Pound the Table and Scream

There’s an axiom for trial lawyers – if the facts are working against you, pound the table and scream the law; if the law’s working against you, pound the table and scream the facts; if both are working against you, just pound the table and scream. That’s what I got out of Richard Stengal’s Time Magazine article One Document, Under Siege. In it[1], he posits the liberal argument for the Constitution being more of a guideline than a rule.

Mr Stengal begins with the familiar stanza: “Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.” This is the main thrust of liberal attacks on the credibility of the Constitution – it’s old! It was written by a bunch of rich white guys who never heard of Lady Gaga[2]! What’d they know?!

I have no idea what any of Mr Stengal’s examples has to do with the Constitution.

He offers a general soliloquy about some of our modern situations by asking what the Framers would think about them, narrowing the discussion to focus on four such issues: our participation in Libya’s civil war; the debt ceiling; the Affordable Care Act; and immigration. Before espousing on those subjects, however, he mentions in passing the “crazy” idea of each state having equal representation (despite vast population differences) in the Senate. I wish Mr Stengal had made this one of his more detailed arguments, as it, in absentia of explanation, leaves only a rather astonishing ignorance of our bicameral system of federalism, and why the Framers established it.

Using Libya as exemplar of the unconstitutionality of the War Powers Resolution, I tend to agree with him (and all US presidents from Nixon to GW Bush) that the Resolution does usurp Congress’s power to commit the nation to war and to sue for peace. There are presidential tools to deploy weapons-hot forces in an actual emergency (e.g., impending or immanent attack), but the run-up to situations like the ones Mr Stengal mentions (Libya in 1986, Panama in 1989, Somalia in 1992, Bosnia in 1995 and Kosovo in 1999) included ample time for the president to acquire a congressional declaration ante bellum. Made more complicated by being a UN undertaking, our current involvement in Libya is no different – in fact there was an inordinate amount of time before our entry into combat operations to stretch credulity qualifying it as an “emergency.”

The furor swirling around the debt ceiling is hopelessly clouded by disingenuousness. The (multiple) “drop-dead-lines” are arbitrarily set by the Treasury Department; inflowing revenues comprise over 70% of everything the Democrats want to spend, debt service being ~6% of that; and Mr Stengal is correct in saying that actually defaulting on debt held by the United States is forbidden by the Constitution (14th Amendment, Section 4). What would have to happen, should the debt ceiling be frozen, is that the Executive would have to pick and choose what programs to fund at what levels in order to maintain interest payments and Treasury Bond redemptions. The rest is all politics.

The constitutional question regarding the Affordable Care Act is the mandate justified by the Commerce Clause, and that is being adjudicated as I write. The Sixth District in Cincinnati, by a three-judge panel, just upheld the mandate 2-1, saying “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in healthcare delivery and health insurance.” Well yeah, but “essential” doesn’t necessarily mean “constitutional.” Mr Stengal goes on to say that “[the mandate is] not universal; people who are on Medicare and Medicaid, for example, don’t need that coverage.” Huh? Medicaid is the program all those “who like their coverage” are being pushed into by the Affordable Care Act – Medicare and Medicaid are, themselves, insurance coverages, so no, they won’t be compelled to buy private policies. Specious argument.

On immigration, Mr Stengal proffers an excellent explanation of the 14th Amendment’s anchor-baby provision and its post-slavery rationale. While I agree that it has outlived its usefulness to assure slaves that they and their progeny are unequivocally citizens, I don’t agree with him that jus soli should be waived as a qualification for a candidate for the presidency.

So after an opening hostile to the Constitution as written, Mr Stengal’s detailed discussion seems to uphold the Constitution’s provisions he chose to highlight, the anchor-baby provision excepted. The article concludes by continuing the opening’s hostility toward assuming the Authors meant what they wrote. He failed to make an actual argument that discredits the Constitution’s ability to deal with any of the contemporary issues claiming to require interpretive agility. Mr Stengal obviously has a problem with people questioning the legal pedigree of the Affordable Care Act’s mandate, but that is being adjudicated. He notes that, “a constitution in and of itself guarantees nothing. Bolshevik Russia had a constitution, as did Nazi Germany. Cuba and Libya have constitutions,” all of which is true, but he fails to mention that all of those are strong executives of the sort he argues we need. Those societies are of the type from which our Constitution, as written, differentiates us. The balance of the branches – each having oversight of the others – all but renders such disregard of a constitution impossible. We’re living an example of that process as some 26 cases work their way through the courts, serving as a check on the legislature (an executive check – signing or vetoing – already having taken place). Liberals may well find the Constitution inconvenient, but I see nothing here that transgresses beyond that.


[1] Richard Stengal, One Document, Under Siege, in Time Magazine, June 23 2011.

