In which I completely agree with Ramesh (not to imply that I generally disagree with him, though I occasionally do, being more libertarian than conservative):
If O’Donnell loses the Senate race, she should become Slate‘s chief legal writer. It would be a step up for the publication.
A big one.
And it’s just another example of the contempt in which people like Dahlia (and frequent commenter Thomas Matula) hold the Constitution and its requirements for elected officials and their oath.
[Update Thursday morning]
I can’t link it, because, well, it’s an email, but here are Jonah Goldberg’s thoughts:
This is awesome. It’s not just that Lithwick dismisses a perfectly sensible and mainstream argument. It’s not just that she is ignorant of the contents of the actual Constitution (it does not provide for the Supreme Court serving as the either sole or final arbiter of what is constitutional). It’s not that she seems to have forgotten Marbury v. Madison. It’s not that she cannot grasp the idea that some legislator might not want to vote for unconstitutional legislation. No, what really makes this great is the absolute bunkered pomposity behind her instinctual certainty that anyone who disagrees with her bouillabaisse of ignorance and ideology must be “weird.”
Indeed.
The Oath of Office is a great indicator of a person’s integrity. When someone swears an Oath to perform an action with absolutely no intention of performing it, you know what kind of person you’re dealing with.
Or when a person swears an Oath without any understanding of its meaning aside from “I need to swear this Oath in order to obtain this job”…
Man I’ve seen too much of those in my line of work.
Unbelievable. What a perfect match with Kagan on the court. We need to take a test before being allowed to drive, but to vote? Any numbrain may apply.
Wow, just wow. The writer must be (in decending order of probability) a hypocrite, recidivist or a saint.
Rand,
[[[(And it’s just another example of the contempt in which people like Dahlia (and frequent commenter Thomas Matula) ]]]
Evidence? I respect the Constitution, probably more so then most of the Tea Party movement who have suddenly discovered it, and their civic duties, after avoiding politics and elections for decades.
What I hold in contempt is when right wing radicals like Sarah Palin and her Puppet Patrol (AKA Tea Party Express) who misuse it to push their own agenda. And folks who don’t vote in elections and then complain about who got elected.
Also what many of you are defending as the Tea Party really isn’t. Its the Sarah Palin/Fox News machine. Nevada is a case in point where Palin’s Tea Party Express ran over the real Tea Party candidate to push a career politician everyone in the State knows and laughs at over the real Tea Party candidate.
http://www.scottashjianforsenate.com/index.php?option=com_content&view=article&id=45:press-releases&catid=15:press-releases&Itemid=100
[[[Scott Ashjian is re-launching his bid for the US Senate!
For the past several months Scott Ashjian has been a gentlemen allowing Sharron Angle every opportunity to blow past Harry Reid for the Nevada US Senate seat. ]]]
[[[Both Reid and Angle are career politicians that attack each other on TV offering no solutions to the 163,000 Nevadans out of work.
How can you think Harry Reid or Sharron Angle will be able to create private sector jobs? They have never created any private sector jobs and they have never run a business, all they know how to do is spend YOUR hard earned money!
Scott is a career businessman, having hired hundreds of people in Nevada. Scott knows what it takes to get the local economy going again. While the politicians talk, Scott has been starting the largest Internet marketing company in Las Vegas, hiring high tech professionals and training locals to get them ready to enter the workplace.]]]
So tell me, which do you think better represents YOUR view of what the Tea Party is? Another career politician who’s only qualification is allegiance to Sarah Palin, or someone who actually knows how to run a company and manage an organization’s budget?
I see another PDS episode from @TM
Yes, it’s hard to know whether it’s Palin or Fox News that blows his blood vessels more.
Also gotta love a guy that screams about a lack of evidence while then making his own broad claims. You see we’re all easilly led rubes that don’t deserve to speak out or protest because we’re only now speaking out.
All this while conveniently ignoring Lithwick’s point that only judges should be concerned with constitutionality. Oh and Lithwick’s other point that there’s nothing constitutionally questionable that Obama’s done.
Wow, I’m experiencing some kind of morbid fascination watching Thomas self destruct right before my eyes.
I recently was in a debate about the overall issue (should legislators have to demonstrate how the Constitution allows for their action). Naturally, I took Rand’s side: of course they should! Most of the other people in the room were lawyers, and they all disagreed with me. I was dumbfounded at first, and Lithwick’s position seems similarly dumbfounding — how can members of congress pass laws without worrying about whether they are constitutional?!! For that matter, doesn’t it seem odd that the constitution isn’t being treated as an accessible document that ANYONE can and should consult? It obviously doesn’t take a judge to figure out what is constitutional, right?
