The Bible, the Constitution, and a Great Text’s Need for Constant & Open Interpretation


Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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185 Responses

  1. Avatar BlaiseP says:

    The Seventh Day Adventists were among the strongest proponents of Nazism and Hitler. They were also great publishers of antisemitic materials. Their wretched example shows what happens when we turn over our consciences to Authority Figures.Report

    • Avatar Cermet says:

      But there really were weapons of mass destruction … all the media agreed, the intelligence people (if they were to stay employed) used whatever they could find to support it, and anyone who dared to disagree were just a hippy extremist – ask bush’s puppet master, cheny. For further proof, ask the Pope if the church should turn over known pedophiles – their own internal documents clearly say no (in all fairness, most Protestant church’s have their issues too but they are smaller organizations and not so monolithic so the incidents tend to be more isolated) – see, trust in authority.Report

    • Avatar rocrod says:

      Mr. BlaiseP, I read the link you referred to on your comment. Although it supports your statement it also makes a big difference between “all” Adventists and the German “Adventist leaders” as it states;

      ” The Adventist leaders “issued directives to prevent the Reformers from joining the Adventist Church.”[31] And they expelled Adventists who had a Jewish background from the Church.[32] The Adventists were unwilling to even protect their own members if they thought the Nazi government would disapprove… This is not to say that individual Adventists did not help Jews or other undesirables. The Adventists were notable, for the private and individual help they gave to Jews, for not only were Jewish converts cared for and hidden, as they were in some other sectarian and church circles, but help was also given to unbaptised Jews with whom Adventists happened to come in contact.[33]”

      I understand that it is most common to utilize general terms, as did Corrie Schroder in the article you quoted, when trying to make observations, however, it is clear that leaders did make horrible choices but to state that “The Seventh Day Adventist” as a whole did it puts every person in the pot. I think it is a dangerous thinking to classify all because of some. That would be the same if we use that all Germans are Nazis, or all Southerners are slave-owners, etc., etc. We must do our very best to make the responsible persons the focus of our comments and those responsible to justice. I like the link you posted because I was able to discern the difference between all Adventists and those particular leaders that harmed innocent people, thanks.Report

      • Avatar BlaiseP says:

        Any sentence which contains “but” might as well start with “No.” I have put forward the facts of the matter: German SDA leadership backed the Third Reich. If a few notable exceptions appear, it should be noted SDA turned on their own.

        My point is clear enough: this sort of thing happens when people put their faith in Authority Figures and Leaders. We would all like to enjoy the pleasant little fantasy of ourselves as sovereign and autonomous agents in this world. It simply isn’t true. We act on our beliefs and those are seldom ones we invented for ourselves. Bob Dylan once said “Gotta Serve Somebody” but we do have a choice in the matter of whom we serve.Report

        • Avatar rocrod says:

          It is a known fact that leaders do lead and other do follow, the point remains that not “all.” We do need to keep balance and that is one tough thing to master.Report

          • Avatar BlaiseP says:

            Heh. As Excitable Andy has as his motto: “To see what is in front of one’s nose needs a constant struggle” — George OrwellReport

  2. Avatar Snarky McSnarksnark says:

    Well said, Tod.

    It is no mistake that our constitution–and even more particularly, the Bill of Rights– is full of terms that are culturally defined: “well regulated,” “secure,” “probable cause,” “infamous crime,” “speedy.. trial,” “excessive bail,” “cruel and unusual punishment,” etc.

    These are ideas that evolve from culture to culture, and change over time. And the framers were not idiots in creating such “squishy” standards for our basic rights. That’s why I think constitutional originalism is a fools errand: who cares what a “speedy trial” was in 1789?

    Instead, the constitution is a statement of principles, not a series of invariant commandments. Otherwise, our constitution would not have weathered the transition from an agrarian, slave-holding post-colonial nation to the modern, industrial, technological superpower it is today.Report

    • Avatar Tom Van Dyke says:

      Unlike the Bible, the Constitution can be amended, and was, particularly in favor of blacks and women. And FTR, leaving the door open to ban the slave trade in 20 years [Article 1, section 9, which few are aware of] is a tacit admission there’s something wrong with slavery.

      Mr. McS has a good point

      It is no mistake that our constitution–and even more particularly, the Bill of Rights– is full of terms that are culturally defined: “well regulated,” “secure,” “probable cause,” “infamous crime,” “speedy.. trial,” “excessive bail,” “cruel and unusual punishment,” etc.

      but I dunno if such questions of degree should be exploited into a difference in kind. Outlawing capital punishment by judicial fiat under “cruel and unusual’ overshoots the flexibility the Constitution intended to allow.

      As for the Alien and Sedition acts, the “alien’ part is still on the books; the most constitutional scolars agree that the “Sedition’ part of Adams and the Federalists would not have stood up to judicial review had it ever been heard by the Supreme ourt. [The law sunsetted, Jefferson pardoned those convicted under it. It went away.]

      As for the Bible, yes, there are sects like the Adventists that go off, but Protestantism has more been marked by periodic rejections of dogma and doctrine in favor of a “restoration.” Luther, The two Great Awakenings, Stone-Campbell Movement [BHO’s erstwhile Church of Christ is one], and in the early 20th century, fundamentalism, all reactions to “liberal” heterodoxy.

      As for the future of the American “mainline’ churches [Presbyterian, Episcopal, etc.], which are plunging into heterodoxy, we shall see. Membership trends are way down, restorationist evangelicalism way up.

      It seems to me that orthodoxy is self-renewing, and not just in Protestantism: The nuns now battling the Vatican average 60-70 years old. Their younger successors joined the convent precisely for its orthodoxy, and from what I gather are happy the Vatican is restoring orthodoxy to the American church.

      And the free-thinkers of American Christianity, the famous Unitarians [God is One, and Jesus ain’t God] of the Founding era, had their day in the sun, but by 1960 had shrunk so much they had to merge with the Universalists, who are a different theology. Today, UUs don’t even have to believe in god, so we’re getting into No True Scotsman territory.

      ” Where orthodoxy is optional, orthodoxy will sooner or later be proscribed. “
      —Neuhaus’ LawReport

      • Avatar Will Truman says:

        As for the future of the American “mainline’ churches [Presbyterian, Episcopal, etc.], which are plunging into heterodoxy, we shall see. Membership trends are way down, restorationist evangelicalism way up.

        I was going to mention something along these lines. It doesn’t undermine Tod’s point, but it is nonetheless worth noting that the really flexible churches have been struggling. When the mainlines have split, as far as I know it’s been the more conservative congregations that have had more success (if one is counting by membership numbers).

