Monday, May 16, 2011

Why I Prefer Really Existing Things To Principles

With his quadrennial pledge drive disguised as a Presidential run, Ron Paul is getting pounded by folks who, last time around, gave him a bit of a pass because he opposed the Iraq War and occupation. For some reason - call it political expediency that makes strange bedfellows - liberals and progressives were all misty-eyed over Ron Paul's denunciations of Bush's wars, said mist clouding their vision when it came to other, less attractive (or intelligent) aspects of his political philosophy. This time around, however, the gloves are off, and while liberals and progressives tend not to have iron fists inside those velvet gloves, they seem to be making up for that by making it plain that Ron Paul, whatever tiny virtues he may have, is nuts.

I am not a fan of libertarianism in general, and Ron Paul, the most mainstream of the breed, provides ample reasons to show why. Color me unimpressed, for example, by his discussion of why he would have not voted for the Civil Rights Act. I realize this is a 57-year-old piece of legislation, yet it continues to crop up in discussions because, as a commenter in the above-link discussion at Crooked Timber points out, conservatives continue to desire its disappearance. They do not like it, in total or its various parts (college sports fans bewail Title IX, for example, so the law seems to tick off just about everyone). There is evidence enough that, rather than any principled Constitutional stand, Paul's dislike of the CRA is rooted far more in his racism. Even Barry Goldwater's "principled opposition" to CRA led him to dabble in political alliances with the ugliest parts of white supremacist southerners during the 1964 Presidential election. While many may cry, "Old news! Ancient history!", it isn't we who brings this stuff up; it is they, and they need to make clear why it is we should ignore their racism when they claim principle.

This is all by way of an aside. Paul carried on concerning the alleged unconstitutionality of various federal programs - something one reads all the time by conservatives on the internet - and it was pointed out to him that, in fact, some of the things he was claiming were not constitutional were found to be so by the Supreme Court. His response?
[CHRIS] WALLACE: Congressman, it’s not just a liberal view. It was the decision of the Supreme Court in 1937 when they said that Social Security was constitutional under Article I, Section 8 of the Constitution.

PAUL: And the Constitution and the courts said slavery was legal to, and we had to reverse that.
Unraveling what passes for thought here is difficult. Were I in Christ Wallace's chair, I might have taken a moment to point out that is irrelevant. He is not claiming that a federal program continues to exist after having been found to be unconstitutional. Rather, he is claiming that a federal program, found to be wholly constitutional by the United States Supreme Court, nevertheless is unconstitutional. He further is claiming that it is a misinterpretation of the commerce clause that is at fault. Yet, this reading has a long and illustrious history in Supreme Court constitutional jurisprudence. What, specifically about these cases is that with which he disagrees? Is he aware, for example, that it is the commerce clause, rather than the "general welfare clause" that is the controlling phrase in the Constitution? This isn't "taught in our schools" except as how the Supreme Court understands the Constitution. Unless, of course, he means taught in our law schools, in which case, sure it's taught so that lawyers, you know, understand the law.

In other words, Paul is demonstrating an interesting factoid about libertarians - almost pure ignorance about the Constitution, constitutional law, even law in general. I have yet to read one who has any real familiarity with the real constitution as it actually functions and is interpreted. I have yet to read one who hasn't declared, absent any evidence whatsoever, that this or that or the other thing is unconstitutional, usually asking the rhetorical, "Where in the constitution does it say to do 'X'"? The whole point in particular of the first Article of the Constitution is make clear that there is a legislative body, some basic structural rules, and certain definitions of its function and limitations. Beyond that, there is a wide space for Congress to do all sorts of things.

The question of the Constitutionality of this or that particular law or program is not a theoretical or academic exercise. It is, rather, a reference to an operative document and an existent body of case law. Those who insist upon a libertarian interpretation are, at the very least, in need of a basic acquaintance with that body of law and why it errs. I am unimpressed with any alleged philosophical consistency that might lead Ron Paul to claim Social Security is unconstitutional if he cannot even acknowledge that the Supreme Court has declared the opposite and why that is so. Since that is the case, and since he believes the interpretation is wrong, he could at the very least acknowledge that the reason it is "taught in our schools" is because it is, in fact, the controlling interpretation of the Constitution.

Libertarians toss around the phrase "unconstitutional" far too often to impress me; I tried to find the comment on another site where one actually used the phrase "sovereign property", to which I replied I hoped he would invite me to a court when he used that phrase so I could see the expression on the judge's face. It isn't enough to be attached to a particular political philosophy. One needs, I would think, to be aware that it opposes actually existing legal and political practice, and as such needs more than just nay-saying and the appearance of adherence to principle to appear impressive.

Virtual Tin Cup

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