Monday, July 09, 2012

A Funny Thing Happened When I was Reading the New York Times

Do I have to say anything else?  It reminds me of the old one about the retired comedians.  They sat around and, instead of recounting their material in its entirety, they just referred to their jokes by abbreviated titles, and everyone laughed obligingly.  All one has to do for a laugh these days is mention the Old Grey Lady.

But in case that's not enough for you, let me offer this: On the Times' 8 July Opinion Pages, we find, "Revisiting the Constitution," in which a collection of experts advises us how how they would improve on the work of the Founding Fathers.

The page is subtitled "Another stab at the U.S. Constitution." This is an  accurate description of the contents.  With suggestions such as "Do Away With The Electoral College," and "Get Rid Of The Right to Bear Arms," these are means, not to improve the Constitution, but to do violence to its intent, and to move us farther from the nation of free men and women we were intended to be.

This is not surprising, given that some of the contributors don't even seem to know the purpose of our Republic.  Rachel E. Barkow, professor and faculty director at the Center on the Administration of Criminal Law at New York University, tells us "We are a nation dedicated to liberty and equality." No.  Sorry.  I believe you're thinking of someone else.  " Liberté, égalité, fraternité," were the watchwords of the French Revolution.  We went with "Don't Tread on Me."  The Declaration of Independence

reminds us that men are created equal, and refers to "the separate and equal station," of peoples, (nations) but there was nowhere in our founders' minds the idea that this Republic would ensure equality in the results of individuals' pursuits of happiness.

Alexander Keyssar, Stirling professor of history and social policy at Harvard’s Kennedy School, gives short shrift to one of the greatest advantages of the Electoral College when he advises us to "Do Away With" it.  He briefly acknowledges that it prevents heavily populated states from choosing the president at the cost of more rural states, but infers that this is no longer an issue.  I suppose it doesn't seem like a problem when one lives in one of the coastal states, but I'm willing to bet there are quite a lot of people just a few miles inland who would disagree with that assessment.  His bottom line is that, "...no other country in the world has imitated our Electoral College." This, of course, is the backside of the, "but everybody else is doing it," argument, by which one attempts to make the case that, since nobody else is doing it, continuing to be the only ones doing it must place us in the wrong.  As everybody's mother will affirm, neither argument holds water.  Just as jumping off a bridge is not made mandatory by the fact that all one's friends have taken the plunge, refusing to jump is not rendered incorrect by the fact that everyone else is a lemming.  This kind of faulty thinking is why Harvard is as good an automatic punchline as the New York Times.

The most inane contribution comes from Melynda Price, an associate professor at the University of Kentucky College of Law.  Ms Price, who uses the personal pronoun four times in the first four sentences of her piece, eventually stops talking about herself long enough to come up with this gem: "The Constitution would be the only weapon needed unless there was an external enemy," which is her justification for doing away with Americans' right to keep and bear arms.  There is much more to say about Ms Price (The Price is wrong.) but it is low-hanging fruit, and I was designed for greater things.

Jenny S. Martinez, of Stanford Law School, decries the ill-defined status of treaties, and suggests that the Constitution be amended to instruct courts to enforce them upon the states.  This makes sense only if such treaties are already in line with constitutional principles, but many, these days, are not.  One gets the sense from Ms Martinez's piece that she believes treaty ratification should be an end-run around the Constitution, and I could not disagree more strenuously.

Even the Times, it seems, must respond to the force of the market place and occasionally dip its toes in the waters of ration and logic.  In what appears to be a nod to this principle, several contributors veered sharply from the course plotted by Barkow, Keyssar, Price, et al, and came dangerously close to presenting valid arguments.  Others departed altogether from the Times' Reservation, and made good sense.  These, I'm happy to say, offered suggestions that had less to do with changing the Constitution, and more to do with honoring its original intent.

Akhil Reed Amar of Yale University comes from the first of these two groups (the veerers, as opposed to the departers).  While he feels compelled to muddy Constitutional waters with nonsense about "fast approaching a time when those born gay have all the rights of those born straight..." his claim that the Constitution should be amended to allow naturalized citizens to become president is at least a debatable point that does not fly in the face of what America is supposed to be.  (Although if recent events are any indication, I don't think his is a very good idea.)

Among those contributors who departed the reservation altogether, Elizabeth Price Foley used the word, "restore," as opposed to "Do away with," or "Get rid of." She advocates the restoration of federalism or, as those lovable New York Times copy editors spell it, "Federalim." (This has since been corrected.) Foley teaches at Florida International University College of Law and is the author of "The Tea Party: Three Principles," which is why the copy editors probably didn't bother to spell check the headline they assigned to her contribution.  An especially important aspect of her contribution is the notion that federalism is about individual liberty. 

Michael Rappaport, a professor of law at the University of San Diego, writes of the need to amend the process for amending the Constitution so that state legislatures could hold constitutional conventions (as already provided for) that would be limited to debating the amendment topic for which they were convened.  This would allow the amendment process to be initiated outside of Congress, which means topics that Congress has historically refused to consider (term limits, line item veto) could be written into amendments that would be ratified (or not) by the states.  As professor Rappaport explains, this provision already exists, but requires adjustment to prevent a convention from becoming an open forum where everything under the sun is debated, instead of the topic for which the convention was originally intended.

Randy E. Barnett is a professor of legal theory at Georgetown Law Center, who proposes that the Commerce Clause be amended to restore (Again, there's that word I like so much.) "its original meaning..." and take back some of the power that Congress has assumed.  I'm all for it.

Pauline Maier, professor of American history at M.I.T. would amend the First Amendment, to clarify that the right of free speech is to be defended against encroachments by state, as well as by federal governments.   You may recall that it starts out, "Congress shall make no law..." which has been interpreted by courts to mean that, while the feds may not infringe on your "conscience, speech, press, assembly and petition," rights, other levels of government may.  At first glance this has merit, but I don't see how that amendment could be worded without interfering with some legitimate needs of state and local governments.  For instance, local fire marshalls often regulate the number of people who can gather in an enclosed space.  This arguably makes sense, as overcrowded facilities can become death traps in the event of a fire. 

Jamal Greene, professor at Columbia Law School, suggests term limits for federal judges, an idea that I believe has merit, but even if it were implemented today, it would be about two weeks too late.

So I expected silliness regarding the Constitution in the New York Times, and I was not disappointed.  But the funniest thing is that half - five out of the ten- of the opinions presented were not completely stupid, and of those, four were quite sound, in that they adhered, or seemed born of a desire to adhere to, to the Founders' original intent.     



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