        That being said, it’s unclear how much of this applies to constitutional ideology. One of the reasons that the more open-minded churches have struggled with membership is that people tend to drift towards one of two directions: conservative adherence or dropping out altogether. I don’t know that there is a counterpart on the constitutional side of things.Report

      • Avatar Tod Kelly says:

        “And FTR, leaving the door open to ban the slave trade in 20 years [Article 1, section 9, which few are aware of] is a tacit admission there’s something wrong with slavery.”

        Yeah – you know what was a pretty tacit admission that there wasn’t? Allowing it.

        The sedition acts, as well as the jailing of the Aurora editors, may or may not have been found unconstitutional – especially since they occurred prior to Maybury, and there was no judicial review yet. (Which itself is a great example of that even in the founders’ time they did not view everything to be clearly written in black and white, since their founding document never gave the courts the power of judicial review.)

        “Membership trends are way down, restorationist evangelicalism way up.”

        This is absolutely true, although one of the effects of this is that evangelicalism is now further schisming and changing from the inside. That is the obvious outcome in Protestantism, where self review of texts that are as rich and diverse as the Bible is a staple of faith.Report

        • Avatar Tom Van Dyke says:

          Support for a “living Constitution” among the Founders is wanting.

          On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.

          If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.

          I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.Report

          • Avatar Stillwater says:

            But what does it mean to say that it isn’t a living constitution, Tom? Clearly the SCs thru the ages, Congress and the Executive for 200 years, state governments, citizens, all view the current practices of the US as being legally justified, as being grounded in Constitutional principles as set for the by the SC. I mean, all the evidence of this (once) great nation is that the constitution is a living document.

            I mean, if I can ask this question without conveying any snark or cynicism, why should I care what the founders wanted? Especially when all the contemporary policies and practices are deemed constitutional? Why should I prefer you’re view of the constitution over mine? Don’t you have to argue that you’re conception leads to better consequences? For me as well as you?Report

            • Avatar Stillwater says:

              Garbled. Acourse. Also, “consequences” ought to be “outcomes” in that last sentence.Report

              • Avatar Tom Van Dyke says:

                At least you acknowledge ignoring the Founders, as opposed to claiming them for your side. That’s a start and a needed piece of honesty and clarity here.

                Now you’re on your own, without cover of the Founders or the Constitution itself.

                The problem is that if the Constitution is some sort of “social contract,” you’re unilaterally changing the meaning of the contract with this “living” business. That makes zero sense on any level, and is inherently illegitimate. And so, as Mr. Madison said, the meaning to its ratifiers—signatories—“the sense attached to it by the people in their respective State Conventions [is] where it recd. all the authority which it possesses.”

                Change the contract, its meaning, and it is illegitimate, it has lost any authority it possesses. This is basic political philosophy, and applies to any constitution.

                [The quotes I listed above w/o quote marks are Jefferson, Washington and Madison, respectively.]Report

              • Avatar Stillwater says:

                Well, I was hoping for something a little more substantive. Eg

                …without cover of the Founders or the Constitution itself.

                just begs the question asked, since I’m expressly accepting the Constitution. The question was why should I give a damn about the founders!

                And this

                Change the contract, its meaning, and it is illegitimate, it has lost any authority it possesses.

                seems to skip over some things as well, since my argument is that the constitution currently has whatever authority it initially possessed: it now, as then and intended, circumscribes the limits of the legally permissible.

                I admit, Tom, I really can’t figure out your argument here.Report

              • Avatar Tom Van Dyke says:

                I admit, Tom, I really can’t figure out your argument here.

                Yes, and that’s the problem, I admit. For you, the Constitution is an obstacle, not your protection. Our civic education has failed.

                That you don’t give a rat’s ass about the Founders or the basis of the Constitution itself is self-evident. But I’ll tellya what—ignore the Constitution left and right and someday you’ll find we’ve been taking our civic peace for granted, that the Constitution means whatever the government says only works for so long.

                It’s true in the sense of Hobbesian brute force, but the functioning of our republic rests on the people accepting its authority.

                Look around the world and you’ll see nations and societies that routinely evade or ignore the law. And when the government itself becomes lawless—and I submit that’s just what “living Constitutionalism” is, unilaterally rewriting the terms of the agreement between the people and the government—you’ll find that societies function far more on respect for the law than the content of the laws themselves.

                So that’s long answer to your patent disdain for the Constitution. The short answer is that The People are paying new attention to what’s in the Constitution, and may stop you yet.

                Or perhaps the majority of us are like the Eurosheep, and will sell you their freedom for free contraceptives. We’ll see.Report

              • Avatar Kazzy says:

                So who decides what the Founders intended, what the originalist interpretation ought to be? Ayone who can do that by the standards set forth are long dead…Report

              • Avatar Tom Van Dyke says:

                “Living Constitutionalism” doesn’t care, so the question’s moot.Report

              • Avatar Jaybird says:

                We have questions lingering over whether the government should have the power to prevent people from buying movies with political content.

                Despite the First Amendment.Report

              • Avatar Stillwater says:

                Thanks for you time Tom. Good talk.Report

              • Avatar Tom Van Dyke says:

                That’s interesting, Jaybird. Sounds ominous.Report

              • Avatar Tod Kelly says:

                I find it interesting, Tom, that in the question of interpreting the Constitution you divide up people into groups of either agreeing with you, or having disdain or contempt for the document.

                Are you really not able to consider the possibility that there are more than those two choices?Report

              • Avatar Kazzy says:

                I am not a living Constitutionalist. As such, the question is anything but moot.

                I am of two minds on the Constitution… “Interpreting” the document is dangerous. While a certain amount of interpretation is necessary, the amount that is indulged in concerns me. On the other hand, the document is obscenely outdated and, rather than attempt to interpret it, part of me would prefer to rip it up and start anew. To me, living constitutionalism seems to attempt to split the difference between these two minds and I’m not sure it does a good job of it.

                That being said, I still struggle with the question offered above, since I think that is fundamental to any “originalist” approach.Report

              • Avatar Jaybird says:

                I would be *FINE* if we got together and ripped up the Constitution and rewrote a new one.

                All I’d ask is that we have a Constitutional Convention and agree that that’s what we want to do *FIRST*.Report

              • Avatar Stillwater says:

                The tree of liberty must be sprinkled from time to time with the confetti of a shredded constitution.Report

              • Avatar Kazzy says:


                Done. My house. Sunday evening. 7PM. I’ll supply pizza and beer. Everyone else can bring whatever they need.

                LeagueFest 2.0… where the Constitution got shredded!

