Vol. 4 No. 7 (November 2005)
Uncommon Denominator
The Newsletter of the Commonweal Institute
www.commonwealinstitute.org
"Ignorance is
preferable to error; and he is less remote from the truth who believes nothing,
than he who believes what is wrong."
-- Thomas Jefferson, Notes on the State of
CONTENTS
Talking
Points: Against originalism
Wit and Wisdom: Karl Rove in ethics class
Eye on the Right: Financing intelligent design
Quoted! A Marine in
Featured Article: "A Separate Peace"
Happenings: CI conference funding received
Endorsements: Nancy Pelosi
Get Involved: Spread the word; become a
contributor
TALKING POINTS
With the ongoing transition in the Supreme Court, we've been hearing a lot
about "originalism" when it comes to Constitutional
interpretation. This doctrine, espoused by conservative judges Antonin Scalia and Clarence Thomas, along with much of the
American Right, including President Bush, holds that the proper approach to
interpreting the Constitution is to be guided by the "original"
intent of the framers. It is associated (rhetorically, at least) with
"strict constructionism," which stands
opposed to the supposedly liberal judicial tendency to "legislate from the
bench" by pursuing all manner of social engineering and expanding the
scope of the federal government in ways the Constitution does not authorize. As
a practical matter, the doctrine of originalism leads to restrictions on the
federal government's role in American life (particularly on its ability to help
people), and - if the new Supreme Court moves sharply in that direction - it
could mean the reversal or evisceration of much of the social legislation of
the last half century. Far from the promised "judicial restraint,"
the originalism of Scalia, Thomas, and their ilk conceals an activist, even
aggressive, approach to established precedent that would curtail the gradual
expansion and protection of individual freedoms which have been the hallmark of
Constitutional jurisprudence since the nineteenth century.
As a theoretical matter, and as a matter of just common sense, originalism is
seriously flawed. It sounds good -- for it seems to connect us organically with
our founding fathers, and it appeals to our gut preference for the "real
thing" over the bastardized knock-off -- but originalism is both unworkable
and logically inconsistent. To see why, it is necessary to pull apart its
central claims and consider them carefully.
The basic idea is that the intentions of the Constitutional framers - James
Madison, Gouverneur Morris, Rufus King, et al. - are enshrined
in the document itself, that their meanings are unchanging and eternal, and
that the duty of scholars, judges, and justices is to figure out what those
meanings are and then apply them to matters of law. The problems with this
originalist approach are more complex than can be fully addressed here, but
that is all the more reason to identify those problems in their broad outlines.
Regular Americans, not just constitutional scholars, need to be conversant in
why the judicial philosophy of Scalia and Thomas is misguided.
First, the "intentions" of the framers do not form some kind of
monolithic slab. The purposes of human beings engaged in serious political
activity are always complex, shifting, various, obscure -- even when they are
not represented that way. Get a group of them together, as at Independence Hall
in 1787, and the complications undergo what the mathematicians would call
"combinatorial explosion." There were many people in that room, many
ideas, many motives, many conflicts, many compromises, many
shifts of perspective. Which intentions do we go with? Those with which they
began the process, or those with which they ended it?
What about the personal doubts of the framers, even as they signed the
Constitution? Should we make room for the views of those figures who were not
officially involved in the Constitutional debates, like Thomas Jefferson, but
whose views informed the proceedings? What do we with
all the bargaining and horse-trading it took to reach consensus? A consensus
was achieved, certainly, but about the only thing the framers seemed to agree
on (barely) was the need for a stronger federal government than that which had
existed under the Articles of Confederation. It is only sensible to conclude,
therefore, that when delegates as different in outlook as William Few of
Georgia and John Langdon of New Hampshire signed on to the written testament to
that consensus, they had very different ideas about how it should actually
work.
A second, related, problem concerns how the framers perceived their own
intentions and the degree of deference that later generations should accord
them. In fact, one of the principles on which there was greater agreement than
not was the idea that the Constitution should be a "living document,"
that it should be able to respond to changing historical circumstances, and
that later generations should -- within reason -- apply it flexibly to their
particular needs. The founders recognized that they had produced an
imperfect, if extraordinary, document and they did not intend for us to
be slaves to their worldview. That is why the Constitution allows for
amendments, as we all learned in eighth-grade civics class. The framers did not
see their intentions as the final word or the only word. And thank God, for
else the intentions that produced the three-fifths clause and the fugitive
slave clause would still be in force. Those intentions deserved to be
superseded by more modern social and constitutional thought. It's called
progress.
