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The New York Times has hit a new low with its publication of an op-ed piece calling for us to just chuck the US Constitution. Now, I live in New York and we New Yorkers know that the Times is a ghost of its former self -- a dishonest, agenda-driven extremist rag. In this case, though, I give it props for honesty in finally coming out and saying what some of its key people have been obviously thinking, and implicitly supporting, for years.

http://www.nytimes.com/2012/12/31/opini ... d=all&_r=1&" onclick="window.open(this.href);return false;

On the one hand, this is an outside piece accepted for publication. Theoretically, the Times should have balanced it with a contrary piece.

I'm not sure I like the logic in the piece. First, the guy uses a pattern of violation as justification for dumping it. While that's not exactly a good justification, even more egregious is his failure to specify a substitute. Without a substitute, we're left with anarchy (at least on the federal level), because then there would be no basis for our traditional three branches of government. Heck, the union would in effect be dissolved.

In other areas of this piece, he essentially wants to pick and choose which parts of the Constitution he likes. That doesn't work, either. So a bicameral legislature costs too much? Sorry. It's there as a measure of checks and balances.

My biggest beef with it is that he flat out asserts that there are "evil" provisions in the Constitution, yet he never gets around to telling us just what those are. He merely resorts to whining about conservative power politics.

If he's really that far put out, he should put out a call for a Constitutional Convention. Unless he's just looking to take control by personal coup and rule through personal power. I don't think THAT will fly in this country; neither liberals nor conservatives are going to go for that.

My reply to the author would be that the Constitution is not the problem. Failing to follow it is. If we had always proceeded according to the "originalism" described in the editorial we would not have "fiscal chaos" right now. At least I don't think so. And the reason is that the Federal government would be much smaller and would be doing much less. We wouldn't have a chronic, building problem associated with funding entitlement programs because there wouldn't be any entitlement programs.

Of course we could also, if we wished, stick to "orginalism" and change the Constitution through the amendment process. That's allowed.

The fact that government officials have frequently ignored the Constitution in the past doesn't make it right. And if we are really a government of laws and not men, we should be following it. The point is to have a set of rules and procedures that cannot readily be changed without having broad societal consensus. That, to me, is a good thing. We're in the fix we're in now because people have repeatedly decided that it's OK to ignore the original understanding because "there was a good reason" for it. Really, if the reason for change is good enough and that is so clear, one should be able to develop societal consensus to amend the Constitution in order to make the change. If "men" may ignore the Constitution or "interpret" it to require or prohibit things it clearly does not require or prohibit because those "men" think it's a good idea at the time the idea that we are a government and laws and not of men is a crock.

If he's really that far put out, he should put out a call for a Constitutional Convention.

Yes. It bugs me to see people argue that the Constitution must be a "living document" in the sense of being interpreted by judges in ways that are contrary to the language and/or contrary to the original understanding in order to "keep up with the times" or "correct flaws" in the document. It's not. Also bugs me to see people say that it should just be ignored without even going through the formality of getting judges to be intellectually dishonest. There is a mechanism provided for changing it. It isn't NECESSARY for judges to effectively change it through "interpretation" and such. Judges could just say, "Look this is what it says and this is our best effort to describe how it was understood. If the People don't like that, the People may amend the Constitution."

That's the way it SHOULD work.

The problem with the bogus "living document" is not just that it directly results in tyrrany, it can backfire on those who try to jam through their ideas with it. If a majority of people don't like what they have done, it can always be reversed. At that point, of course, they will object that a reversion is "unconstitutional."

The 4th, 10th and 14th amendments are already inconsequential.

"Progressives"

Very interesting article Joe. I don't get all the hand wringing over it though.

This quote is tough to argue with.

Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

"It's just a goddamn piece of paper." His Dubness

CitadelGrad wrote:The 4th, 10th and 14th amendments are already inconsequential.

kalm wrote:Very interesting article Joe. I don't get all the hand wringing over it though.

This quote is tough to argue with.

Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

You think it's hard to argue with that claim?

Well, first of all, perhaps the writer could identify for us when, in his belief, we have flagrantly disregarded the Constitution -- and then we can discuss this assertion and test it.

I can think of about three cases in which the S.Ct. flagrantly disregarded the Constitution: Plessy v. Ferguson, Griswold v. Ct., and Roe v. Wade. None of those decisions helped us "grow and prosper."