                (That second part sounds like the subtitle of a Nic Cage movie…)Report

              • Avatar Will Truman says:

                Jaybird, I totally get where you are coming from this. Then I think about what we would do if we were rebuilding a constitution from scratch. Then I think the illusions and fictions are not the worst possible thing.Report

              • Avatar Stillwater says:

                Kazzy, I’m in. I’ll bring some beer and the first principles.Report

              • Avatar Kazzy says:


                Why not do both at once?


              • Avatar Glyph says:

                Hi Tom,

                I agree with you on substance here.

                But is it necessary to be quite so abrasive about it, what with the ‘rat’s ass’ and ‘Eurosheep’ asides? Isn’t it enough to be eloquent, and correct on the merits (‘cos I think you are here)?

                If one wants to persuade people of the rightness of an idea, it is usually best to be patient, and tireless; calm and kind too.

                And before anyone responds that no one has ever changed anyone’s mind on an internet forum, let me say, it can and does happen, even on fairly big issues, because it has happened to me.

                Not right away; but over time, well-made arguments and real-world examples can accumulate a weight that can shift someone’s views, sometimes by a few degrees, and sometimes eventually to a distant new endpoint.

                If we want to change the world, all we need to do is shift enough someones far enough along to a new vector.

                This shifting rarely happens when people feel like they are being insulted or dismissed.

                You don’t know me from Adam, I have no doubt you’re smarter than me, you’re a good writer, and it’s totally cool if you want to ignore this. No insult or offense is intended, and like I say, I agree with the thrust of your comments on this topic.

                Having to argue something over and over that just seems ‘so…freakin’…OBVIOUS’ to some of us can be frustrating, no doubt .

                I just think you’d catch more flies with honey, and all that.Report

              • Avatar Tom Van Dyke says:

                Mr. Glyph, you are of course correct. I’ll go back to being my usual cheerfully masochistic self before long, rest assured, but it is worthy of note that at the bottom of all this is, “the Founders be damned.” It’s good to see some folks ‘fess up.

                To the issue, the constitutional amendment process is already in place, making “living constitutionalism” unnecessary on its face and illegitimate for reasons given above.

                Just now, I think 4 votes on the Court and the executive branch as well are proceeding as though we don’t have a constitution, and do as they please. It is my hope that this will not stand.Report

              • Avatar BlaiseP says:

                The Founders were damned in their own lifetimes. Their Revolution had created a great bastion for the perpetuation of slavery. Lafayette wrote angrily: “I never would have drawn my sword in the cause of America if I could have conceived that thereby I was helping to found a nation of slaves”

                There are your precious Founders.Report

              • Avatar Tod Kelly says:

                Tom, I’m not sure what you’re responding to, exactly. I do not believe that the founders should be “damned;” I believe for what they accomplished they should be rightly and justly revered. However, neither do I think that they were deities; nor do I believe they created a finished product. I’m not entirely sure how that belief gets translated by you as my saying to Hell with them.

                As to amendments, I’m still not sure how that works – perhaps you can explain it. How does one amend the right to free speech, for example? The only way I can think of doing so from the way that it was written is to narrow it. But history has shown that by tackling the subject seriously, without amending it, our right to free speech as actually been significantly broadened.

                My question for you is, is that broadening a bad thing? Should we have kept that right as limited as it was obviously originally intended? Or should we have amended it to be more broad – and if so, how would we have written an amendment that was more broad than the original text?

                Our differences aren’t that one of us loves the Constitution and one of us loathes it. Our difference is that one of us sees a weak document that was started from a place of great freedom, and has gradually seen that freedom evaporate as it has been powerless to keep the basic whims of men in check. The other sees a very strong document, that has survived a myriad of changes the founders never dreamed, and has allowed some freedoms to be increased, and some to be diminished, back and forth like a pendulum over a 200 year span.

                There is no one here damning the Constitution, or the founders.Report

              • Avatar Tom Van Dyke says:

                You’re kidding, right, Tod?Report

              • Avatar Glyph says:

                With apologies to Brandon Berg, who has pointed out in the past that extended analogies are almost always unhelpful 🙂 –

                Let’s say your ISP sends you a mail that says, we are installing a new product on our infrastructure.

                This product, an amazing new hardware/software hybrid with a team of crack programmers, security experts and administrators running its day to day operations, was developed by unprecedented collaboration between Microsoft, Apple and Google.

                This new product has the ability to block all known computer viruses and malware on every computer connected through us. Further, it will reach into your system at home, and scrub any that are already present, and restore your system to correct function, with no action from you.

                For any future variants, they will be quickly identified, and these will also be blocked, & scrubbed from all infected computers, with no action required from you.

                Additionally, it also does auto-backups, and can predict hard drive failure (it even has the ability to prevent and repair some of these!) so downtime is reduced or eliminated entirely.

                No one’s data *ever* need be lost again, just because you lacked adequate protection!

                The only catch is that this product *must* be applied to all our customers; if any were to opt-out, it will not function for anyone.

                Accordingly, your service, which previously was $50/month per your contract, will increase to $100/month next month. There are a lot of infected computers to scrub, and progress doesn’t come cheap.

                It does not matter what current anti-virus software you have, nor your firewall protections or computer setup/configuration, or your personal habits with opening e-mail attachments or visiting the more, um’ ‘adult’ websites. This rate increase, and use of this new product, is non-negotiable.

                Further, you will not find reference to this new product and its terms in the main body of your contract with us, but somewhere in the dozens of add-on EULA pages.

                These terms & rates are subject to future revision, as rates of current infection and future attack become better understood, or vary with time. Your bill may vary accordingly.

                Should this rankle? I mean, this product might be a great deal. I might really want/need it. But what if I don’t want/need it, or not at that price?

                Further, what if this new product has the unwanted side-effect of discouraging innovation – many new sites and apps get flagged as malware, and must go through a lengthy review process to be vetted, increasing development costs and time to market, while decreasing profitability to the developers, and utility of my ISP to me? Some of these new apps would really help people (though some are, in fact, malware).

                And bear in mind that this analogy is far less serious in the long run, since I can simply find another ISP if I don’t agree to this; this was, after all, just a regular commercial contract, that I personally agreed to, and I have other ISP options.

                But when the ‘contract’ is instead a piece of paper several hundred years old, with an entity that can legally imprison or shoot me, containing terms I personally did not agree to, and I can’t exactly easily move to Somalia or Canada – well, comporting with that contract as written and using our best understanding of its original intent, in a minimalist fashion, explicitly amending that contract if the need is there and all parties agree, seems a safer course of action.

