Monday, March 15, 2010

Of Tea Parties and Original Intent: Everyone Has An Opinion On The Constitution...But Some Are Not as Equal as Others

Sometimes one has to pick a scab.

A question to my original intent, strict constructionist readers: Is the extension of "rights" to corporations as "people" under the Equal Protection Clause a perversion of the sacred cow that is "original intent?" Or is it in keeping with the framers' belief that corporations should have the protections afforded to people--in this case, special categories of protected persons?

In short: is that document a magical treatise to be read as the framers originally "intended" (warts and all) or is it more a set of guidelines and principles that are malleable and elastic?

The NY Times Week in Review section published a great complement to that perennial argument over the weekend that is worth reading in its entirety. Of note in the Times' piece is the following finding from Quinnipiac College's highly respected public opinion arm:

Surveys conducted by Quinnipiac University indicate that some 40 percent of Americans say the Supreme Court should employ originalism in interpreting the Constitution; slightly more say the court should take account of changing conditions. “You might think that questions about constitutional theory are an elite-driven idea,” Professor Persily said, “but people have opinions about this.”

A new study from Professor Persily and two colleagues, Jamal Greene and Stephen Ansolabehere, explored the political and cultural values of those who identified themselves as originalists. Such people “appear more likely than non-originalists to be white, male, older, less educated, Southern and religious,” the study found.

“They are less likely to favor abortion rights, affirmative action and marriage rights for same-sex couples, and more likely to favor torture and military detention of terrorism suspects and the death penalty. They are more likely to express morally traditionalist, hierarchical and libertarian cultural values.” The mechanisms for translating such popular understanding into actual constitutional law are varied. Over time, the Supreme Court’s personnel shifts with new appointments, and so may its thinking. Public opinion, many scholars say, cannot help but affect which cases the court accepts and how it decides them.

What has always struck me about The Constitution is how it can be used for purposes both good and evil. One side can use it to support Secession and state's rights. Another can argue for expanded civil liberties using the same text. One can use the Constitution to argue that it is okay to torture people and that The President can "disappear" citizens on a whim, or that the Constitution supports limiting the rights of citizens to marry whom they choose. Others using the same document, can counter that rights should be respected in all venues, at all times, and ought not be subject to the popular will.

But as Redd Foxx famously mirrored in his "Wash Your Ass" routine, everyone has an opinion...

By implication, not all opinions are created equal, nor should they be given the same weight in our public discourse or law making. Ultimately, the juvenile approach offered by the "what would the framers do crowd"--where they try to magically divine what the framers would say in 2010 based on their readings of a document some 200 plus years old--speaks to the political genius of the Right and the Tea Party crowd on this and other issues.

How? The Right in its various forms have been able to craft a narrative in which they "own" The Constitution. Just as the Christian Right and the GOP were able to monopolize Jesus as a symbol for their political agenda (an irony if there ever was one), folks on the Left, progressives, and pragmatists have lost The Constitution. This surrender has been enabled by the following dynamic: research in cognitive psychology has shown that conservatives are more likely to respond to simple moral appeals, possess a binary worldview that orients itself around "evil doers" and "good guys," and are motivated by a fear of change in how they make political choices.

The sum effect of these factors is that the Right has a profound advantage in how it crafts popular political narratives around the meaning of The Constitution--with their dominance in talk radio and an exclusive network in Fox News--and how they disseminate them. Moreover, it is difficult to engage the Right and its populist wing on this issue (or any other) because in keeping with the meme that all opinions are created equal (regardless of fact, documentation, or scholarly consensus), there is a deep hostility towards expertise and/or expert knowledge.

Consequently, the truth is what the Right wing populist "intellectual," blogosphere, talking heads say it is on any given day because the know-nothing foot soldiers feel it to be true, and the phrases "I think," "I believe," or "I feel" are held as empirical realities. Thus, these "truths" are immune from rebuttal or critical engagement by conventional standards. Most pointedly in the rhetoric of the moment, those "experts" are cast out as "elitists" or "liberals" who dare to insert fact, history, or precedent into our political discourse. How arrogant those experts must appear with all their fancy book learning and reading when viewed through the lens of the Tea Party populists.

The question then becomes, how do reasonable folk reclaim this terrain? What does the reality based community do in the face of the Right wing populist assault on an enlightened public discourse? More generally, who owns The Constitution? And which set of values would see its best intent served most honorably and in the service of the common good?


Anonymous said...

Great post. My favorite is the "know-nothings." BRILLIANTLY apt use of the concept. I've little ability to craft a suggested solution. Anti-intellectualism by the "superior" race? Go figure. At least a few of the "original" racists read.

Werner Herzog's Bear said...

Thanks for bringing your expertise to this issue. A lot of people in my family of the Tea Party persuasion now consider themselves experts on the Constitution even though they have absolutely zero understanding of its creation or legal history in America.