The rebuttal was easy to understand: I was being too simpleminded. OF COURSE congress shouldn’t pass a law its members know is unconstitutional! Everyone in the room agreed with that, and certainly no one had contempt for the Constitution. But, they pointed out, oftentimes (and sadly, not every time), by the time a bill comes to the floor for a vote, it has been vetted so many times that it really does take an expert, a judge, and ultimately the entire judicial system up to the Supreme Court to figure out whether it is constitutional or not.
I won’t defend the way Lithwick presented the argument, but unless you are just looking for an excuse to be outraged, it seems quite unfair and rather silly to assume that she has contempt for the Constitution. She clerked for a Federal appeals court judge and knows first hand that every constitutional question isn’t easy to answer.
Finally, it is worth looking at the quote with the context of the entire “Double X” conversation on slate — this isn’t a formal legal discussion – this is a chatty conversation among women looking for clever symbolism to “decode” O’Donnell — as such, I think it should be held to the standards you would hold English majors too…. Superficial? Sure! But worthy of outrage? Nah.
Odd that the olive branch didn’t extend to O’Donnell . Yes it was a conversation, and Lithwick was repeatedly (perhaps disingeuoulsy) confused by what O’Donnell meant.
Also if laws are so complicated that you can’t readilly tell if they’re unconstititional… Well 1 that’s a bad sign for how well the law will work, and 2 doesn’t that mean that legislators should be even more concerned about the legality of the bill they’re lookng over?
“Oftentimes” is good enough for them?
I’d like whoever submits a bill to place their reputation, even their “sacred honor” before the American people who they work for every time.
Think of how campaign finance “reform” forced candidates to insert lame blurbs about how they support each commercial. Do the same thing to each bill, with enough detail spelled out (the basis for the bill’s constitutionality) to show the congresscritter (or rather, their staff or the think-tank that actually wrote the bill) did do some due diligence first. Force the congresscritter to have an actual stake in the bill, one that might come back to bite them politically, and see whether that makes them a tad more cautious about introducing bills they have never even read that were written by politically-favored NGOs sight-unseen.
Yes. But look at it this way: we have appeals courts — why are they needed? Why can’t a lower court judge get it right?
Rand Simberg,
I always find it amazing how gullible folks like you are. Yes, Ayn Rand had it exactly right on about Libertarians being worst then Marxists.
I always find it amazing how gullible folks like you are. Yes, Ayn Rand had it exactly right on about Libertarians being worst then Marxists.
Hilarious.
At least we don’t become deranged by former Alaskan governors and cable news channels.
Rand Simberg,
No, you just get conned by them.
It will be interesting to watch blogsphere’s excuses after the elections.
Heh, I just noticed my language errors in the same sentence where I made fun of English majors. That’ll teach me!
No, you just get conned by them.
In what way? How do you know where I get my information?
Don’t quit your day job to become a mind reader.
Here’s another reason for not explicitly stating the constitutional justification for each law in the law: it unnecessarily opens up a can of worms that makes the law itself harder to understand. Consider, for example, the 2nd amendment. The amendment would have been clearer if it had simply said
” the right of the people to keep and bear Arms, shall not be infringed.” Instead, it introduced all sorts of unnecessary confusion by including the clause about “A well regulated Militia, being necessary to the security of a free State”… And for all the resulting confusion, that was still a much clearer explanation than a constitutional argument would end up being.
Rand,
Where ever you get your information you need to dig deeper and apply a bit more insight when evaluating it.
A quote to consider:
The hardest thing to explain is the glaringly evident which everybody had decided not to see. – Ayn Rand
Where ever you get your information you need to dig deeper and apply a bit more insight when evaluating it.
Absent specifics, this is completely meaningless blather. I could say exactly the same to you, with as much or little justification.
And your Rand quote has no context in which to lend it any meaning, either. You’re just typing crazy shit to see the words on the screen.
Rand, did you read the three article series by Lithwick and her friends, or did you just pass on Ramesh Ponnuru’s commentary?
(I assume that’s part of the context and/or crazy shit that Thomas is getting at.)
No, life is too short to spend a lot of time reading Dahlia Lithwick. Ramesh did it so I don’t have to. Anyone else is free to follow through the links. And it still remains unclear to me what any of this has to do with Sarah Palin or Fox News.