                IOW, as Tom argues, the limitations/enumerations are indeed a protection and a bulwark, and all the more important than a ‘regular’ contract, given time (the original signatories are all dead) & the relationship of the individual to the state.Report

              • Avatar Tod Kelly says:

                I actually think that’s a good analogy, Glyph, and well laid out. And yet I still don’t agree with it. To quote myself from a few comments down, I think a better analogy is an employee manual:

                “For example: My company’s employee manual is very, very specific about what an employee at our firm can and cannot do. It is very specifically made to be what an Originalist might want our Constitution to be: a black and white list of specific instructions you cannot ever deviate from. It works fine for its intended purpose, but its intended purpose isn’t to help cultivate a great company or to challenge our employees to do better – it’s purpose is to be a defense if any of them should ever decide to sue us.

                The Constitution, with its ambiguously and overly broad phrasing, does the opposite. As I said in the OP, it forces us to constantly grapple with what it means to have freedom of speech, or religion, or the press. It doesn’t act as a parent of a five year old and spell out what the common good is; it makes us have that conversation ourselves.

                I think that the great religious texts do exactly the same. You can revere them, and you can revere those that came before you that revered them, but when the rubber hits the road you’re going to have to sit down and decide for yourself what the commandment “Thou shalt not kill” really means. Does it mean that aborting a fetus is wrong, but that bombing the crap out of Iran should be done post haste? Does it mean that we only kill those that have killed others? Does it mean we don’t kill rapists, but we enact laws that allow us to pull the plug on our loved ones if their time of life reaches a certain place they cannot come back from?

                That we have to grapple with these questions ourselves, and not simply take the word of a textual scholar who tells us what the words are “supposed” to mean is what makes these texts Great, and it’s what has allowed them to survive the test of time.”Report

              • Avatar Glyph says:

                Tod, the differences are twofold: first, as you note, the Company P & P’s purpose is to protect ‘them’, not ‘you’, whereas the Constitution is there to protect ‘us’ (the individual) by laying out fairly explicitly what ‘they’ (the state) can do – so your analogy seems to break right away, unless I misunderstand your point?

                Second, you got a copy of the Company’s P & P when you started work there as a contract-signing adult, and had the chance to not work there if you did not like their terms – you personally agreed to those terms. If the terms change in a fairly major way after the fact, in a way that you disagree with, changing your relationship to the company (even if benefiting many other employees), well, finding a new job, while non-trivial, is usually an option for you. Not so with finding a new country.

                Last, I agree a certain amount of interpretation is necessary and desirable. But as Tom & Kazzy have alluded to elsewhere, to some of us it appears we are now regularly moving from doing so in differences of degree, to differences in kind.

                I don’t even necessarily disagree with all the actions themselves, maybe I personally like some of them – but just as the ACLU stands up for unpopular speech because the 1st says we must, leads to some things I don’t personally like (say, the existence of Illinois Nazis), we need to stand up for freedom from the exercise of unenumerated powers (see also: WOD), even when that freedom leads to things I don’t personally like (some people sick & dying).

                Put another way, the govt. can clearly compel me to buy tanks, because nat’l defense is clearly in their job description (though not for personal use, and maybe we don’t need so many). But compel me to buy insurance from a private party? I am just not seeing it.

                And just to further make myself look like a true simpleton, I believe slippery slopes do exist, and I wonder what comes next. 🙂

                If we are moving well beyond enumerated powers on a regular basis, maybe it is time to amend the Constitution, or start over with a new one, because the contract as written just isn’t doing it for us anymore. Because if we otherwise go so far that enough people feel the ‘contract’ as written and intended has been entirely broken, we are in for trouble.

                It doesn’t have to do with any particular veneration for the Founders (though I do think they were smart dudes), it’s just common sense and how many of us instinctively understand a ‘contract’.

                I should have said – I really did like your piece, it was beautifully written and did get me thinking, and I appreciate the reply.Report

              • Avatar Tod Kelly says:

                Thanks for the thoughts.

                I will confess that I think the mandate is a hinkey issue. It seems depressingly cumbersome and inefficient; ironically it’s only the supposed success of Romneycare in MA that makes me not cry out loud and dismiss it out of hand.

                So I do have problems with it, but none of them have to do with the Constitutionality of the law. I’m not even sure I totally understand the objection: The government has the right to take over the entire industry by way of a single payer through taxation, but it doesn’t have the power to create a system that accomplishes the same end goal but allows private insurers to still exist, and consumers to have a choice about which to purchase from? I have a hard time seeing how the latter is tyranny and the former is simply bad policy. The Constitutional objections seem to me to be ways of looking for a technicality, but I am admittedly perhaps to close to this subject to be entirely objective.

                (I should also say that in general I think the Constitution is make to protect people, but I don’t think its purpose is to protect them against bad legislation. As I said in my earlier piece, I think the right would have been better served making a better case on why the law was bad public policy and what they might do to improve it, rather than put so many eggs in the SCOTUS basket.)Report

              • Avatar Glyph says:

                Hi Tod, in re: the right’s utter failure to come up with any alternatives or modifications, no argument from me there, as I also stated on one of yr earlier pieces:



                from yr last comment “…The government has the right to take over the entire industry by way of a single payer…”. Well, no. I would object to this as well, and on similar grounds.

                That I am not doing so here is because 1.) That isn’t what we currently have, so I am not gonna argue against it right now, and 2.) On purely pragmatic grounds, I think single-payer is probably a less bad solution than the one we got, so I’d feel less strongly about it. I still think it would probably eventually stifle innovation, and people will die from that, but it seems to work otherwise mostly OK elsewhere; and it’s not like rationing care doesn’t and won’t happen under any system that isn’t run on pixie dust.

                But maybe you’re right. Whether (as Tom seems to think) people just don’t care about the Constitution anymore, or (as you & many others think) it’s at least grey area enough to work, then pragmatic grounds are surely the best ones to argue from if you want to convince people.

                But it just makes me wonder – why have our Constitution then? Why enumerate powers in the doc at all, instead just providing the govt’s structure itself? Why not just write, Pres. is executive, Congress makes the laws, Sup. Court is the judge, we’re outta here, the rest is on y’all, let’s get lunch? The dang thing could be even shorter than it is.Report

              • Avatar Tod Kelly says:

                “But it just makes me wonder – why have our Constitution then? Why enumerate powers in the doc at all, instead just providing the govt’s structure itself? Why not just write, Pres. is executive, Congress makes the laws, Sup. Court is the judge, we’re outta here, the rest is on y’all, let’s get lunch?”

                This is an excellent question, and probably one deserving of its own post, or even a guest post (hint hint).

                I recognize that my response would most assuredly not be what the founders had in mind, but here is a very short version anyway:

                I think that there is an inherent tension in the Constitution between the writers wanting to provide very specific rights and limitations, and the inability of those instructions to stand up to multiple readers and situations and remain pure. And I think this tension is a good thing. So while I do not advocate treating the Constitution as a tech manual (to take your feel laid out example), I also don’t advocate having its reading be a free for all.