[2] But they were conversant with Aristotle, Plato, Thomas Aquinas, Thomas Hobbes, John Locke and Adam Smith, among others.

18 thoughts on “Pound the Table and Scream

  1. Initially, the only comment I have to make on this posting from you is:

    You must realize that Richard Stengal is addressing the readers of TIME Mag. He isn’t and didn’t write his treatise for the readers of a magazine such as the National Review. And your critique of what he wrote definitely would appeal to the readers of that journal, I think.

  2. I read his article as though it were an objective critique of the Constitution, if it was mere singing to the choir instead of journalism, my bad.

  3. Of course I think it would be the right thing to destroy yet another trillion of latent debt – but I’m equally sure that Treasury won’t, as Mr Geithner has already said that a third round of quantitative easing (read: printing money) may be necessary.

  4. I just finished reading this week’s TIME Mag. letters to the editor page which was full of comments concerning Mr. Stengel’s essay. Very interesting, I thought.

    They ranged from “Has Richard Stengel even ever read the Constitution?” To “Thank you for a brilliant article…I read it a second time substituting the word ‘Bible’ for ‘Constitution’ and it was a liberating religious experience. Could Time publish a similar article about the Bible…a 2000-plus-year-old document?”

    Obviously you realized there was going to be a lot of controversy raised over the publication of this article and that’s why you posted this blog. I’m surprised that this essay grabbed so much attention. For one thing I didn’t know that Mr. Stengel was such an informed person. I thought he was just a journalist. It turns out he is the former director of the National Constitution Center in Philadelphia. That fact certainly gives his article a degree of gravitas, I think.

    Personally I found his writing to be pretty objective. For instance the point about what would the Founding Fathers think of and do about the current modern day problems we face wasn’t meant to insinuate that they would be clueless and helpless. Which is the way you took his meaning. He was merely stating that from the Liberal perspective this is a relevant argument to make. He doesn’t say he personally agrees with the argument. I didn’t get the impression that HE THINKS the Founding Fathers were a bunch of “old rich white guys…” Some of the stuff he wrote I don’t agree with at all and I’m the quintessential Liberal. Since you found a whole lot of stuff he wrote objectionable I’d say that indicates a degree of objectivity, wouldn’t you?

  5. His opening and closing are pure liberalese for the Constitution’s uselessness in modern times, but, as I said, when he gets into the meat of his article, he didn’t lay a glove on the document. And as I commented on your comment, I took it as an objective critique; it was you that informed me that he was writing to Time’s audience, not National Review’s. I assume by that you meant he was writing to liberals, hence my objectivity comment. The “bunch of rich white guys” comment is my summation of most liberal arguments against the Constitution, and in fact, he begins by listing a handful of accomplishments that have occurred since the Revolution.

    To me, the most interesting aspect of the article was, given its title and artwork (i.e., a shredded Constitution), his arguments were weak and ineffectual. We agree that the War Powers Resolution is unconstitutional; we agree that actual default on US debt is unconstitutional; we disagree on ObamaCare (surprise!); and we agree on the obsolescence of the anchor-baby provision of the 14th Amendment.

  6. Well I disagreed with him on the War Powers Act. I agree with you both that default on the US debt is unconstitutional. I agree with him–I guess–on the Healthcare Reform Act. I’ll have to reread what he wrote about that, but if you say he thinks it is constitutional, I agree. I disagree with two of you on your opinion of the 14th Amendment being obsolescent, and last, I agree with him on the “jus soli” matter. That’s where I stand. No surprise there.

    And by the way you aren’t the only person who found the cover picture of the Constitution being shredded offensive. For most conservatives they took that picture to be as sacrilegious in intent as a picture of a Bible burning would be. I think the intent of the picture was to pose the question, “Are we in the act of shredding the Constitution?” And not “Let’s just shred the Constitution and start over.” It’s all in your perception, I think.

  7. If you will notice, I haven’t said that the 14th Amendment is obsolete – just the anchor-baby provision of it.  You could be right on the intent of the title illustration.  Coupled with the title – One Document, Under Siege – I just assumed that Time meant it as editorial rather than interrogatory.  I may have missed that.  He does proffer that the Affordable Care Act is constitutional, although he never addresses the question about how a law to regulate commerce can make people commit commerce.  His argument to remove the “universal” label is wrongheaded on two counts – the Democrats are proud of its universality; and, citing Medicare and Medicaid entitlees as not having to buy insurance doesn’t hold water, as I discussed in the piece.  

  8. Today I’ll make just one point and ask one question in response to your reply. It concerns the 14th Amendment discussion.