Any law the constitutionality of which isn’t plain as a pikestaff to any schmo with an IQ over 95, a high-school education, and a copy of the Constitution in his hand, shouldn’t be passed. I can think of no law whatsoever that is both necessary for the survival of the Republic and yet which is so complex that it takes a learned scholar to puzzle out its constitutionality.
So I find this whole line of argument about how we need professionals to tell us what the Constitution says to be (1) complete bullshit, and (2) dangerously close to the traditional aristocratism of the 19th century nation-states of Europe. It was in England and France in 1770 that the notion was commonplace that only those born and bred to the ruling class (and trained at Eton and Oxford) could possibly judge the proper behaviour of men. The peasants were just too damn uncultured, boorish, stupid. They needed to be told what to do by their betters.
This is exactly what we rejected in 1776, the notion that only the king or aristocracy was the fount of sovereign goodness, and I think the history of the United States since then has been one long overwhelming proof that the original thesis — the plain men are incapable of governing themselves competently — is pernicious self-serving garbage.
Furthermore, I often suspect those who support this point of view of overweening intellectual snobbery. Because, you know, it’s not their own judgment that they are volunteering to be overridden. Oh no — it’s yours. They don’t anticipate being one of the peasants, they expect to be one of the Wise Leaders enforcing his judgment on the peasants, i.e. you, if you disagree with the Reigning Orthodoxy.
What makes this snobbery, and not (for example) the justified confidence of someone with truly superior ideas and understanding, is that they can’t sell their ideas and conceptions on the free market. They can’t persuade others to adopt their “good” ideas, so they want a structure by which they can impose them.
But I’ve never yet heard of any really good idea that needed force to get implemented among men. And I’ve heard of a lot of bad ideas that only seem good to their inventors.
The principle is the same with news shows in general, and Fox in particular: If you read Lithwick’s entire article instead of relying on Ponnuru’s partisan commentary, you’re better able to understand and/or criticize Lithwick. If you listen or read a politician’s whole speech instead of just relying on Fox’s partisan commentary, you’re better able to understand and/or criticize that politician. As you point out, all the major news networks have bias, but many people (like Thomas, I’m sure) believe that Fox has even more partisan bias than most.
By the way, I only read Lithwick’s piece because you indirectly linked to it. It wasn’t very good. I wish there was some easy way for you to indicate how many levels of links you were recommending. I’m not complaining about free ice cream – I’m just wishing that you had a spoon that made things better for you, the scooper.
Carl, generally, I agree with you. On the other hand, as I pointed out, the 2nd Amendment turned out to be devilishly hard to interpret unambiguously over two centuries. Think how much time would have been saved if the founders had left out the part about “a well-regulated militia”.
Rand Simberg,
[[[No, life is too short to spend a lot of time reading Dahlia Lithwick. Ramesh did it so I don’t have to. Anyone else is free to follow through the links. And it still remains unclear to me what any of this has to do with Sarah Palin or Fox News.]]]
Once again you act dense to avoid hearing things you dislike. The reference was into doing more research on Sarah Palin and the Tea Party movement in general, not Dahlia Lithwick.
Remember you are the one who stated this by implying at the top I had contempt for the Constitution just because I don’t buy into the Sarah Palin cult and its that slander I am responding to.
But that is OK, I should remember that once people get conned they prefer to stay that way rather then understand what is going on. But then, that is no different then the way believers in President Obama closed their eyes in 2008.
And once again, to short cut the comments here, I voted for Senator McCain not because he was my preferred choice, especially after picking Sarah Palin instead of someone competent, but because he was not Obama.
Also: using pre-existing case law, good or bad? If good, then it gets harder and harder to get things done and requires greater and greater expertise as time goes on.
The reference was into doing more research on Sarah Palin and the Tea Party movement in general, not Dahlia Lithwick.
In other words, the reference was to a subject that had nothing to do with the topic at hand, other than your deranged obsession with it.
Remember you are the one who stated this by implying at the top I had contempt for the Constitution just because I don’t buy into the Sarah Palin cult and its that slander I am responding to.
I implied nothing of the kind. You falsely inferred it, because of your Sarah Palin derangement. I wrote (not implied) that you have contempt for the Constitution and officials’ duty to obey their oath to uphold it because you have essentially said as much.