                To stay on the freedom of speech thang, I don’t believe that having a very specific amendment rather than an ambiguous one would have worked over time. On the other hand, I think having it there is completely necessary in order for us as a people to grow and better ourselves. I like having us live in that in-between place; I think that’s where greatness lies. I believe we become great not by having that right given to us, but by accepting it’s value and working to decipher what it means. As I said in the OP, the founders would be rolling over in their graves if they knew what kind of ideas, language, and government criticism people get away with in today’s age; but we wouldn’t have gotten here without them putting that right in its beautifully ambiguous writing.

                And I’m certainly not advocating that anything that we can agree to should be allowed. For example, if there’s a single area where I do fear erosion of the Constitution it isn’t that, say, the government is allowing us to use it to have safety nets for the old, poor or infirm. Rather, I worry about those areas where we seems one moving away from the inherent checks and balances of the system – specifically in the sphere of executive power. It’s one of the few “slippery slopes” that I actually worry about, since both party’s seem to want to allow this disparity to grow in the hopes that they might hold the reigns every four or eight years.Report

              • Avatar Stillwater says:

                why have our Constitution then? Why enumerate powers in the doc at all, instead just providing the govt’s structure itself?

                For the same reason the Founders did: to have checks and balances, separation of power, formal rules that act as constraints which can only be abridged by meeting a burden of justification, etc etc. It set’s up the rules of the game.

                The fundamental purpose and justification of the constitution isn’t what’s being disputed here. It’s the idea that there is a determinate meaning of the provisions in the constitution, or that there is a singular purpose intended by them (gleaned by blurring your eyes in a deep meditative state) but which failed to be expressed by the actual text.Report

              • Avatar Glyph says:

                Hi Stillwater, let’s riff on ‘rules of the game’ for a minute.

                So we are playing soccer, and I take a shot that appears to be going high for a miss, but banks unexpectedly off a pesky seagull that has been hanging around, and into the goal.

                The ref, after consulting his little book, can’t see anything that would preclude banking off a seagull into the goal, but random Acts of Seagull of this type aren’t really covered either (NOTE: I have no idea whether any of this is really true in the rules of soccer, so just take any situation not explicitly covered by a given game’s rules).

                Whether the goal counts (it went in), or not (interference), either the way the ref rules is ‘constitutional’ in accordance with the rules. A grey area, and he is the decider. Most people can live with his decision.

                But let’s say he wants to get home early, and so he decides, ‘this little rule book *doesn’t* say that bird-banks are *not* worth 10 points; or immediate forfeit’, or something more or less radical – something even farther outside the way the game has generally, traditionally been played up to that point.

                At that point, he is acting ‘unconstitutionally’, no? If we want bird-banks to be worth 10 points, let’s get FIFA to write it down in the little rule-book.Report

              • Avatar Stillwater says:

                How about a more practical example. Suppose that the guy from England kicks a ball from outside the penalty box that hits the cross bar and lands behind the line, but bounces back into play so quickly that the refs missed the call. Should instant replay be introduced into the game to make sure these kinds of mistakes don’t happen?

                Well, no, of course not. The Rules of the Game clearly say that the referee on the field is the only one who can make that determination. If we change that rule, where will it end? Will balls bouncing off of seagulls be allowed to stand?Report

              • Avatar Glyph says:

                Hi Stillwater, I was away for a few, and then had to read yr comment a couple times to get yr point (not yr fault, I am pretty tired today).

                But, I think your analogy is, if possible, worse than mine :-).

                Instant replay is, A.) an observation, not an action – no, we are not playing Schroedinger’s soccer here, B.) assuming the ref still views it & makes the call, a technology which augments human vision, to allow the more accurate and just application of the *extant* rules, and C.) at this point a well-known and established tool in many sports, its workings tested, understood and uncontroversial.

                I don’t really see it as an application of new rules, or a fundamental reworking of the game, or the relationship of the ref to the players.

                But I think the very fact that lots of smart people wondered about PPACA, ‘Is it a tax? Is it a penalty? Can the Fed force people to buy a product from a private party?’ shows that PPACA is much more unique than this.

                Anyway you slice it, it is something pretty brand new (Romenycare excepted) and I think more caution was warranted.

                I think the concept of enumerated powers is there for a reason, and though PPACA is not the first overreach, not by a long shot, nor is it the worst, not by a VERY long shot (it will have to work real hard to ever overtake the WOD there), it’s disingenuous to pretend that it’s no big deal.

                I really hope I am wrong. I agree we have a problem w/r/t affordable basic health care, and it would be nice if for once things turn out better than I expect.

                But even if they do – I still think it was the wrong way to go about doing it. 🙂Report

              • Avatar Tom Van Dyke says:

                Why pick on me when sophistry and h8ting are right on this thread? I don’t get you sometimes.

                Besides the h8ting, I cite quotes fro Jefferson, Madison and Washington that pass without the least acknowledgement, as well as a valid argument that the government unilaterally rewriting the terms of our social contract to be illegitimate, if “legitimate”means lawful in any sense?

                What has your counterargument been besides accusing me of some sort of intolerance? I don’t get you, brother.Report

              • Avatar Tod Kelly says:

                “I don’t get you, brother.”

                I think this is going both ways.

                “Why pick on me when sophistry and h8ting are right on this thread? I don’t get you sometimes.”

                You’re commenting on the threads of my post that I’m wrong. Which is a GOOD thing, don’t get me wrong – part of the very reason I post is to have people with differing opinions help me figure things out better than I do on my own. Especially when that person is you, you being one of the most well read people I know. By my responding to your criticisms of my post should not be seen as picking on you.

                Also, fwiw, you need to stop assuming that people that don’t agree with you are practicing sophistry. Most of the time it isn’t that they know you’re right but are pretending otherwise, it’s that they genuinely, honestly don’t agree with you.

                And I didn’t say you were intolerant, I said your accession that I wanted the founders to be damned was way off the mark.

                As for the rest of the actual argument about legitimacy, I’m not sure that I am understanding the argument, but I’d like to.Report

              • Avatar Tom Van Dyke says:

                To the legitimacy of the Constitution, again: as Mr. Madison said, the meaning to its ratifiers—signatories—”the sense attached to it by the people in their respective State Conventions [is] where it recd. all the authority which it possesses.”

                Change the contract, its meaning, and it is illegitimate, it has lost any authority it possesses. This is basic political philosophy, and applies to any constitution.

                As for sophistry, it’s usually the manipulation of words, exploiting their multiple meanings. If one’s argument only works when stated a certain way, it’s probably sophistic.

