, but it was nonetheless a central government, and thus one can't say that no central government existed prior to the Constitution.  That is simply factually false.
Seriously, as he wrote this, did he have an editor?  Did he run it by anyone else?  If he did and they didn't say these sorts of things, he should fire them for being irredeemable brown-nosers who wouldn't save their boss from his own embarrassment.  And this piece is an embarrassment.
And we are not done embarrassing him yet, because here comes the howler that highlights to you why he was wrong to say that the founders "did the precise opposite" of limiting the Federal Government:
If the Constitution was intended to limit the federal government, it sure doesn't say so.
Yes, yes, he really said that.  Scroll up, click on the link (if you haven't already) and see for yourself.  And let me put it in a little more context, so you can see I am being fair to him, so you know that, yes, he really says that:
If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the "necessary and proper" clause, which delegates to Congress the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Limited government indeed.
Do I have to tell you how incredibly wrong that is?  He mentioned "freedom of speech, assembly, religion" in the Constitution, toward the beginning of the piece.  Well, what does he think the First Amendment is, if not a restraint on the government?  Did he miss the part where it says "Congress shall make no law…" in the First Amendment?  How about "shall not be infringed" in the Second?  How about "shall not be violated" in the Fourth?  And we can keep this up all the way until the tenth amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I mean I have already shown you that in his mind the Bill of Rights is part of the original Constitution.  But you don't even have to go that far, because it is in the original, unamended Constitution, too.  For instance, Article I, Section 9 is filled with limitations on federal power:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.  [They're talking about the slave trade.]
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another….
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
And there are other scattered limitations on Federal Power, including things like the Treason Clause, which limits what can be considered treason.  And more fundamentally the founders made it extraordinarily clear that even without the Tenth Amendment every power that isn't granted to the federal government is denied.  So every time a federal power is granted, there is an implicit limit to it in terms of the power not granted.
Seriously, everyone involved in that passage finding its way into print is an idiot.  Now you might way, "but Aaron, maybe they aren't stupid.  Maybe they're just lying."  Yes, but if it was a lie, it was a really stupid one. Which means whether it is true or not, it is a stupid statement.  The only question is if they are honestly stupid, or stupid liars.
And folks, we are not even halfway through.  Trudging on:
The framers weren't afraid of a little messiness. Which is another reason we shouldn't be so delicate about changing the Constitution or reinterpreting it. It was written in a spirit of change and revolution and turbulence. It was not written in stone.
Notice of course he equates changing the Constitution—for which there is a process written in the Constitution by which we can do that—and reinterpreting the Constitution.  So earlier on he claimed that liberal legal scholars were urging that the Constitution be interpreted as "they believe the framers intended."  But now the mask is slipping, and what he really means is reinterpreting it because the founders didn't know about Lady Gaga, or something.
And yes, it was not written in stone.  But it was written in ink on paper, and even though the Great Chief Justice had a very expansive view of federal power, he thought the very fact it was written meant that its meaning, including its limits on federal power, did not change and he could not ignore it:
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation…
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society.
In other words, what is the point in writing down a Constitution at all, after being ratified by the states, if it can be simply ignored?
Then having demonstrated continual cluelessness on the Constitution he then decided to take on four large issues: "Libya, Obamacare, the debt ceiling and immigration."  Yeah, we are not even halfway through with his idiocy.
So first comes Libya:
Since the signing of the Constitution in 1787, Congress has declared war exactly five times: the War of 1812, the Mexican War, the Spanish-American War and World Wars I and II. And since 1787, Presidents have put U.S. military forces into action hundreds of times without congressional authorization.
No, we have not only declared war five times.  What he fails to understand is that our Constitution is concerned with substance and not form.  Thus what makes a resolution a "declaration of war" isn't whether it has those words in it, but whether it authorizes the President to use the powers of war.  Because that is all a declaration of war is: permission to use the powers of war against our enemies.
The President cannot start a war.  I am being very precise in my language.  Yes, once a war is started—either by Congressional Declaration or by an act of war committed against the United States, then the President is given broad powers to prosecute that war.  But he cannot start it.
Advocates of Presidential War-making always claim that the President's status as Commander-in-Chief of the military gives him that power, but that is frankly wrong.  Those people seem to think that because he is the commander of the military he can make them do anything, however otherwise unlawful it might be.  But that is a completely unsustainable position.  For instance, he cannot lawfully command the military to kill every Member of Congress as they peaceably assemble and crown him Generalissimo of America.  Everyone understands that that would be exceed his lawful authority.