Let's assume, however, for the sake of argument, that we do want to reconstruct
the intentions of the Constitutional framers for guidance on interpreting the
law. This presents such a raft of problems that it's hard to know where to
begin. But let's start here: Since we can't read the framers' minds, we have to
try to infer their intentions, their meanings, their
aims, from the words they left us. Immediately, however, we are brought up
short by a striking contradiction in the originalist approach. To reconstruct
the framers' intentions fully and responsibly, we would have to consult all
sorts of writings besides the Constitution: correspondence, diaries, the Federalist
papers, retrospective accounts of the debates, and so forth. And what would
this reveal? Exactly the kind of chaos that shows how
difficult it is to judge intention accurately. So the originalist or
strict constructionist imperative is to narrowly limit the act of
interpretation to the words of the Constitution itself (where, for instance,
there is no written-down "right to privacy"). We are obliged, in
short, only to consider what might be called the deconstructive logic of the
text - but this is not really an intentionalist
method at all. Indeed, it is antithetical to intentionalism
because it rules out an investigation of what lies beyond the text. This
contradiction between an approach based on what amounts to biographical
research and one based on textual analysis cannot be explained away without
exposing the political expediency behind much of what passes for "originalist"
Constitutional interpretation.
The third major problem with originalism is that it involves a simplistic
and misleading view of the nature of language. The meaning of words is not so clear as the originalists would
have us believe. The "referentiality" of
language, as the linguists would put it, is both historically contingent and
intrinsically murky - which means that there is not a transparent and stable
relationship between words and the things or ideas they refer to, their
referents. In the first place, the meaning of words evolves over time,
sometimes dramatically, as anyone who has thumbed through the Oxford English
Dictionary can attest. Words such as "queer" (which acquired
connotations of homosexuality around World War I) or "web" (whose
recent Internet-related meaning now predominates) are obvious examples. But
terms of politics and civic culture also evolve over time. Indeed, as Gerald Stourzh has demonstrated in his essay in Conceptual
Change and the Constitution (1988), the word "constitution"
itself only came to signify "paramount law" in the late 1700s. So
while we may think we know what a person meant centuries ago, we have to
reckon with the fact that language is dynamic rather than static, and that
words are always responsive to their historical and social environments.
Moreover, linguistic meaning is not a simple matter of one-to-one relationships
between words and referents. Meaning is ambiguous, subtle, elusive.
It emerges from a wide array of psychological and cultural and textual
conditions. This is not, let it be said, some kind of postmodern rant. In fact,
this view of language arose during the eighteenth century, in the wake of John
Locke's seminal insight, in Essay Concerning Human Understanding (1690),
that words have no "natural connexion" to
things, and that "in their primary or immediate signification, [words]
stand for nothing but the ideas in the mind of him who uses them." With a
deepening sense of the arbitrariness of words, the eighteenth century began to
recognize what Anselm Bayly, in his Introduction
to Languages (1758), called the "mazes in language," and to
question the received wisdom that language functioned as a mere sluice for
reality. Indeed, no less central a figure than the great constitutionalist
James Madison, in Federalist no. 37, cited the "cloudy medium"
of language as a confounding factor in political discourse. The deliberate
straightforwardness of the Constitution, therefore, reflected a desire to clear
that cloudiness as much as possible, not a desire to dictate meaning to all
subsequent generations. The dry simplicity of the document confirms rather than
disproves the framers' belief that their language was an imperfect guide to
their meaning.
What all this adds up to, then, is a rejoinder to the claims of conservative originalists and strict constructionists that the job of
Supreme Court justice is simply to determine and then follow the intent of the
framers as expressed in the text. If that's all there was to it, we wouldn't
even have constitutional debates. The fact that we do, all the time, just goes
to show that interpreting the Constitution and shaping our law accordingly is a
robust, messy, animating process rather than the originalist equivalent of
plundering the grave and propping up the corpse of "original intent."