                In the current crisis, that is often “freedom,” which used to mean liberty, but since FDR’s Four Freedoms—especially “Freedom from Want”—“freedom” could mean almost any government program and then having a right to it.

                The Right to Free Wi-Fi, as we often put it around here.

                As for the question of the Founders and their view of “originalist” interpretation, if one thinks the Founders have no standing in the question, fine. Let’s just be open and honest about it, that the Founders are irrelevant, and we’ll do whatever we want with their Constitution, because they’re dead and now it’s ours.

                Which is fine. But let’s be straight-up about what we’re doing. We’re pitching the Founders [the slaveholding bastards], redefining liberty, and rewriting our social contract on the fly.

                I object, for reasons given.Report

              • Avatar Stillwater says:

                Tom, this quote is from the same letter:

                “the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, …

                Even Madison agrees with (the view you ungenerously attributed to) me!Report

              • Avatar Stillwater says:

                Btw, I find it amusing that you accuse other people of sophistry while selectively editing a quotation.Report

              • Avatar Tom Van Dyke says:

                I use that section approvingly all the time for textualism, Mr. Still. Not following you here.

                It is however, a gateway to a more expansive method of interpretation, to wit: if the ratifiers of the 14th Amendment did, could have or should have known that the text of the 14th would or could be read as demanding interracial marriage,


                [1967] is entirely congenial to “originalism.”Report

              • Avatar Stillwater says:

                Tom, I think you’re still failing to see the point being made here: multiple “legitimate meanings” can be derived from the text itself. There is a whole host of them. Interstate commerce, on one understanding of the text permits more federal regulation than you might like given your interpretation.

                But here’s the point of the quote I posted: James Madison thinks that the opinions and intentions of the Founders ought to be viewed as irrelevant wrt arriving at the correct answer.Report

              • Avatar Tod Kelly says:

                “Change the contract, its meaning, and it is illegitimate, it has lost any authority it possesses.”

                The truth is that there is little here that I find I agree with: I do not agree that there was ever a universal agreement with the Constitution’s meaning that has been lost, and I do not agree that society changing it’s view on what the freedom of speech means makes either the Constitution or our system of government illegitimate.

                I would say that it is overstating the case that I believe that the founders have no voice as to what is best for America in 2012. I do believe they should have a voice; I simply do not believe they should have the final say.

                FTR, I don’t hold up things such as slavery or the lack of people who were not allowed to vote as a being an argument that the founders were “bastards.” They were living in the 18th century, for Pete sake; what else could you realistically expect? But I do recognize that despite their brilliance, there were fundamental issues that I think they got wrong from the viewpoint of the 21st century. I actually give them a tremendous amount of credit for putting us on the path that led us to abolishing slavery, women’s suffrage, civil rights, etc. And that’s no small thing. But it does mean that when I hear that the founders knew best, I’m not always convinced that that was the case. But I don’t think they were bastards, anymore than I think my grandparents were bastards for thinking the kind of things about minorities that white northerners typically thought about minorities in the 1920s. I mean, you get that distinction, right?

                As for the rest, I agree with your statements as spoken, but disagree with the semantics – specifically the use of the word “rights.” I do not believe that people have a “right” to workers compensation, or a safety net, or roads. But despite that, I do believe that government is better for taking an active roll in providing them. This, I suspect, will be an area where we won’t agree; but I would argue our disagreement does not indicate that one of our preferred governments is “illegitimate.”Report

              • Avatar Tom Van Dyke says:

                Anything I write on the Constitution has this Madison quote in mind, Mr. Stillwater. The intentions of theFramers are irrelevant, Mr. Stillwater, which is why I also disregard the debates surrounding the 14th Amendment, except as context for what the ratifiers in good faith thought they were ratifying.

                But I’m very happy you’re reading Madison. Whatever it takes. 😉Report

              • Avatar Tom Van Dyke says:

                Tod, there are many things the gov’t provides we agree are good. The question is whether the Constitution demands the gov’t provide them, and this is where we get onto the twisted “rights” trip.

                The Right to Free Wi-Fi.

                Perhaps this would be helpful—the difference between what the Constitution demands and what it permits. I think it often permits both x and y, but seldom demands either. At least in a concept of the Constitution restricting the Leviathan of gov’t to certain enumerated powers, and

                The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                Yes, the Tenth Amendment has rather been a dead letter, but it need not remain so—I’d rather see what’s already in the Constitution revitalized than “Living Constitutionalists” put stuff in that’s not even there.Report

              • Avatar Tod Kelly says:

                I certainly agree that the word “right” is overused and is therefore greatly diluted by common political rhetoric, in the say way I think that the word “freedom” is.Report

              • Avatar Stillwater says:

                Tom, I know you didn’t write that comment to me, but you’re gonna need to explicate core idea quite a bit before it makes any sense whatsoever. Wrt the constitutionality of any policy or program, the issue is whether the constitution permits it. Wrt to the government’s defense of any policy or program, the argument is that the constitution permits it.

                What the constitution demands is only that policies or programs be consistent with constitutional provisions.

                I mean, I must be missing something because what you wrote upthread seems patently false, or confused. (Or I’m confused.)Report

              • Avatar Tom Van Dyke says:

                Tod, to close the circle on the OP [comparing the Bible and the Constitution], it seems to me that most religious schisms are reform movements trying to peel away the accreted crust [of dogma and theologized doctrine] and “get back to basics,” back to the pure form.

                We may yet be seeing a return to the Founders’ constitution, back to the government of the Tenth Amendment, with few and enumerated powers.

                Or mebbe we’ll be more like the Adventists, which takes the germ of Christianity but comes up with what is pretty much a new religion. [Still, they see themselves as the surviving “remnant” of the True Church, so there you go.]

                My own interest in all this is that my study of the Founding and all that stuff is precisely targeted at the concept of “rights.” What I see is a body of “rights” theory and of constitutionalism that sheds the Founders’ understanding of what they created.

                Which is fine, but I think very few people understand what we’re doing, that liberty under “natural law” has been replaced by FDR’s Freedom From Want. That’s a long distance apart.

                There may be a way to reconcile them, but what I see is a Hobbesian power struggle. The Court rules this way, the president signs an executive order that way, the Congress goes some other way. I don’t like this Tower of Babel, and I blame it on our unclarity on rights and on the Constitution.

                Politically, yes, I hope November brings a return from what I consider a creeping lawlessness, where ignoring our Founding principles is permissible because we’re on the side of “right.”

                But let me ‘fess up here and say that much of LBJ’s Great Society was passed bi-partisanly [and/or with a huge Dem congressional majority], and has done a helluva lot of good, and passes my test for Consent of the Governed.