The better understanding of the Commander-in-Chief role is best explained by one of the founders, when he wrote:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.
And who was that founder who said that?  None other than the one that Stengel accused of wishing that we had a king: Alexander Hamilton.  If Alexander Hamilton says that the president lacks the power to do a thing, then you are beyond reasonable argument on that point.
Moving on, having butchered the Constitution, Stengel demonstrates that he has never read (or at least never comprehended) the War Powers Act either, stating that the law "politely asks for an authorization letter and then gives the President a three-month deadline."  Apparently he is unaware of the fact, that it also states that the president can only introduce our forces into hostilities if 1) Congress authorizes it, or 2) we are attacked. Sigh.
And then, clueless about his cluelessness, he goes on:
But in an age of potential nuclear war, global terrorism and missiles that can be launched in seconds and take only minutes to travel thousands of miles, the President must be able to act quickly. In 1787 it took months to order uniforms and muster troops — and declarations of war were written on parchment with quill pens.
So he fails to understand that the President may act if we are attacked.  Seriously, if the Russians had launched their nukes, then the President could shoot ours too, in self-defense.
It seems clear that when it comes to Libya, Obama did not adhere to the spirit of the War Powers Resolution.
Which implies he has followed the letter, which he has not.
He then quotes the White house's Justification:
The White House argues that the operations "do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops." In short, the Administration is saying, You call this a war? We're not even the lead dog.
But they aren't saying that in the passage he quoted.  In the passage he  quoted, they are pretending they are not doing what they are actually doing, which is in fact bombing the enemy.  They are lying and Stengel has not only failed to comprehend the words of the Constitution and the War Powers Act, but even the Administration's lying justification for ignoring both.
The question is, [sic] Do Americans really want to let Congress have the sole power to commit U.S. forces to action?
Actually, for someone purporting to interpret the Constitution and not to argue policy, that is the wrong question. The right question is to ask whether the Constitution grants the President the authority to start a war.  Again, the mask is slipping…
The law permits the President to act unilaterally, at least for the first 60 to 90 days.
Um, no, it doesn't.
But Congress is trying to have it both ways: it wants to reassert its primacy, but it's not sure whether it really wants to end the action in Libya. If it did, lawmakers have one very clear power that could stop the action overnight: they can defund it.
And for once he touches… not on greatness, but at least competence.  Yes, Congress' behavior here and in other instances in the past has been shameful.  But as I pointed out, given that Congress never funded the war in the first place and this President has a history of ignoring defunding as a weapon of control, I am not sure that will work.  I mean, by all means, Congress, give it a shot.  But I am not feeling particularly confident.
The War Powers Resolution is a check on presidential power, but the President seeks to balance this by, well, ignoring it. That's not unconstitutional; that's how our system works.
Um, no actually, if the President ignores a valid law, it is unconstitutional.
The larger question is whether the War Powers Resolution is constitutional.
No, not really, because it is in fact less exacting that the Constitution itself.  As the President himself said (and he quoted!):
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
And notice that phrase: military attack.  Not "war," not "hostilities," but "military attack."  Is he going to deny that our military is attacking the forces in Libya?  Not even a little bit?
And that is it for Libya.  So next he turns to the debt, arguing that we are not allowed to default on our debt as follows:
There are those in Congress and beyond who suggest that the U.S.'s not raising the debt ceiling and defaulting would be a lesson to a spendthrift government not to borrow more than it can repay. But the idea that we can default on our debt is not only reckless; it's probably unconstitutional. No one is saying the debt is wise and prudent — far from it — but defaulting on it flies in the face of one of the few absolute proscriptions in the Constitution, Section 4 of the 14th Amendment: "The validity of the public debt … shall not be questioned." The idea is that the U.S. shouldn't weasel out of its debts.
Except that no one is questioning the validity of the debt.  We are questioning whether we should continue to pay it—a wholly different matter.  So as usual he is reading into the Constitution what it doesn't actually say.
And against all odds, his analysis becomes dumber:
It does not say that we can't undertake dumb obligations — the Constitution can't prevent bridges to nowhere — but that we need to pay off the public obligations that we do set for ourselves, whether those are Social Security payments to retirees or interest to Chinese bankers.
