Wednesday, November 12, 2008
Disappeared Constitution
by Larry Geller
Well, George Bush continues to trample on what he is reported to have called “a goddamned piece of paper.” But the Constitution has been interpreted throughout its history, it seems, and perhaps Bush has only been the latest person in power to dis it.
Here’s a Libertarian website with something to say about that. I can’t believe I’m sending readers to a Libertarian site, but this is food for thought perhaps. Here are just two of a long list of Constitutional Dead Letters in the article:
- The congressional declaration of war clause, Art. 1, § 8. No "war" in the constitutional sense has been declared since 1941, although the executive branch has engaged in numerous undeclared wars and military escapades around the globe.
- The Sixth Amendment vicinage clause (requiring an "impartial jury of the State and district wherein the crime shall have been committed"). In practice today, most federal court proceedings have been centralized into the largest urban areas of each federal court district, leaving rural defendants in many cases to face trials before urban juries drawn from jury districts that do not include the scene(s) of the alleged offense(s).
I just picked two. Have a look an how the Constitution of today has become so different from the document signed so long ago. More:
It can hardly be a coincidence that all of the dead letters happen to place limitations on the scope and power of government. In contrast, the few provisions of the Constitution granting powers to government have been interpreted expansively. The clause giving Congress power to regulate interstate commerce, for example, has been interpreted by the courts to allow Congress to imprison people for acts that can be linked to either commerce or interstate activities only by a tenuous series of conceptual inferences.
There are even provisions which were included in the Constitution to limit government but which have now been interpreted to empower government. The Takings Clause, which states that no person shall be deprived of property "without due process of law; nor shall private property be taken for public use, without just compensation," was recently construed by the Supreme Court to give government at all levels near carte blanche power over all property. In a 2005 decision entitled Kelo v. City of New London, the Court reinterpreted the phrase "for public use" to mean for whatever use any government desires – including private use.
Update: I know that many people don’t read blog comments. An excellent discussion follows in line of flight’s comment attached to this post. Check it out.
Libertarian propaganda always slides over important details when it makes claims to historical authenticity. The district issue is one of these. Most states have one federal judicial district to cover the whole state. It's also likely to be in the urban core where most of the district's population is (and where rural citizens are likely to be equally disadvantaged). See this Wikipedia map of the districts:
http://en.wikipedia.org/wiki/Image:US_Court_of_Appeals_and_District_Court_map.svg
The claim that "urban juries drawn from jury districts that do not include the scene(s) of the alleged offense(s) is simply not true unless when they get to this last part of the statement, they shift from "federal judicial district" to something else like "state house district" or "county board of supervisor district." But it is impossible for a federal district court to draw from a jury pool outside of the district where the offense took place unless there was a change of venue requested by the Defendant.
Also, if you look at the real history of the United States. The rich land and slave owning white men where fucking over poor people before the constitution and certainly didn't intend to advantage the poor when they drafted the document. The error is that while many libertarians may vaguely resemble the rich people that the Constitution was created the protect and support, they are not at the apex of an agrarian society. Their claims to something intended or enacted by the constitution 200 years ago is really attempting to insert into the past, something that wasn't there, like justice, fairness or equality for all.
This is why most of the people who supported Ron Paul were young white men who have a misplaced sense of disempowerment.
Also, the commerce clause is what made the New Deal possible and the Civil Rights Act of 1964. Segregationists in the 1950s who supported so-called "states rights" and more recently the Rehnquist court has eroded a lot of the commerce clause jurisprudence (except, surprisingly when used to justify national anti-drug policy). I think one of the problems of the libertarian attack on constitutional jurisprudence is that it totally lacks a theory of judgment or its relationship to the facts of particular cases or how to rule. A 1789 interpretation of the commerce clause would likely eviscerate the federal government of any power to do anything.
We don't need to cut off whole limbs to stop the bleeding of a paper cut at the tip of a finger.
Thanks for your comment. I amended the main post for those readers who usually do not read comments.
"I can’t believe I’m sending readers to a Libertarian site, but this is food for thought perhaps"...
There's a first for everything. Lew Rockwell through his website has been consistently anti-war, since day one. And Justin Raimondo, of the noted Antiwar.com, is a libertarian.
http://www.lewrockwell.com/orig2/peace-arch.html
http://en.wikipedia.org/wiki/Antiwar.com
And here's Joshua Frank:
http://www.counterpunch.org/frank10062005.html
The one-issue alliance of Rockwell and lefty folks like myself only means we see it as necessary to come together and oppose this brutal, illegal war. We aren't talking regulations, here. We're talking about misguided US foreign policy that's killed tens of thousands of people. And no matter what the FPM crew say, it's not Commie of Rockwell and his readers to say that this war must stop, now. It's humane of them.
I'd rather follow LewRockwell.com than some cruise missile leftists.
: November 16, 2008 at 8:32:00 PM HST << Home
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