                Tending to our elderly with Medicare is something we can be proud of, and although the War of Poverty has brought much collateral damage, it did permanently knock the poverty rate down from 30% to 20% or less.

                But those solutions are not what’s needed now. Soon we’ll get to my culture bleat, the Moynihan thing. The races are becoming more equally miserable. Hurrah.


              • Avatar Turgid Jacobian says:

                The intentions of theFramers are irrelevant, Mr. Stillwater, which is why I also disregard the debates surrounding the 14th Amendment, except as context for what the ratifiers in good faith thought they were ratifying.

                TVD, the intentions of the ratifiers are an even worse place to start! There were almost 2000 votes in the State conventions.

                The intentions of the Framers (again, a miex bag) are irrelevant and almost inscrutable (so why cite the Federalist papers?). Increase the level of obscurity of those folks significantly to capture the standing of the State convention attendants and do you think we have a better or a worse idea of what “they” thought.

                There’s no they to understand. Just votes yea or nay.Report

              • Avatar Tom Van Dyke says:

                Mr. Turgid, you seem to disagree w/Mr. Madison. Can’t sort out why, except that your thesis seems to be a negation of anything that is, would, or could be said about what the Constitution was meant to mean when it was ratified.

                I reject that, because I don’t argue “original intent” because I reject the idea of silent reservations. I quite agree that one votes yes or no!

                I’m actually arguing parallel to your own lines, but via “informed consent.” The Federalist Papers are exceptional in American “originalist” history, where what we were ratifying was put on the table explicitly.

                “The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”

                And I admit I’m being a bit unfair to Mr. Klein. But not overly unfair. He deserves some beating up for that one. Bigtime.Report

              • Avatar BlaiseP says:

                The UK manages just fine without a constitution. What can be done with a constitution that laws won’t do equally well?Report

              • Avatar Stillwater says:

                Hey, I figured out a better way to ask the question: given that the constitution is understood as it is right now, what argument would you give – without appealing to the Founders – for changing it along your preferred lines?Report

              • Avatar Jaybird says:

                what argument would you give – without appealing to the Founders – for changing it along your preferred lines?

                There is a method for changing it within the Constitution. The Amendment process. One argument might be: “It’s not an impossible process. We’ve done it before. If we can’t do it with your proposed changes, maybe the changes you propose aren’t as good an idea as you think.”Report

              • Avatar Tod Kelly says:

                I’d be curious, then, what how do we determine things like “free speech?” It does not seem an amendment that needs amending as written.

                And yet I would think that you in particular would not be comfortable going back and deciding what the founders would have found acceptable, and deciding that anything going past that the government has the ability to stifle?Report

              • Avatar Stillwater says:

                Oh sure, I agree with the process. But doesn’t it presuppose an interpretation of the constitution as a fixed and immutable set of univocal provisions? Is there such a thing?

                I was thinking about the issue on a more practical level, tho. If the SC’s understanding of the constitution as a living document is what’s led to all sorts of horrible outcomes, then it should be reasonably easy to identify what those horrible outcomes are, and sorta reverse engineer the constitution to – presumably – the exact same originalistic starting points. If so, our current society presents itself as a case study for how to construct a better set of Constitutional interpretations. (You know, the right ones.)Report

              • Avatar Jaybird says:

                I’d be curious, then, what how do we determine things like “free speech?” It does not seem an amendment that needs amending as written.

                Well, let’s read the Amendment together:

                Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

                So… it seems that the Constitution says that the government (well, *CONGRESS*, anyway… do we want to get into Incorporation? We can… but let’s assume that we’re good with not doing that yet) can’t pass laws abridging the freedom of speech.

                So if a law gets passed saying “people can’t talk about X and if we find out that they have been talking about X, we’ll arrest them, try them, and jail them (if they’re found guilty)”, would this be abridging the freedom of speech?

                It seems to me that it’s a lot easier to argue that, yeah, such a law violates the First Amendment than to argue that, well, you can’t yell “Fire!” in a crowded theater (where, presumably, there is no fire and yelling that would cause a riot where people would get hurt) and since we agree that the First Amendment does not protect yelling “Fire!” under those circumstances, therefore we can arrest people who are handing out pamphlets that say that the draft is a violation of the 13th Amendment.

                Not that such hasn’t been argued successfully, mind.Report

              • Avatar Stillwater says:

                I’d role a different way with that. The clause

                make no law … abridging the freedom of speech, or of the press

                already includes restrictions that can be justified as preventing legitimate harms. So freedom of speech is as broad as it can be (fully general!) and no law can be passed which restricts it (makes it less than fully general!) except those justified as preventing harms (like shouting “fire”…).

                The problem, acourse, is determining what constitutes harm. On that, people disagree. Wildly.Report

              • Avatar Mike Schilling says:

                Does the Do Not Call Registry violate the 1st Amendment? If you have a firm opinion on that, can you derive it from the text? Can you demonstrate what the Founders would have thought?

                How about anti-spam laws?Report

              • Avatar Snarky McSnarksnark says:

                I know for an absolute fact that the founding fathers hated unsolicited marketing calls. Especially during dinner time.Report

              • Avatar Mike Schilling says:

                “Dammit, Revere, I’ve told you a million times that I don’t want your commemorative silver Declaration signers set. Now go away. I’m on the Do Not Clap At The Door List, and warning me that the British are coming does not count as a prior business relationship.”Report

              • Avatar Glyph says:

                Mike, that is hilarious. Reminds me of Mr. Show.Report

  3. Avatar Anderson says:

    Good read. Still, though, the bible strikes me as so fundamentally different than the constitution that it’s really hard to compare the two. I don’t think the many, many people and groups who wrote, edited, and re-wrote the bible over hundreds of years had the intent to make the book open to change as society evolved. It was supposed to be the everlasting Word of God. That’s where its power came from. Whereas with the much-simpler constitution of 1788–a document written only once and by a specific group of people whose other writings give us insight into their goals–no such divine qualifications were needed.

    Institutions and important documents have to have some sort of malleability to survive–that’s how Christianity and America have outlasted other religions and nations. I just think the fundamental difference arises, however, in the fact that Christians had to change their interpretations of the bible as a matter of survival (heliocentrism, geology, evolution, historicity of the bible) *despite* the wishes of those who first penned the book. By contrast, the founders had the express intent of their document (slowly) adapting to the vicissitudes of time; why else would they make room for amendments and whatever is “necessary and proper” to “provide for the common defence and the general welfare.” I mean, the Mormons are called creepy by a good chunk of the Christian community for even daring to say that God was still laying claim to new scripture in the 19th century.Report

    • Avatar Tod Kelly says:

      By contrast, the founders had the express intent of their document (slowly) adapting to the vicissitudes of time; why else would they make room for amendments and whatever is “necessary and proper” to “provide for the common defence and the general welfare.”’

