Friday, October 05, 2012

Why I Can't Take Libertarians Seriously

If you click here, you will find the following comment:
The Supreme Court may declare that the Earth is flat, but that doesn't make it so.

The Constitution is a fairly simple document. It is understandable to anyone who can read and engage in some research. It is not written in a cryptic code or some long-lost language.
My general approach to the world is simple enough: Theories work as long as they account for as many facts as possible.  Whether it's molecular biology or political theory, it's all well and good to say some stuff that sounds really good, but if there are no actual facts to back up what your theory claims, then it's gotta go.

So, the first sentence is a nonsequitur.

The second is a composition of irrlevancies and straw-arguments.

The Constitution was written in English in 1787.  We live in 2012.  Words meant different things then.  Even simple words.  Shoot, the lower case of the letter "s" looked an awful lot like the lower case letter "f"; there's even an episode of the BBC series The Vicar of Dibley that uses that as the basis for a series of jokes.  Less trivially, we have the Federalist Papers, many of which were written by the Constitution's principle author, James Madison, that go to great length explaining various parts of the Constitution.

All of that is well and good.  We have a document, the Constitution, and some explanatory materials to help sell it to a public that wanted to know how it would work.  That got it ratified.

Then, Congress got in to the act, and the various states, and folks started saying, "Hey!  You can't do that!  It's not in the Constitution!"  Who decides that?  Well, since 1803, when Chief Justice John Marshall said that certain acts by former Pres. John Adams violated the Constitution (even though he declared the suit itself, known by its title, Marbury v. Madison, had been brought without any standing by the plaintiffs, effectively tossing the whole deal away), no one stood up and said, "Hey!  You can't do that!  It's not in the Constitution!"  Most folks, in fact, said, "Hm.  Interesting.  Adams violated the Constitution."

Since then, what the meaning of the Constitution is as applied to specific cases has been left to the Supreme Court of the United States to decide.  When the First Amendment says, "Congress shall make no law . . .", does it really mean that, or can exceptions be made?  Well, it turns out that exceptions can, indeed be made!  Thus we have the Supreme Court upholding the convictions of people speaking out against various and sundry government officials at different times in our history, criminal political sedition, and the legalized outlawing of the CPUSA during the 1950's.

Similarly, for example, local prosecutors have managed to get indictments against Christian Science adherents who refuse medical treatment for their children who subsequently die.  Sikhs, who are required to wear a turban to hold in their very long hair, are also required by law to remove their turbans and wear hard-hats if they work construction.  Native Americans cannot use traditional elements in their worship like peyote because . . . OMG it's a hallucinogen!

Folks who say the things above, that the Constitution is a simple document to read and understand miss the point that it is, in the end, a living, breathing thing.  It gives shape and substance, strength and legitimacy to any and every act the government takes.  How that is applied is a matter, in the end, for the courts, particularly the Supreme Court.  We may not like how the Supreme Court interprets the text of the Constitution; that doesn't mean, however, the Court is ever "wrong" because there is no meaning to the Constitution apart from how it is applied in the real world.  Thus, prior to the mid-1950's, it was provide separate public accommodations based upon race.  Obviously it wasn't "right" in a moral sense; it was, however, Constitutional as interpreted by the Courts in nearly sixty years of Constitutional jurisprudence.

People who complain about the application of this or that clause and say the Court got it right or wrong miss the point; if the Court says, say, the commerce clause doesn't apply to particular activities, then no matter how many liberals scream and shout and stamp their feet, it doesn't apply.  No theory of the government can overcome the reality that the Constitution only means what we as a people and the courts declare it to mean as it is tested in and through our life as a polity.

That's why I can't take Libertarians seriously.  They claim some theory about what the Constitution is, how it works, how it is applied or not applied takes precedence over the long history of actual Constitutional jurisprudence and casuistic application.  The Constitution is a real thing; it has real words the meanings of which are not clear despite any claim to the contrary; if it were, indeed, clear we wouldn't need courts or anything else (this commonsense reality also seems to slip through the keen logic Libertarians pretend to apply) to figure out if something is or is not Constitutional.

All we have is reality.  The history of our country, how we have applied the Constitution, how it has broken down over disagreements concerning the relative merits of state versus federal power, how different issues bring different parts of the Constitution to bear on various aspects of our national life, and how that application has changed over time.

We have all that.  Then we have Libertarians whose Constitution exists . . . in no place of which I know.

Virtual Tin Cup

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