The Leftist View Of The Constitution

It is both perverse, and inverse:

The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.

From the Right’s perspective, the question is not whether some specific provision in the Constitution invalidates Section 4 of the VRA, but whether it is expressly authorized — whether it fits on one of these islands of federal power. The argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified by extraordinary conditions. This is because the 15th Amendment only authorizes Congress to “enforce” its protections through “appropriate legislation.” Therefore, Congress has to be careful about imposing limitations on states that are not constitutionally required. In the majority’s view, justifying limits on states in 2006 based on conduct from the 1960s and early 1970s fails this test — it does more than “enforce” the 15th Amendment’s guarantees, and therefore exceeds the scope of federal power. Although the majority never says so explicitly (perhaps intentionally), this imposes limits on the 15th Amendment’s enforcement power similar to those imposed Section 5 of the 14th Amendment. the enforcement power.

Yes, that’s what limited government was supposed to be about. The Left thinks that anything that’s not explicitly unconstitutional is constitutional, whereas the Founders specifically enumerated the powers of the federal government. That was the idea of the Ninth and Tenth amendments, which have largely become dead letters, but which some, such as Justice Thomas, are trying to revive.

23 thoughts on “The Leftist View Of The Constitution”

  1. Turns out the Constitution was a suicide pact – it’s just those who stopped following it are the ones that are going to bring everything down around us.

  2. When talking about individual rights (as opposed to government powers), it was said in the old Soviet Union “that which is not expressly allowed is prohibited.’ The American view was “that which is not expressly prohibited is allowed.”

    Interesting how the exact opposite standard applies to government, or is supposed to apply based on the Constitution. For the US government, the Constitution laid the foundation of “that which is not expressly allowed is prohibited” while the Left pushes for the opposite view.

  3. Except that the 15th Amendment was written after the 9th and 10th. It (and the 13th and 14th ) were expressly designed to overrule the 9th and 10th in the specific areas of race.

    This ruling is like the Supreme Court ruling that a spending bill for the Army is unconstitutional because, in their opinion, Congress is spending too much money.

    In both cases, Congress is given an express power to do something – to “raise an army” and enforce a right with appropriate legislation. Appropriate in this case meaning “accomplishes the goals stated.”

    Now, if Congress were to “raise an army” by, say, prohibiting the use of private automobiles, then a case may be made that the law was unconstitutional. But allowing them to raise an army by spending money on recruiters, no matter how much, is none of the court’s business.

    Similarly with the VRA. Congress can ensure people have the right to vote by passing legislation that deals with voting. The courts don’t get to decide if Congressional legislation is a good idea; all they get to rule on is “does this pertain to the stated goal?”

    1. “The courts don’t get to decide if Congressional legislation is a good idea; all they get to rule on is ‘does this pertain to the stated goal?'”

      And SCOTUS has said that, because the VRA was re-authorized using data from the 1960’s, it cannot, by definition, “pertain to the stated goal”, because it uses outdated data.

      Congress could have easily avoided the lawsuit and decision by just updating the data (it’s not like Obama hasn’t employed thousands of Census workers), and using the new data to update the legislation. They can also re-apply the legislation by doing the same.

      1. That’s like arguing that because we haven’t fought a dogfight in a decade, it’s unconstitutional to buy fighter jets. Not the court’s call.

        1. To the Left, it’s always 1965 in the South. No one can deny the terrible things that happened back when Democrats ran everything, what with the Jim Crow laws they implemented and enforced and George Wallace standing in the school door to block segregation. Things have changed and when conditions change, the law should change. Instead, the law continued to have separate and unequal impact on certain parts of the country, not on the basis of current conditions but what ended decades ago. The court declared that unconstitutional.

    2. Perhaps the VRA should be expanded to include all states so that everytime Democrats want to gerrymander districts by race or some other factor they need to get approval by the feds. Pre-approval could go a long way to help end voter fraud and other shenanigans Democrats like to pull at election time.

      Of course, with this administration we have seen the use of federal powers to persecute the political opposition so there is reason to believe that pre-approval would be abused. Opps, did I say would be? The current administration did abuse pre-approval.

      1. That would gut the “separate sovereignty” portion of Robert’s argument.

        It’s still like saying that if Congress buys ships for the Navy they need to base some of them in Nebraska. If Congress explicitly has the power to do something, that means they can do it, whether Roberts likes it or not.

        1. Ya, I wasn’t really commenting on the decision just the hypocrisy of Democrat views. But it does seem to me that if a certain behavior is wrong in “the dirty south” that the same behavior should be wrong in Chicago or LA.

          And I don’t think that pre-approval should be the norm for all states because it will be abused as the Obama administration has been abusing it to persecute what they view as enemy states and to gin up racial tension. Someday, a Republican administration could pull the same underhanded dirty abuse of power and that would also be wrong. Best not to allow that type of abuse of power in the first place.

          While it would be nice to see Democrats get what they have been dishing out, that sort of thing is better left to the imagination in a book or movie and not actually played out in society because it would destroy our country.

          Or every 4-8 years we can have half the country audited by the IRS and government contracts go to donors and family members. Healthcare will only go to those with money to buy what they want or the politically connected. Business permits will only be granted to those in The Party (being whatever party controls government at that time). And we can look forward to the purge of all government workers after each election.

          Obama’s political theology needs to end with his term as President.

  4. I’ve often thought that a big difference between liberals and conservatives is that conservatives are concerned with process, while liberals are concerned with results.