(emphasis added.)  But in fact Social Security entitlements are not a debt, just a statutorily created benefit that, contrary to what liberals think, can be repealed at any time.  It is no more a binding debt, than Welfare was before we reformed it in the 1990's.
At the same time, there's nothing unconstitutional about the public debt's exceeding the size of the GDP. It's not wise, and we might look like Greece, but it's not unconstitutional.
Um, who is saying it is?  Seriously, I want names and citations.
And there's nothing unconstitutional about Congress's trying to impose cuts in the federal budget to decrease the size of the debt or to bargain for cuts in order to vote to raise the ceiling.
But wait a minute, didn't he just say that social security benefits represented a debt we could not—consistent with the Constitution—repudiate?  So what, in his mind, are the benefits we are allowed to cut without violating his wacky reading of the Constitution?
But if in the end Congress seems intent on allowing the U.S. to default on its debt, the President can assert that that is unconstitutional and take extraordinary measures to avoid it. He can use his Executive power to order the Treasury to produce binding debt instruments that cover all of the U.S.'s obligations around the world. He can sell assets, furlough workers, freeze checks — heck, he could lease Yellowstone Park. And it would all be constitutional.
Um, yeah, except for the debt instruments part, that sounds like a good idea actually.  Although I find it odd that for an article that is trying to drill down to the real truth behind this, and cut the through the B.S., he doesn't note the essential B.S. of the argument, that in order to pay our debts, we have to go deeper into debt.  As I have said repeatedly the argument is simply unreal.
Then, alas, he moves on to Obamacare:
Critics have argued that Obama's health care act takes government power to unprecedented — and unconstitutional — levels. They contend that the government can't compel us to do things, or buy things, simply because we are here. In his ruling declaring the Affordable Care Act unconstitutional, Florida federal District Judge Roger Vinson argued, "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States."
Don't be lulled into a false sense of respect for this man because he made it through a whole paragraph without saying something stupid.  Seriously, don't.
Well, maybe. The government does require us to pay taxes, serve on juries, register for the draft.
Aaaaaaand the stupid idiot is back, apparently not understanding that none of those constitute buying a product.
The government also compels us to buy car insurance (if we want to legally drive our car), which is a product from a private company.
And notice that he says the government, not the Federal Government.  Enough said.  As has been recited a hundred times, under most state constitutions the government is given the general police power, which means that all powers not denied are granted.  But the Federal Government is (generally) not granted the general police power, and therefore that formulation is precisely reversed: all powers not granted are denied.  The only exception to that rule is in the territories, where the Federal Government is granted the general police power.  And notice that the only place where the Federal Government dares to require you to buy auto insurance is…  drum roll please… the territories.
Sorry if that last paragraph seems lifeless, but I have only said it something like twenty times.
George Washington once signed a bill asking Americans to buy a musket and ammunition.
Pursuant to explicitly granted Congressional powers that don't apply here.  And he does understand what the word "ask" means right?
There's nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax — even if we don't like it.
But that's not how it works.  It is not up to us to prove the Constitution prevents the Federal Government from doing this.  It is up to the advocates of a Federal power to prove that the Constitution allows it.  See my discussion above about how the Federal Government does not enjoy the general police power.
No one really disputes Congress's power to regulate interstate commerce, and it's silly to argue that health care — which accounts for 17% of the U.S. economy — doesn't involve interstate commerce.
Actually the founders interpreted the word commerce to exclude the sales of services entirely.  But the issue is not whether you can regulate commerce, but whether you can require a person to engage in commerce.
Supporters of Obamacare note that it's not a mandate but, in effect, a tax, imposed on people who do not buy health insurance.
Except when they passed the law, they pretended it was not a tax, didn't count is a tax, and anticipated no revenue from it.  They didn't even cite the Sixteenth Amendment as giving them the power to impose it.  They have only decided to call it a tax as a legal strategy because they saw that it was unlikely to survive as a mere penalty under the commerce clause power.  But in fact so far, none of the federal courts—including the ones that upheld the law—considered this to be a tax.
But it's hard to argue that not buying health insurance has no interstate economic consequences.
But the Constitution doesn't regulate interstate economic consequences, only interstate commerce.  And sitting on your couch and not buying something is not commerce.