Not so long ago, the Left was able to use The Constitution to critique the violations of the Bush Administration (warrantless wiretapping, "faith based" initiatives, torture, military tribunals, secret prisons). Sadly, because the current administration has only partially disowned these abuses, it has taken some of our moral high ground away.

Unknown said...

Thanks. I'm currently teaching a US Constitutional law course at the college freshmen level.

I'd like to add this as our weekly on-line discussion topic, but the article is too long (I usually linke to a one or two page article to stimulate conversation), and there's no way a white instructor can get away with posting a link to 'respectable negroes.'

chaunceydevega said...

@Anon--thanks for the complement.

@Buck, you should be brave. by all means excise a bit of the post and call the site something else...or even take our mission statement for explanation. it would be interesting to hear what your peers say about the essay.

@werner--this madness is spreading like a disease from the top down and bottom up. we do have lots to talk about though so i will be calling.

Cobb said...

I'm struck by the oxymoronic idea of an entrepreneurial college professor, and in that frame of mind I think I know how it is that this matter becomes so perplexing. You see, by profession I'm rather in the business of the economics of supporting regimes of truth. That is to say for the past 20 some-odd years, I have been part of the massive engineering effort that is rendering all sorts of immobile literature moot by digitizing it and distributing it in ways heretofore impossible.

So I am struck by the sort of terror that must attend the prospect of the declining significance of the professoriate. People who sit amongst the same small organizations while herding undergraduates through to see what of the most refined facts stick in their heads is an unusual position - one that is threatened. But there is a very direct parallel to that and religion from the perspective of an information economy. Facts don't change, nor does faith. Except they both do, slowly. The point of both education and indoctrination is the same - take a fixed quality of knowlege and impart it.

The hedge on this perception is the Friere school, but I think that gets all relativist. I mean it's not really education or religion without some primary aspect of command and control, neh?

In the equation of the valuation of information are factors of distribution, amenability, authority, quality, usability, inspiration. One must ask, what can I do with this information? How much effort should I put into learning it? How long will it be valuable? How long has it been valuable? How much should I dedicate myself to it?

But I think the most important question is whether or not it is true, and I mean in the way that mathematics can be true. Which is to say that once the information is out there to be known, how well is it policed to be true vs how self-evidently true is it?

I think the Constitution contains a goodly fraction of self-evident truths, but the politics around the Constitution contain a high percentage of policed truth. IE what matters about the Constitution requires a higher level of discipline than the currency of what people *think* about the Constitution. And we are fortunate to have a high standard of *energy* required to manipulate the document itself. Whereas any idiot with a blog can spout off about what they think about the Constitution, it takes a hell of a lot more qualification to render legal opinions with the proper citations, etc.

So I am a great deal more likely to give credibility to those Justices who have spoken at length about the Constitution and to worry myself about any crab on the street's opinion, and I think it most proper to keep it that way by structure.

Keep the Constitution educational and religious. Don't let the entropy in. If that's your position, as it is mine, then why concern yourself with what the mob thinks? Ah. It must be the question of amenability.

Cobb said...

If you are fundamentally disposed to believe in the wisdom of crowds, or that in some historicist way that Americans will always get smarter, then you would probably want to not miss an opportunity for these mobs to incrementally change the Constitution for the better. Better is better than good, right? Excellent is better than very good, right?

If I could be convinced that there are no Dark Ages in our future, then I'd open the doors to the pitch and moment. But I don't. But on the other side of this, the professoriate, like the scribes and Pharisees, must surely understand what is at risk if we are to spend all of our *energy* in the attempts to education from a narrow set of knowledge and slowly changing facts. The masses get bored, fed up and frustrated - especially if the facts are not easy to come by.

Well, in my book, that's a plus. Let them get mad. Let them storm away in anger, and let the weakness of their ignorance undermine the passion of their perverse petulance. Let the enemies of the Constitution's religious and educational authority become foolish enemies of the State. Then send them to Greenland and let them hang out with Emmanuel Goldstein.

The Constitution serves the power of the State. Let the State be small and let the Constitution be fixed. Let the people find happiness on their own and let the bashers be bashed back.

Meanwhile, guys like me will engineer another Twitterverse for the amusement and delight of the literate zombie masses, and laugh our way to the bank. Don't worry, we won't let Tweets become votes in the Electoral College.

chaunceydevega said...

@Cobb. Thanks for chiming in. I agree and disagree...again the world must be ending.

But, you said:

1. You work in "the economics of supporting regimes of truth." so the technocrats shall inherit the Earth? You are keepers of the light? Think about that and its implications...who holds your collars? To whom do you owe allegiance? Are they interested in truth or profit?

2. I am all for autodidactism. Folks get to participate in lots of that in jail. And we see what half cooked "knowledge" they come up with. So there is no room for folks to teach, to guide, to mentor, to have mastered information and to impart their learning (and what they have learned not to do, i.e. their mistakes) to students? Again, think about that, and the implications of that when taken to the logical end. So you taught yourself Cobb? You didn't benefit in anyway from expert training?

