Reading the Constitution

To being their period as the majority party, House Republicans are planning a public reading of the Constitution to demonstrate their principles.

Will they even bother reading the 4th Amendment? Or will the Republicans just start laughing during that part, remembering how much they love ignoring it?

21st Century vs. 19th Century

Ed Kilgore has an excellent piece on the rise of states rights rhetoric in the South. Kilgore notes how progressives laughed at Texas Governor Rick Perry when he suggested that Texas could secede from the union, but like myself, Kilgore takes this seriously. He also notes that a resurgence in nullification is rising across the South. Oklahoma Governor Brad Henry recently vetoed a states rights statement that passed his state's legislature. South Carolina Governor Mark Sanford is said to be moving toward this position. Naturally, Sarah Palin is as well. At least one serious candidate for the governor of Georgia has already endorsed nullification.

Rick Perry:

"I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state. That is why I am here today to express my unwavering support for efforts all across our country to reaffirm states' rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union."

Nullification based upon a perverse reading of the 10th amendment reached its apogee under John C. Calhoun and South Carolina in the 1820s. But it began with the Kentucky and Virginia Resolutions. While Thomas Jefferson and James Madison claimed that nullifying the Alien and Sedition Acts was constitutional, they were wrong. As horrid as those laws were, the federal government clearly had the constitutional right to preempt the states. And if that wasn't clear in 1798, the many decisions of the Marshall court should have made it that way.

Modern-day nullifiers and secessionists are able to gain significant traction from their connections to Jefferson and Madison. To me, this shows that we need to reexamine how appropriate it is to base modern-day decisions on what people were thinking over 200 years ago. Moreover, if Jefferson and Madison thought one thing on this issue, Washington, Hamilton, and Adams thought quite differently. Nonetheless, when political movements can make connections to the Founding Fathers, it gains them real political capital.

Andrew Jackson put the smackdown on Calhoun during nullification. First, he threatened to hang him. But from a legalistic perspective, Jackson said that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed."

In Kilgore's comments, a reader also offered John Harlan Stone's opinion on the 10th amendment, given in United States v. Darby, 1941. This puts the lie to the idea to nullifiers ideas about the amendment and provides clear precedent for the federal government's right to see its laws enforced.

"Our conclusion is unaffected by the Tenth Amendment which provides: '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'. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end."

The Border Fence and the Constitution

Today, the Times ran this story by Adam Liptak about how the government has ridden roughshod across the Constitution to build the border fence. To their credit, the Times has run a pretty long series of stories now on the awfulness of this idea.

Liptak shows how the government, and especially Michael Chertoff, has basically used the Constitution as toilet paper. By waiving whatever laws get in the way of the fence, Chertoff and Bush are setting the dangerous precedent that the rule of law is irrelevant whenever the government chooses.

In their lawsuit challenging Chertoff waiving environmental law, the Sierra Club and Defenders of Wildlife said

“It is only happenchance that the secretary’s waiver in this case involved laws protecting the environment and historic resources,” the groups told Judge Ellen Segal Huvelle of Federal District Court in Washington. “He could equally have waived the requirements of the Fair Labor Relations Act to halt a strike, or the provisions of the Occupational Safety and Health Act in order to force workers to endure unsafe working conditions.”

Precisely. This is a slippery slope. Guantanamo was the first step, but many Americans ignored it because it was far away and the victims were terrorists or something. But this administration, as seen in the work of John Yoo and others, believes that they can ignore the Constitution whenever they want and they intend on doing so to build this pointless wall.

Of course, this is hardly the first time that Bush has ignored the Constitution. Moreover, it's a reminder of the Constitution's fragility. Any study of U.S. history, particularly racial or labor history, shows that we have a long history of upholding the Constitution only when we find it convenient. Think of Andrew Jackson ignoring the Supreme Court over Cherokee removal. Think of Rutherford Hayes and Grover Cleveland calling out federal troops to suppress strikes. Think of Woodrow Wilson and the first Red Scare. And of course, there's Richard Nixon.

Even presidents who I respect have often not respected the Constitution. Lincoln's suspension of habeus corpus during the Civil War was unfortunate, though perhaps necessary given the situation. And Franklin Roosevelt's issue of Executive Order 8803, creating the Japanese concentration camps, is a sad mark on U.S. history.

This doesn't even get into how local governments, law enforcement, and even the Supreme Court has ignored the Constitution when they don't agree with it. The long-term violation of civil rights of African-Americans is the most notorious example, but the suppression of labor struggles or just people who local communities didn't like has happened throughout U.S. history. Maybe the worst example is the Gilded Age Supreme Court. In 1896, not only did the Court rule in Plessy v. Ferguson, which for all intent and purpose flushed the 14th Amendment down the toilet, it also ruled in Ward v. Race Horse that legal precedents concerning Native American rights to the land were "wholly immaterial" because national glory now demanding white domination of the land. This is nothing more than Supreme Court members codifying their own prejudice.

What is different today is a wider spread belief in civil rights and the sanctity of the Constitution. So there are powerful groups suing the federal government over their disturbing unconstitutionality. But still, most Americans may not care, particularly when the move is so obviously to maintain the nation's whiteness in the guise of anti-terrorism. While the Constitution should be the law in this nation, it has usually operated as an ideal that must be constantly fought for. Too often those on the side of law and civil rights have lost. I'm hardly more optimistic about the outcome of this situation.