But what happens when that healthy, young uninsured woman goes skiing and tears her anterior cruciate ligament and has to have emergency surgery? She can't afford to pay the full fee, and the hospital absorbs much of the cost. That's basically a tax on everyone who does have health insurance, and it ultimately raises the cost of hospital care and insurance premiums.
He's right, and those laws requiring hospitals to absorb those costs should be abolished.  Certainly they cannot be used to justify a massive intrusion into my personal freedom.
I devoutly believe in Justice Louis Brandeis' famous dissent in the 1928 wiretapping case of Olmstead v. United States, in which he wrote that the Constitution conferred on all of us "the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." Amen. But doing nothing can be a private decision with public consequences.
But by that argument then eating fatty foods or smoking in the confines of your own home has public consequences and therefore the government has the right to tell you to stop smoking and eat your vegetables.  So by his formulation, we will never truly have a right to be let alone.
And don't think that bit about forcing people to eat vegetables is far fetched.  They are already pushing in that direction and you can bet it will accelerate if Obamacare is upheld.  Literally if Obamacare is upheld then Lawrence v. Texas is defunct.  Which is one of the reasons why I don't believe Kennedy will uphold Obamacare—because he likes Lawrence (the case and not the guy).
And then things get really hypocritical for Stengel when suddenly he stands up for interpreting the Constitution without regard to the wisdom of a law's policy.  Yes, really.
The Affordable Care Act may be bad legislation, as some contend, but that doesn't mean it's unconstitutional. There's no law against bad laws. The remedy for bad laws is elections.
It's not that I disagree or even condemn him for saying that, so much as I condemn him for pretending to mean it when clearly he doesn't.  I mean this is the same guy who wrote, on the topic of whether the war in Libya is constitutional that:
The question is, [sic] Do Americans really want to let Congress have the sole power to commit U.S. forces to action?
So clearly his devotion to the principle of following the Constitution is a mercenary interest: to follow the Constitution when it serves other interests and not as a principle in and of itself.
So that is it for Obamacare.  Next up is immigration:
All around the world, there are basically three ways of acquiring citizenship: by birth, by blood or by naturalization. All of them depend on the circumstances of one's birth.
Um, no, naturalization is emphatically not decided by birth but by the conduct of crossing the border from one nation to another and jumping through whatever procedural hoops are necessary to become a citizen.  Sheesh.
And the stupidity continues:
It was the 14th Amendment — one of the post–Civil War Reconstruction amendments — that made it crystal clear that anyone born in the U.S. was a citizen. It was passed for a very specific reason: to establish that former slaves were indeed citizens and entitled to all the rights of citizenship, including voting.
No, it did not grant the right to vote.  For instance, prior to the Fourteenth Amendment there was no question that if you were white, male  and born in the United States (with limited common law exceptions largely codified in the Fourteenth Amendment), you were a citizen.  But you were not entitled to vote until you reached a certain age.  And likewise, white women were citizens but couldn't generally vote either.  Indeed many states imposed property requirements and the like for voting and holding office.
Indeed, if you actually read the Constitution (has he ever, you know, read it? I'm really asking, here), it explicitly allowed states to continue to deny citizens the right to vote.  Section Two of the Fourteenth Amendment imposed a penalty for excluding certain people from the franchise, but it still allowed them to be excluded, and it specifically allowed all women to be excluded without penalty (see here for my surprising speculation on the motivation behind the gender exclusion and an in-depth discussion of what that section means).
And yet still he goes on, claiming that in sending the Fourteenth Amendment to the states Congress
wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War.
Um, the actual emancipation was in the Thirteenth, not the Fourteenth Amendment.  Normally I would just give a person a mulligan assuming that they meant emancipation to mean more than the end of slavery, but…  he has frittered away any presumption of intelligence, honesty and/or comprehension about six thousand words ago.
And again, no right to vote was granted.  As I made clear here the only thing the amendment did in regard to the right to vote is create an incentive to give all men, including black men (who are at least twenty one years old, and so on), the right to vote.
He goes on to argue that yes, even if your mother snuck across the border and only gave birth to you in America because she evaded the law, that you are nonetheless entitled to birthright citizenship.  And that is…  correct…  yeah, it feels weird for me to say that, but yeah, he is right.  If you believe in following the Constitution as written, they are clearly covered by the language of the Citizenship Clause, however idiotic that might seem.  I wrote out my argument on the point, here, but I will only note that I say that despite profound disagreements with that policy.