    Conservatives believe that there are right ways and wrong ways to do things, and procedures and rules which must be followed. The Constitution must be interpreted in light of the original intent of those who wrote it. If a court decision sometimes goes in an unfavorable way, well, those are the breaks.

    Liberals are willing to twist the Constitution into pretzel shapes in order to obtain the result they want. Likewise, they’re not shy about committing vote fraud to win elections. Or, as Marx put it, “the end justifies the means”.

      1. That may be so, but in America, it is the leftist Democrats who have turned it into an art form. Republicans are disorganized amateurs by comparison.

  5. “The Constitution must be interpreted in light of the original intent of those who wrote it.” Sure. And if one does that, how does one interpret the Constitution in cases involving things of which the Founders could not have even dreamt? IVF might be one example. Or “freedom of the Press” in relation to the Internet? Incidentally, freedom of the press was always a crock anyway; in reality, it was always confined to those with either the resources to buy and operate one, or friends who had same.

    1. The Constitution is about human nature when it relates to power, which is something technology effect only around the edges.

      The truth is, the section of VRA the Court struck down was never constitutional; this Court just happened to finally say so.

    2. The US Constitution is a remarkably short document. It laid out the structure and overall philosophy for the federal government. It never did attempt to describe every possible future circumstance but if the principles are right and correctly applied, you can still function.

      Our Constitution established the principle of separation of powers because the founders knew how power corrupts. They defined limits to powers and deliberately made the Legislative Branch inefficient to avoid undue haste in making laws. We’ve seen a lot of undue haste recently, both with ObamaCare and now with the rush to force massive immigration changes down our throats.

      “If all men were angles, we wouldn’t need government at all.” – James Madison

      Unlike the EU Constitution, the US Constitution didn’t try to anticipate every contingency or enumerate every right. The 9th Amendment says that the rights enumerated in the Constitution aren’t not all inclusive; we have more rights than are listed. That was one of the concessions to the Anti-Federalists. IIRC, the EU Constitution enumerated dozens, if not hundreds, of rights with the assumption that if a right wasn’t included, it didn’t exist.

      It Constitution is pretty easy to read. I need to spend some more time reading both the Federalist Papers and the Anti-Federalist Papers to learn more about not only the original intent of the founders but also the concerns of those who opposed the Constitution.

  6. Sorry about the double post – something I forgot. One glaring example is the 20th Amendment, which leaves nearly three months of ineffective government when a new President has been elected – the so-called “lame duck” situation. While I fully understand why the delay made sense when the 20th was enacted, that particular provision makes no sense at all under current conditions except, of course, when there is some dispute about the result.

    Although we choose our head of government differently over here in the UK (note that I didn’t say “head of state”) the delay in our case is usually less than 24 hours. In the case of our head of state, of course, the delay in transfer is in milliseconds. Has anyone ever timed “The King is dead – Long Live the King!”?

    To avoid the snark; yes, I am aware that the next time that happens (may it be long delayed) the first will be “Queen”.

    1. You do realize, don’t you, that before the 20th, the President was sworn in in MARCH? How many months of lame-duckness was that?

    2. Actually, any second term president is called a lame duck. The transition period between the election and the inauguration was shorted from March to January by the 20th Amendment. That may still be too long but there are several things that have to happen during the transition. For one thing, the election isn’t official until the Electoral College votes some weeks after the election. There’s also time to give the President Elect to shift from campaigning to governing mode (something Obama never did) by selecting his nominees for cabinet positions, selecting people to fill dozens to hundreds of other positions across the federal agencies, learning the ropes of the job, etc.

  7. Larry J – Sorry, forgot about the electoral college. Which is a rubber stamp anyway these days – yes, I think that’s a bad thing and should be corrected, but that’s another discussion altogether. Why the long delay in that case?

    As far as having a cabinet in place is concerned – well, we handle that particular problem by having a shadow cabinet, which is its official name.

    McGehee – Yes, I’m aware that the 20th improved the situation. I wasn’t aware of the details. Sorry, but the details of 80-year-old laws, no longer current, in another country aren’t one of my priorities

    1. Yes, the Electoral College is pretty much a rubber stamp but it’s still a constitutional requirement (and still valid). I think the transition period can be shortened but it would likely take another amendment, so it’s unlikely to happen anytime soon. The original March period was implemented in an era when horse and sailing ship were the main means of transportation. In a president elect was in his home state (say Andrew Jackson in Tennessee), it could take weeks to get to Washington DC. That also applies to the Electoral College – it took a long time for all of them to gather to make the election official. When the 20th amendment was passed in the 1930s, airline travel was still quite primitate and unreliable in the US but they did have railroads and cars to shorten travel times considerably.

      I still believe that making the switch from campaigning (a full time job that goes on way, way too long) to governing a bloated federal executive branch is a big one. The cabinet nominees are the most visible but there aren’t that many of them. There are hundreds of other people to appoint to political positions in the hundreds of federal agencies and departments, assembling the working staff, etc. Our federal government is far more bloated than yours in the UK.

    2. And as the nation expanded the amendment served us well. A President elect could be all the way out in state number 57 when the election results come in, and it can take quite a while to travel back to DC from there.

      1. Hmm, it is interesting you say that. What if the 57th state was on Mars? Would a couple months be enough time for our new president to get to Earth or would they even need to come back to Earth? Would our colonies have any voting rights or could a colonist even be President?

        How many times does a dead Martian’s vote get counted? So many questions.

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