3. No, I don't believe in the wisdom of crowds (with some qualifiers...they can guess the number of jelly beans in a jar but beyond that it is suspect for me--not the fact that it occurs, but the value added of the occurrence for statecraft and society).

And don't forget that I am an unapologetic believer in/and am in agreement with the Federalists' worries about the rabble--on the Right and the Left.

I am honest enough to say so. Will you join me Cobb? Can we together condemn the rabble of the Tea Parties and GOP?


Cobb said...

@CD. No the technocrats will not and should not inherit the earth, but they will be the ones who create the virtual esparanto that will radically change the world; what will we do with pan-literacy?

The teabaggers are basically nothing more than a mob yelling throw the bums out. With the approval rating of Congress below 30% you're sure to find such folks. There is no charter - they are not raising money like Brookings or Club For Growth - there's no building - nothing for their progeny to inherit. They will be extinct by the midterms, I think. They're just people, and 'throw the bums out' is something I can get behind most of the time.

Bill the Lizard said...

Cobb wrote: "That is to say for the past 20 some-odd years, I have been part of the massive engineering effort that is rendering all sorts of immobile literature moot by digitizing it and distributing it in ways heretofore impossible."

Having worked at a Rare Book library for 10 years, I don't agree that digitization is going to make original material obsolete.

Digitization, as it's currently being implemented, will complement private and public library collections, not replace.

Cobb wrote: "There is no charter - they are not raising money like Brookings or Club For Growth - there's no building - nothing for their progeny to inherit. They will be extinct by the midterms, I think. They're just people, and 'throw the bums out' is something I can get behind most of the time."

While the Tea Party may not (as of yet) have a clear cut leadership or an organized platform, I don't think they'll go extinct anytime soon:

All this may be "astroturf" (i.e. fake grass roots), but this is the movement's future. The Tea Party movement is going to shift it's focus in the coming months and become more organized and more vocal.

And when that happens, you'll see Reagan's "Big Tent" Policy for the GOP start to break down, resulting in only two possible outcomes:

1.) The Republican Party becomes more radicalized and more conservative in an attempt to re-absorb the Tea Party movement.

2.) The Republican Party will fracture in "civl war" with moderates going one way and conservatives going another. Remember, the Tea Party platform already says that the Democrats are big-government socialists and that the main-line Republicans are enablers.

Regardless, I think it's extremely important to remember and recognize the Tea Party's underlying racism. They're not just "throw the bums out" type of people:

This concerns me a great deal.

CNu said...

well-funded and racist through-and-through....,

Cobb said...

I was at lunch howling, and AT&T couldn't get me through. My little point was that the Tea Party is unlikely to give us anyone as nutty a candidate as Ron Paul. And I sniffed him out years ago. Paul was there before the Tea Party and the Tea Party does not belong to Paul.

Now my nickel says, when I have time to peruse all these links to the 'racists' in the Tea Party movement, that I won't find anything that rises to the level of the criminal assault on Kenneth Gladney.

Lady Zora, Chauncey DeVega, and Gordon Gartrelle said...

Yikes Cobb. Just when we are making progress, we take 2 steps back.

Why do you feel a need to defend these people, and "victims" such as Gladney? One can say whatever happened to that token was unfortunate--the story is still suspicious as he is a posterchild black fetish conservative totem. And one can also say there is something really troubling about the Tea Party John Birchers.

Those folks wouldn't pee on you to put you out if you were on fire Cobb, part of that is because you are Black (however deep your sense of linked fate may be), so why defend their nonsense? just to be contrary and get a reaction?


Cobb said...

Oh sorry. I forgot that when a black man gets beat down and called a nigger and then the DA waters down the charges against the perpetrators, it's OK. This conversation is ridiculous.

chaunceydevega said...

Who said it was okay?

I said that what happened to Gladney could very well be a crime. One must note however that he was called a "nigger" by another black person (so sympathetic witnesses claim) and Gladney looked suspiciously fine in all of videos shown of him afterwards. Suddenly, he appears days later in a wheel chair and is getting kissed on his head by white Tea baggers--thus my comment that he is a magical negro totem who washes away their sins.

To boot, it would fit the Right Wing populist M.O. to have a brown face as a victim of "thugs." Why? it neuters charges of racism from the dimwitted masses (oh they have some colored folk in their midst and as their poster children they can't possibly be a bunch of racists).

You seem to have a pretty good bs detector Cobb--at least selectively--doesn't the whole Gladney thing stink to you? Why is the DA, after presumably doing an investigation, lessening the charges? For some grand political cover-up? Or do you drop your critical lens because the Right wing mediasphere claims a great "crime" has occurred?

Returning to the central point, whatever happened to him is separate and apart from any claim about the tea party's racial politics.