But that doesn't stop him from saying something stupid on the subject:
It's equally strange to me that a nation that was forged through immigration —
Gee, funny, I thought the original Constitution and the Civil War Amendments were written with the blood of patriots and tyrants…
— and is still formed by immigration — is also a nation that makes it constitutionally impossible for someone who was not physically born here to run for President. (Yes, the framers had their reasons for that, but those reasons have long since vanished.)
Really?  Because presumably the founders were concerned that a person might in fact be an agent loyal to a foreign government, only faking allegiance to the United States until he becomes president only to betray us.  That concern has disappeared?  And he is sure it won't come back?  Because otherwise, it's not correct to say the concerns that drove that clause have vanished.
And notice here he doesn't suggest we should pretend the Constitution doesn't say that, because the Constitution doesn't give him the slightest, most misinterpreted leg to stand on in its language.  He is advocating for a "scantily-clad" disregard of the Constitution, not naked disregard.
And then he goes on to libel Arizona and Georgia:
Arizona and now Georgia have passed laws designed to decrease illegal immigration by making it a crime for illegal immigrants not to carry documentation and by giving the police broad powers to detain anyone suspected of being in the country illegally without such documents.
No, the laws do not say that.  Sigh.
And that is about it for immigration.  Moving on, if you thought he was doing a terrible job on the English language, oh, wait until you see him dealing with Latin:
There is an old Latin phrase, inter arma enim silent leges, which roughly translates as "in time of war, the Constitution is silent." But it's not just in times of war that the Constitution is silent. The Constitution is silent much of the time. And that's a good thing.
Oh Jesus Christ.  First, inter arma enim silent leges does not mention the Constitution at all.  The Romans, who gave us that doctrine, didn't have a written constitution.  If applied here it only applies to the Constitution because it is a law, but it is not singling out the Constitution to be treated differently from other laws.
Second, what they are referring to is their practice of literally suspending every single law and declaring a man a dictator for the duration of a war, a practice that led directly to the downfall of the Roman Republic.  What a great precedent to cite, eh?
Now arguably we do something similar during our wars.  Certainly it's hard to tell the Japanese interned in World War II that FDR didn't become a bit of a dictator.  But that is not something we should be emulating now is it?
And then after all of this, he decides that we shouldn't follow the Constitution after all:
Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.
So first, Stengel, either we should follow the Constitution and are bound to it even when it is unwise, or we shouldn't.  Pick one theory and stick with it, at least for the length of this article.
And in fact for well over two hundred years, the Constitution has been seen as a law.  Take it away for us, John Marshall:
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society.
So as a matter of black letter law, he is wrong:
We can pat ourselves on the back about the past 223 years, but we cannot let the Constitution become an obstacle to the U.S.'s moving into the future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights.
Now we already know what is wrong with saying the Constitution should be disregarded because it is an obstacle to supposedly a sensible health care system, etc.  But notice that he says that it equally should not be an obstacle to civil and political rights.  But in fact in the history of Civil Rights in America, ever since the Civil War, faithfully following the Constitution hasn't been the problem: faithlessness to it has been the issue.  Black people were guaranteed freedom, equal protection under the law, and the right to vote.  And in all of those cases, these were empty words on parchment for nearly a hundred years.  Black people were denied the right to vote using a number of contrivances.  The state imposed inequality under the guise of separate but equal, where the separation was rigidly enforced but not equality.*  And even slavery existed in all but name, abusing vagrancy laws to declare every unemployed black man a criminal and sentencing him to slavery for that crime.**  This was done in contravention of the Constitution, not because of excessive faithfulness to it and it remains a cautionary tale whenever someone says we should disregard the musty old document.
And then at the end he finally starts to say something that is almost smart.
A constitution in and of itself guarantees nothing. Bolshevik Russia had a constitution, as did Nazi Germany. Cuba and Libya have constitutions. A constitution must embody something that is in the hearts of the people…  The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution. The Constitution serves the nation; the nation does not serve the Constitution.