Bob, I can’t imagine any context from which Lithwick’s quoted paragraph could be pulled that would ameliorate it, so I saw no need to dig further, trusting that Ramesh had not altered it.
In other words, the reference was to a subject that had nothing to do with the topic at hand, other than your deranged obsession with it.
Or, to quote from the movie “Up”: “Squirrel!”
Carl, I’d just about elect you president based solely on your 10:51 post. Excellent as always.
Cal Pham – veering off topic here, but you do realize that the men who wrote the Constitution were lawyers and legislators. They were most definitely “elite” by any standard in use at the time, and they came from a tradition of English common law which relied heavily on legal interpretations of historical precident.
These same people were convinced that paying off the Revolution’s debt was important enough to extract a tax on whiskey by force. See “Whiskey Revolt” for details.
Well, first of all, Chris — so what? Not being a Democrat or a Marxist, I don’t judge the quality of the work by the political class or socioeconomic background of the craftsman. You want to talk to the left to find those who would — to pick a random example — have contempt for political ideas simply because they’re expressed by someone who worked her way through the University of Idaho doing beauty pageants, and slavishly adore any old drivel that spills from the mouth of someone with (say) a Harvard Law JD.
Secondly, whatever their background, the Framers were men of action. They risked their lives to rebel against the mother country and many saw action in the Revolutionary War. Even their careers as lawyers and legislators were typically part-time, and they spent much more time being farmers and merchants. I don’t think these are the same as the Harvard-educated community organizers of today.
Thirdly, whatever the tradition from which they came, you’ll note they were in a process of rebellion against it. Indeed, they kept many valuable aspects of English common law, but we do not live in a common-law system — and that is by deliberate design. They made major and clear breaks with English tradition. The fact that we continue to speak English (a point I suppose the English themselves might actually dispute) is neither here nor there.
And finally: the Framers could have written any damn document they pleased. If they deliberately chose to write simple, plain prose — and they did — it was for a very good reason. They intended that the governing document be plain to any man of good sense. They clearly did not intend for government to rest in the hands of an aristocracy.
Rand,
[[[I wrote (not implied) that you have contempt for the Constitution and officials’ duty to obey their oath to uphold it because you have essentially said as much.]]]
Evidence? or is just because I think the Sarah Palin cultists are right wing wackos?
Chris Gerrib,
[[[Cal Pham – veering off topic here, but you do realize that the men who wrote the Constitution were lawyers and legislators. They were most definitely “elite” by any standard in use at the time, and they came from a tradition of English common law which relied heavily on legal interpretations of historical precident.]]]
And they also needed to carefully select their wording so all of the colonies would approve it, which is why it took most of the Summer. And why the Bill of Rights was added, as a separate series of documents to vote on.
Carl Pham,
[[[Indeed, they kept many valuable aspects of English common law, but we do not live in a common-law system — and that is by deliberate design.]]]
Actually we do, by design, which is why court cases in one jurisdiction are argued as precedent in others. And why Supreme Court cases are so important.
http://www.lectlaw.com/def/c070.htm
[[[The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states and thus state courts are the primary source of common law. Thus, ‘common law’ is used to fill in gaps.]]]
Readers (and even Rand) may be interested to see that the conversation continues on Slate in Part 4, where Lithwick’s comments are discussed.
Unsurprisingly, there is absolutely no contempt for the US Constitution.
There isn’t even contempt for O’Donnell (who is the subject of only the first paragraph, so skip over it to the discussion about the Constitution if you prefer.)
Thomas, “most of the summer” to come up with a one-page governing document that bound together 13 fractious states and has lasted a solid two centuries since then strikes me as blindingly fast. Just compare it to the agonizing year-long struggle over “health care reform” and the muddle abortion that was produced. These were, as I said, men of action. They knew how to get stuff done.
Personally, I think a good bit of their success was rooted in their experience during the War, and with the Articles. They — particularly Madison — knew very well how not to do things. Furthermore, they didn’t give a damn about re-election or servicing some parasite class that funneled money to them. They just wanted the country to survive. They were very focussed and disciplined.
I have not denied that common law is important in American law, but it is not governing, as your own quote demonstrates. Written statute overrides it, and that’s by design.
People need to understand this is not the first time idiocy has spouted from Lithwik’s high-hole.
By now, why anyone should give that idiot any creedance is a mystery to me. She is clearly out of her depth.
Carl Pham,
Written statue has always over ridden Common Law, in the U.S. and in the U.K. So nothing different there.