There's one more issue that deserves mention. The conservative
constitutional approach of the originalists is akin,
both philosophically and practically, to scriptural literalism or
fundamentalism. These worldviews are linked by the belief that language
transcends place and time, remaining always immutable. One invokes the word of
the heavenly father and the other invokes the word of the founding fathers.
They are also linked by an excessive deference to authority and by a
denigration of the critical faculties that allow us to question authority. This
harmony between originalism and Biblical literalism should concern us, because
it represents another way - admittedly much less overt than school prayer or
intelligent design - in which religion is being smuggled into our national
politics and civic culture. Hopefully, just as the "higher criticism"
displaced literalism in the nineteenth century as the dominant school of
Biblical exegesis, so a more sophisticated legal philosophy will stymie the
rise of this latest, equally pernicious literalism.
WIT AND WISDOM
Rove Caught Cheating in White House Ethics Class
Top Aide Seen Looking at Cheney's Paper During Pop
Quiz
"Just days after
President George W. Bush ordered the White House staff to take what was called
a "refresher" course on ethics, his top aide Karl Rove was caught
cheating during the first pop quiz given in the course, the White House
confirmed today….
" 'The president doesn't understand why Karl
would go and do something like this,' one source said on Sunday evening. 'The
pop quiz didn't even count that much towards his final grade.'
"But according to the same source, the cheating incident raises an even
more perplexing question: 'If you were trying to get a good grade in ethics,
why would you copy off Cheney's paper?'"
-- The Borowitz Report
EYE ON THE RIGHT
Now that the Kansas Board of Education, in the grip of anti-science
conservatism, has voted 6-4 to include "intelligent design" in the
state's public school curriculum, and to change the definition of science to
include explanations of "supernatural" phenomena, it is worth taking
a harder look at the politics involved. Those politics, it turns out, involved
some pretty unsavory methods in the 2002 elections that brought the
conservative school board majority to power. Four of these six will come up for
reelection next year.
It's well known in
Less well known, until now, is the network of interlocking conservative
political action committees that have been constructed to skirt Kansas campaign
finance laws and channel money to conservatives on the school board.
* Despite the $500 dollar
contribution limit, the online database of the Kansas Governmental Ethics
Commission link lists contributions totaling $1,800 to stealth candidate Iris
Van Meter from the Free Academic Inquiry and Research Committee (FAIR) during a
two month period in 2002.
* Ken Willard, the board member from
* Connie Morris, the District 5 board member from St. Francis, reports FAIR
donations of $1,000 in 2001 and $500 in 2002.
* Steve Abrams, of
* John Bacon, a conservative from
How do they do it? These
contributions are legal only because they are divided between FAIR's state and federal PACs -- each of which can give up
to $500 during the primary and the general election. The state and federal FAIR
PACs are astroturf groups
(shell organizations that exist only to parcel out money) that share a post
office box with the Kansas Republican Victory Fund -- which also has state and
federal PACs. Both are associated with and share a post office box with the
right-wing Kansas Republican Assembly.
Marilee Martin, the Kansas Republican Assembly Treasurer, is also the Treasurer
of FAIR and the Kansas Republican Victory Fund. All three organizations, and
their state and federal PACS, list
According to Federal Election Commission records, the Kansas Republican Victory
Fund received $2,900 from FAIR in 2002 and $2,100 in 2004. Although Kansas
Republican Victory Fund reported to the FEC that it is unaffiliated with any
political party, it nevertheless gives 100 percent of its money to Republican
candidates.
In addition to the money she got from FAIR, Iris Van Meter, took in campaign
contributions, spread across the primary and general election cycles, of $750
from the Kansas Republican Victory Fund Federal PAC and $800 from the Kansas
Republican Victory Fund State PAC in 2002. Van Meter also reports a
contribution from the Kansas Republican Assembly, which is run by her son, Kris
Van Meteren.
In 2002, Ken Willard, reported contributions of $1,000 from the Kansas
Republican Victory Fund Federal PAC and $1,000 from the Kansas Republican
Victory Fund State PAC in a two-month period that straddled the primary and
general election reporting periods. Connie Morris also reports donations of
$500 each from the Kansas Republican Victory Fund state and federal PACs.