And he is right.  A constitution doesn't enforce itself.  It requires Presidents and Congresspersons to obey it, and Courts to enforce it.  If the people, if the Congress, if the President and even the Supreme Court doesn't believe in the Constitution, the document will not of its own power rise up and protect a person about to be stomped on by the jackboots.  As Fred Korematsu learned in the middle of World War II, if every part of the government, the judiciary and the people want to imprison you without cause or legal justification, the Constitution will not free you all by itself.  It has no ability, except the power to persuade people to obey it.
But even saying something smart, Stengel makes the remainder of his piece dumb, because if his advice was followed repetitions of episodes like the Japanese internment become more likely, not less likely.  He may be impatient with the fact that he would have to convince the American people to amend the Constitution in order to make Obamacare legal, or to force the states to accept gay marriage.  But the trade off when he encourages us to be faithless to the Constitution is that every hard-fought freedom and right gained in the Constitution…
…the right to representative government, freedom of religion, speech, the press, the right to bear arms, due process under the law, then end of slavery, equality under the law, the right to vote without racial or gender-based discrimination…
…all of those rights, and more than I can practically list, are endangered by his approach precisely because he thinks being faithless to the Constitution is a good thing.
And you have to ask yourself this, too.  Is there anything so pressing in the reforms he hopes for that he can't wait for the Constitution to be amended to allow or mandate the policies he prefers?  The answer is no.
But that is a philosophical debate and I don't want to distract from the more basic point.  He literally has no idea what the Constitution actually says.  Either that or he knows and either lied through his teeth or is such a complete bumblef—k when it came to expressing himself that it looked like he didn't know what he was talking about.  He is their Managing Editor, mind you.  He is supposed to know something about the written word.  He is supposed to know that in 1789, even, there was a difference between a slave and a black person.  He is supposed to know that there is a difference between granting the power to make war under two circumstances, and being free to wage war under all circumstances.  He is supposed to know that an amendment that specifically allows a state to deny a group of persons the right to vote, did not grant those persons the right to vote.  And he is supposed to know that the Constitution does in fact restrain the federal government.  These are not complicated and arcane points.  They are obvious on the face of the document he attempted to construe.
The supposed "real" journalists, working for reputable publications—and Time is supposed to be one of them—sniff at mere bloggers because we don't have editors.  Well, where were the great and mighty editors on this?  Where were the checks and balances?  Forget the logical confusion in his opinion (pretending the Constitution should be followed even if unwise one moment and disregarded the next), factually it is the worst article on a legal topic that I have read in as long as I can remember, and should be retracted in its entirety.  Indeed, heads should roll.
Hat tip: Jonah Goldberg.
Update: As promised, how could the incompetence in regard to basic constitutional knowledge get more scandalous?
This is how:
Richard Stengel resigned yesterday as president and chief executive officer of the National Constitution Center after two years on the job to become managing editor of Time magazine.
Stengel had spent the bulk of his career with the newsweekly before coming to the center in 2004. In 20 years at Time, he had served as national editor, culture editor, political writer, political essayist and editor of
(Emphasis added.)  Of course, maybe he left because he sucked at his job, right?  Right?
John C. Bogle, chairman of the center's board of trustees, said that he was saddened by Stengel's decision to leave.
"I don't think there's a job in the United States of America other than this one at Time that would have caused him to leave the National Constitution Center," said Bogle, offering words of praise for Stengel's performance at the center. "He's taken us from being a neophyte institution to an established part of the Philadelphia firmament."
And apparently he is still part of the Constitution center, specifically working for The Peter Jennings Project for Journalists and the Constitution.  Their mission?
Its mission is to help both professional journalists and students interested in journalism understand constitutional issues more deeply.
So he is a part of this center so he can learn, right?  Right?
I think I need an image to capture my true feelings, here:

(Source.) Also, thanks to Sister Toldjah for the linkage and high praise, and ditto with Edited For Bias.  And probably the better hat tip is John J. Pitney, Jr.'s post at NRO, which had a much more pithy takedown of Stengel's POS piece.  And Eric Ames talks about it, too, as does BigFurHat.
Update: Linked by the Daily Caller.
* Recognizing that separate but equal was unconstitutional even if actual equality was provided.   But frankly I don't believe separate was ever actually equal, in even material terms.
** Check the Thirteenth Amendment.  Slavery is not banned for convicted criminals, which gave the bigots the fig leaf they needed to reestablish slavery.
[Posted and authored by Aaron Worthing.]

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