It took nearly 60 years to clean up the judicial mess left by Plessy and, even then, it took maybe another 30 years for Brown v. Bd. of Ed. to eradicate the actual effects of the Plessy decision.

And we are still suffering from the Griswold/Roe mistakes precisely in the manner predicted by Justice Black in his dissent in Griswold: by nationalizing the debate over morality, we have fractured the unity of the nation and divided it geographically based on regional perceptions of what is moral. We don't meet in Washington anymore to attend to the nation's business. We meet in Washington in order to ram our regional morality down the throats of other regions.

The author cites the UK and New Zealand as examples of nations that function without a written constitution. The UK model is based on the supremacy of Acts of Parliament, some of which may have greater force than others (Magna Carta, anyone?) and which need not be internally consistent. There is, strictly speaking, no "unconstitutionality" concept with respect to Acts of Parliament. And there are other "traditions" in the UK -- a monarchy, an established church -- that have no parallel here.

Seidman's article suggests a grand experiment and is the logical extension of the extreme "living constitution" view. But the fact is that we elected in 1787 to have a constitution for our federal system. Abrogation of that document at this late date would have parlous consequences for the USA: there would be no written basis for a national consensus, and no political will to avoid a dictatorship of whatever majority may hold power at the moment.

JoltinJoe wrote:

kalm wrote:Very interesting article Joe. I don't get all the hand wringing over it though.

This quote is tough to argue with.

You think it's hard to argue with that claim?

Well, first of all, perhaps the writer could identify for us when, in his belief, we have flagrantly disregarded the Constitution -- and then we can discuss this assertion and test it.

I can think of about three cases in which the S.Ct. flagrantly disregarded the Constitution: Plessy v. Ferguson, Griswold v. Ct., and Roe v. Wade. None of those decisions helped us "grow and prosper."

It took nearly 60 years to clean up the judicial mess left by Plessy and, even then, it took maybe another 30 years for Brown v. Bd. of Ed. to eradicate the actual effects of the Plessy decision.

And we are still suffering from the Griswold/Roe mistakes precisely in the manner predicted by Justice Black in his dissent in Griswold: by nationalizing the debate over morality, we have fractured the unity of the nation and divided it geographically based on regional perceptions of what is moral. We don't meet in Washington anymore to attend to the nation's business. We meet in Washington in order to ram our regional morality down the throats of other regions.

So you live in a chaotic country under a totalitarian regime?

Relax...it's just an opinion, like yours.

kalm wrote:

JoltinJoe wrote:
You think it's hard to argue with that claim?

Well, first of all, perhaps the writer could identify for us when, in his belief, we have flagrantly disregarded the Constitution -- and then we can discuss this assertion and test it.

I can think of about three cases in which the S.Ct. flagrantly disregarded the Constitution: Plessy v. Ferguson, Griswold v. Ct., and Roe v. Wade. None of those decisions helped us "grow and prosper."

It took nearly 60 years to clean up the judicial mess left by Plessy and, even then, it took maybe another 30 years for Brown v. Bd. of Ed. to eradicate the actual effects of the Plessy decision.

And we are still suffering from the Griswold/Roe mistakes precisely in the manner predicted by Justice Black in his dissent in Griswold: by nationalizing the debate over morality, we have fractured the unity of the nation and divided it geographically based on regional perceptions of what is moral. We don't meet in Washington anymore to attend to the nation's business. We meet in Washington in order to ram our regional morality down the throats of other regions.

So you live in a chaotic country under a totalitarian regime?

Relax...it's just an opinion, like yours.

Totalitarianism and authoritarianism rarely occur overnight. We have been moving in that direction for quite some time. One could even argue that it began with McCullough v. Maryland.

Have you paid any attention to what is contained in the NDAA or Patriot Act? Many law schools now teach that the 10th Amendment is entirely irrelevant, thanks to legislative, judicial and military action.

CitadelGrad wrote:

kalm wrote:

So you live in a chaotic country under a totalitarian regime?

Relax...it's just an opinion, like yours.

Totalitarianism and authoritarianism rarely occur overnight. We have been moving in that direction for quite some time. One could even argue that it began with McCullough v. Maryland.

Have you paid any attention to what is contained in the NDAA or Patriot Act? Many law schools now teach that the 10th Amendment is entirely irrelevant, thanks to legislative, judicial and military action.

Fair point Graddy. Definitely some reasons to be concerned and vigilant.