    I understand that both you and Stengel were only referring to Section I of the 14th Amendment and not the whole Amendment. But I think both of you are saying that Section I is obsolete in it’s intent. It was intended to keep states from excluding the offspring of slaves from being citizens. And this is no longer necessary. Stengel is saying that there is a question as to whether it should be applied to the current offspring of illegal immigrants. It is debatable. You are saying that it is being misconstrued and corrupted by those who come into the country illegally and have babies here. And further, you are saying that this practice is circumventing the Framer’s intent. In other words you are saying that it’s OK to “interpret” the intent of the Founding Fathers in this instance. Are you not?

    I maintain that if this is the case then you and those who agree with that idea should do what you are always insisting upon: Change the Ammendment through the means that the Constitution provides. What’s wrong with this suggestion and tell me why it isn’t necessary if you would.

  9. Yes, and I will speak only for myself, the part of Section 1 that stipulates native birth alone bestows citizenship has served its purpose, but is now spinning off unintended consequences. Section 1 also deals with due process and equal protection, neither of which are under discussion here. Also, just to keep the discussion accurate, remember that the 14th Amendment was post-Civil War, (ratified in 1868), and thus not a product of the Founding Fathers. Having said that, I don’t think it’s a stretch to say that once ex-slaves and their children were solidly recognized as citizens, it’s job was done. This was a post-Civil War-specific task. We are no longer in the post-Civil War era. This provision is being abused by others for reasons having nothing to do with anyone being the progeny of American ex-slaves.

    I do think the 14th Amendment should be amended to qualify that those born to legal residents be qualified as citizens. I’ve never said otherwise.

  10. Yes you are right in that the 14th Amendment was post Civil War. I know that. And I also know that the Founding Fathers were only responsible for writing the original Constitution and the first ten Amendments, the Bill of Rights.

    I’m glad that you agree with me that if there is a problem with the 14th Amendment then it needs to be amended through the process set up in the original document and not through some end run around it’s meaning as “interpreted” by either Congress or the Court system. [aka] Repeal the 14th Amendment and write a new amendment and get it ratified.

    But that never happens anymore, sadly. No one wants to go through that years-long, painstaking process. And certainly not when it involves a situation that half the country feels is urgent and must be dealt with right now….Sigh.

    So I predict that Congress will indeed try the “end run” around the 14th Amendment and it will end up being challenged in the Courts. And so it goes…

  11. But we don’t have to repeal the whole amendment – we can write an amendment to the 14th that only addresses the anchor-baby part of Section 1, leaving the remainder intact. As I say, all that needs be done is to stipulate that those born of legal residents be considered for auto-citizenship. There are some other ideas out there that I would like to give some thought to – such as “stapling a green card to every engineering degree” awarded the child of an illegal immigrant; same for completion of military service. What is missing in these plans is what do we do with the rest of the illegals. I am not for mass deportations, but I am for checking the status of anyone picked up for a felony (and deporting upon acquittal or making deportation part of any sentencing upon conviction); I am for insisting on Everify being used for employment (there are several other reasons for people to use false Social Security numbers, and none of them are good). We have yet to have a serious national conversation about this problem.

  12. Only if they can convince the rest of us that they are so much smarter than we are that they must do our thinking for us.

  13. EW: Yes I agree. We could write an Amendment that addresses Section 1 or the 14th only [anchor babies] leaving the rest of the 14th in tact. Fine. My point was that we do it via due process as laid out in the Constitution. Let’s not do an “end-around”.

    And I don’t have a problem with your other suggestions as to ways to make the immigration issue more equitable and palatable either. I like the E-Verify proposal. Also the “green cards for engineering degrees” and / or the completion of military service idea. And I don’t have a problem with deporting any illegal immigrant who is picked up for a felony.

    I’d like to move our discussion on to another point that this Stengel essay brought up and you disagree with: The “jus soli” topic. You say that the restriction put forth in the Constitution limiting the office of the Presidency to only native [natural] born residents of the United States is still valid and important. I’d like to know why you think that? I understand why the Framers of the Constitution put it in the document. Considering that it was written in 1786. But in this century it certainly seems archaic to me. Care to discuss?

  14. I think symbolism is still important, and a government of, for and by the American people can be best illustrated by allowing only life-long Americans serve as its head. It’s only one job so limited, and I can’t think of anyone who is disqualified by this provision that should be president; can you? It’s not really a big thing with me, but I do think it is important from a continuity and symbolism standpoint.

  15. I can think of a few people who might be qualified to at least run for President: Henry Kissinger, Zvieg Breshenski, and Arnold Shwarzenegger to name three. And when you think about it, if Alaska and Hawaii had not been made states in 1959, Barack Obama and Sarah Palin wouldn’t be “qualified” either. Just sayin’.

  16. I didn’t say who “could” be president, I said who “should” be president. Just for the record, I don’t think Barack Obama and Sarah Palin are “qualified” to be president right now.

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