Monday, December 31, 2012

Seidman and Krugman: Voices of Reason

Two stellar pieces appeared on the same page of today's New York Times: Paul Krugman addresses the problem of trying to sound balanced when the situation is unbalanced; Louis Michael Seidman, a professor of constitution law at Georgetown, addresses the issue of being hidebound by the Constitution.

Speaking of the efforts by the CEO of Starbucks to encourage "bipartisanship" by having employees write "Come together" on coffee cups,  Mr. Krugman says, "It's true that elected politicians have been unable to 'come together and compromise.' But saying that in generic form, and implying a symmetry between Republicans and Democrats, isn't just misleading, it's actively harmful."

He then details the huge, and likely hurtful concessions made by Mr. Obama, rejected by the Republicans. "In return, the Republicans have offered essentially nothing. Oh, they say they're willing to increase revenue by closing loopholes--but they've refused to specify a single loophole they're willing to close. So if there's a breakdown in negotiations, the blame rests entirely with one side of the political divide..Given that reality, think about the effect when people like Mr. Schultz respond by blaming both sides equally."

This is the point I was trying to make about Mr. Douthat's article, yesterday. He is another one of those kumbya types trying to smooth over the nasty reality of Republican intransigence.

"What they're actually doing is rewarding intransigence and extremism," Krugman observes, because they are refusing to place the blame where it belongs.

Professor Seidman argues in a provocatively titled article, "Let's Give Up on the Constitution," that the words on parchment have outlived their usefulness, and more harm than good now accrues from any belief in this document as a sacred text. 

He outlines a long history of Presidents and government officials on a variety of levels violating the Constitution, from Jefferson's Louisiana Purchase, to Lincoln's Emancipation Proclamation, to decisions like Brown v Board of Education (outlawing segregated schools), to Miranda v Arizona (requiring "Miranda rights" be recited to citizens arrested)  to Roe v Wade (legalizing abortion)  to Bush v Gore (handing the election to Bush before a recount).  For many of these decisions, the immediate need for going beyond what was written in that document or frankly defying it (since slavery was accepted in the Constitution) was thought paramount to the national good. In the last case, it was simply convenient for the "orginalists" to ignore the Constitution when it suited their political convictions.

Today, with Antonin Scalia the real power on the Supreme Court, espousing "originalism" we have a recipe for disaster. 

"Our obsession with the Constitution has saddled us with a dysfunctional politcal system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what  James Madison might have done 225 years ago."

It is the legal equivalent of, "Just ask what Jesus would do."

All thinking ceases, in the face of this level of ethical analysis.

Seidman concedes, "This is not to say that we should disobey all constitutional commands...What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran soley on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief."

He goes on to address the fears that many have raised about ensuing chaos if we change our approach to the Supreme Court or the Constitution: "The deep-seated fear that such disobedience would unravel our social fabric is mere superstition...The country has successfully survived numerous examples of constitutional infidelity." 

He points to Britain which has no constitution but holds together by traditions, accepted modes of procedure and engaged citizens. 

It is strange, Mad Dog observes, that Britain, which has a state religion does not try to justify its policy and governmental decision by reference to a "Good Book" or sacred scripture, but the United States has a Supreme Court which makes every decision thumping the good book of the Constitution, insisting "All the answers are in here. Every question is answered in the Good Book."

"What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are all one nation and must work out  our differences, " Seidman avers.

That is actually a scary thought, and I hope Professor Seidman is wrong about that, because if he is correct, just look at the Tea Party Republicans who currently hold sway in the House of Representatives. These are the people who believe 47% of our nation is compromised of parasites, freeloaders who want to suck the blood out of the the hard working 53% and most especially the upper 1%. These are not people who think of our nation as a whole people, but who believe the nation is a system of castes, and they believe themselves superior,  in the ruling caste, who live in walled communities, who keep their  children separate and apart,  free of despoliation by the hoi polloi; these are the people  who vacation among people of their own station and who believe other Americans are the enemy. 

I think a less radical approach might work, and I've spelled it out in terms of changing the composition of the Supreme Court with the president appointing a new justice every two years, only the 9 most recent justices voting. At least that way we could assure the Constitution is seen as a living document, not a holy book.

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