Top FAIR contributors include Nancy Hannahan, Harold
C. Hutcheson, and Dennis L. Marten who also made substantial contributions to
five of the six conservative board members: Steve Abrams, Connie Morris, Kathy
Martin, Iris Van Meter, and Ken Willard.
John Calvert, of the Intelligent Design Network, who now seems to have a
special relationship with the school board sub-committee which announced
recently it will hold Scopes style hearings on evolution later this year, is
also a contributor. Calvert made political contributions to Abrams, Morris, and
Martin, all members of the conservative sub-committee that has short-circuited
the existing curriculum development process in favor of public hearings.
Certainly, the privileged relationship granted to John Calvert -- and
intelligent design proponent William Harris -- by conservative board members
gives the appearance of impropriety.
The ideological divisions between conservatives who support intelligent
design or creation science on the one hand and moderates who support evolution
on the other has meant that once sleepy state school board elections -- most
often run out of pocket by candidates -- are now much more costly.
In 2002, conservatives who were up for election such as Connie Morris raised
$18,279. Iris Van Meter, who did not speak to the media during her campaign,
raked in the most, reporting $31,539 in contributions. Ken Willard took in
$28,959.
The incestuous relationships between FAIR, Kansas Republican Victory Fund,
Kansas Republican Assembly, their state and local PACs, and their leading
contributors, raise serious questions about whether the spirit of the campaign
finance law has been skirted.
In the wake of the pro-intelligent design vote, Kansans may be wondering
whether that decision was influenced by large sums of money channeled to
conservative board members by a shadowy network of right-wing PACs that have
found a way around limits on campaign contributions.
-- Pat Hayes
Pat Hayes is a writer and editor who lives in
QUOTED!
"On the current course we will have two options: We can lose in
"Hey, you know, if you want to ban military recruiting, fine, but I'm not
going to give you another nickel of federal money. You know, if I'm the
president of the United States, I walk right into Union Square, I set up my
little presidential podium, and I say, 'Listen, citizens of San Francisco, if
you vote against military recruiting, you're not going to get another nickel in
federal funds. Fine. You want to be your own country?
Go right ahead.
"And if Al Qaeda comes in here and blows you up, we're not going to do
anything about it. We're going to say, look, every other place in
FEATURED ARTICLE
The following is an excerpt from Peggy Noonan's "A Separate Peace,"
which appeared in the October 27, 2005, issue of the Wall Street Journal.
(Noonan, incidentally, served as a speechwriter in the Reagan administration.
Perhaps, as this article implies, she has finally come around to a recognition that we're all in this together, and that working
for the common good is the only responsible way forward).
"I think there is an
unspoken subtext in our national political culture right now. In fact I think
it's a subtext to our society. I think that a lot of people are carrying around
in their heads, unarticulated and even in some cases unnoticed, a sense that
the wheels are coming off the trolley and the trolley off the tracks. That in some deep and fundamental way things have broken
down and can't be fixed, or won't be fixed any time soon. That our pollsters
are preoccupied with 'right track' and 'wrong track' but missing the number of
people who think the answer to 'How are things going in America?' is 'Off the
tracks and hurtling forward, toward an unknown destination'….
"Our elites, our educated and successful professionals, are the ones who
are supposed to dig us out and lead us. I refer specifically to the elites of
journalism and politics, the elites of the Hill and at Foggy Bottom and the
agencies, the elites of our state capitals, the rich and accomplished and
successful of
Click
here to read the whole article.
HAPPENINGS
Major Funding Awarded for CI-Sponsored Progressive Conference -- The A.
H. Zeppa Family Foundation, of
Presentations on Various Subjects -- CI President Leonard Salle had a
busy November making presentations to education and civil justice groups. He
was invited to
ENDORSEMENTS
"In these challenging times, we need an advocacy think tank like
Commonweal Institute to communicate our principles and programs in ways that
will resonate with the broad public and empower citizens to take a more active
role in our democracy. Commonweal takes a strategic approach to advancing
issues in a way that will help decision-makers be proactive in confronting the
challenges of the future." -- Congresswoman Nancy Pelosi, D-San Francisco,
8th CD-CA, Democratic Leader of the House of Representatives
GET INVOLVED
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