      I get where you’re coming from, but I’m not so sure they’re as different as all that. For example, the path that the founders set us on led us to a place where women can fire you from your executive level job, Asians the most admitted to our most populous state’s public universities, and an African American can be the commander in chief for the entire armed forces – even the highest ranking white officers. I feel very confident that this was not what they set in motion to achieve, and would have fought to make sure such a future never occurred. And here we’re just talking about changes in culture over a two hundred year period, as opposed to a two thousand year period.

      I wholeheartedly agree that the founders anticipated the need for government to change as society changed. I’m pretty sure they never thought that would include letting two dudes get married.Report

      • Avatar Anderson says:

        Good point. I just think their intent with the constitution was much more open to change than the intent of the prophets, priests, and, later, emperors, behind the bible. Plus, there’s the perennial problem of clumping “the founders” together as a “they”, a mistake I made. Some of the founders would be less shocked by changing views on sexuality–say, Jefferson or Franklin–than others.Report

      • Avatar BlaiseP says:

        Let’s get our timelines straight here. We have a big confab in the sweltering heat of a Philadelphia summer, the Constitution and the first ten amendments emerge. Oooh-rah. No sooner does an issue of free speech and free assembly arise than it’s crushed. Newspapers are closed, journalists jailed, Alien and Sedition Acts. Washington had packed the Supreme Court with Federalists, nobody even thought to appeal the Alien and Sedition Acts, the outcome would have been a foregone conclusion.

        Tod, if the Constitution changed, it did so after the fact in every single case where it was amended. The worst thing about our Constitution is is ability to be amended in part, not redrafted in total. Case in point: look at how much of our civil rights now hang on the single nail of the Fourteenth Amendment.

        We forced Japan and Germany to redraft their constitutions. We forced Iraq and Afghanistan to do the same. The old coat of the Constitution ought to be honourably retired and a new one drafted upon the basis of what we have learned over the last fifty centuries and more, that mankind can no more be governed by hoary old ideals than he can be fed with pictures of bowls of soup.Report

  4. Avatar Kazzy says:

    “I don’t think the many, many people and groups who wrote, edited, and re-wrote the bible over hundreds of years had the intent to make the book open to change as society evolved. It was supposed to be the everlasting Word of God.”

    Doesn’t the first part of this sentence invalidate the last? How can you write, edit, or rewrite the everlasting Word of God unless you are God (and I don’t mean Ditka).Report

    • Avatar Cermet says:

      But that is exactly what did occur and is so stated by some of those very same writers who wrote those passages/ This applies for all major translations and great conferences that determined what went in or was removed/deleted – these people and those today all clearly claim that God inspired these people and hence these words are Gods words so God did write the words through them. Very straightforward dogma (now that is rare.)Report

      • Avatar Kazzy says:

        So basically… Do what I say amd not what I do? Evenif they stated they were writing the everlasting Word of God, the fact that they were doing it undermines the entire notion of the enterprise, no matter how sincere their belief. Don’t tell me I can’t interpret the bible because someome else’s interpretation declares that I shouldn’t.Report

    • Avatar Stillwater says:

      Joseph Smith lived in a world ruled by the word of God, one that viewed polygamy as immoral, then … presto! … Joseph Smith found himself living in a world ruled by the word of God that viewed polygamy as moral. Yea, even more than moral!Report

      • Avatar Will Truman says:

        This is neither here nor there, but the Book of Mormon itself came down pretty hard against polygamy (it was an exemplar of iniquity, more than once). That was one aspect of Mormonism that was revised later in Doctrines & Covenants (then later revised again).Report

    • Avatar Anderson says:

      Admittedly, I didn’t phrase that well. My point is that those people who wrote down (and transliterated) the oral traditions of the Bible and those groups that choose which gospels to put in the final edition (ala the Council of Nicea) all maintained that they were merely vessels channeling the divine word of God. They never said, contra Hamilton and Madison, “we, as imperfect humans, will make this document flexible to accommodate unexpected future changes in society. ” It’s all about intent. Maybe that makes more sense?Report

      • Avatar Kazzy says:

        It makes sense and I do realize that intent matters. But, as I said above, it is a bit dubious to say one person/group’s interpretation is such that any other interpretations are not even possible, as the document itself is not intended to be interpreted. That in itself is an interpretation if you reject the supposed chaneling they claim to have been engaged in.

        If I reject that and interpret the Bible differntly, am I not a Christian?Report

        • Avatar Tom Van Dyke says:

          Hard to say. Ask Michael Servetus.Report

            • Avatar Tom Van Dyke says:

              The thing about Protestantism is that once it made heresy respectable, the genie was out of the bottle and soon they were killing heretics too. Pretty soon, the Reformation is crawling with Anabaptists, Unitarians, Adventists, whathaveyou.


              • Avatar BlaiseP says:

                The Protestants did nothing of the sort. They punished heresy as they defined it with equal ferocity. The Reformation was crawling with mercenaries and a third of Europe died in wars of religion.Report

              • Avatar Chris says:

                Sometimes I wonder if the 30 Years War is what Christianity is.Report

              • Avatar MikeSchilling says:

                There was a Constitutionalist [1] perspective on the Thirty Years War that’s both horrifying and instructive:

                “Emperor Matthias drove Frederick V and his army out of Bohemia.”

                “As was right and proper, as Bohemia had been a Habsburg possession since 1526,”

                “The Emperor at this point revoked his toleration of Protestants in Bohemia, sending his army to kill, loot, and forcibly convert the survivors to Catholicism.”

                “Distasteful, but Bohemia was in a state of rebellion, and eius regno, eius religio.”

                “He also stripped Frederick of hos Electorate.”

                “He can’t do that! It’s unconstitutional.”

                1. That really is the proper term.Report

              • Avatar MikeSchilling says:

                They punished heresy as they defined it with equal ferocity.

                Which is what Tom said. I’d say the problem isn’t the heresy, it’s the homicidal intolerance, but than again I’m a liberal.Report

          • Avatar Mike Schilling says:

            But don’t ask Thomas More. You won’t like his answer.Report

            • Avatar Kazzy says:

              Any relation to Michael Moore? I tend not to like his answers…

              Or did you mean St. Thomas More? I like those even less, if only because the HR department of the university I went to/worked at was housed in a building named in his honor, and I didn’t get paid as much as I wanted. Jerks.Report

  5. Avatar Mike Schilling says:

    One of the official founders of the Seventh-Day Adventist Church was Ellen Gould White. I’ll bold the Roman numerals in her name (remembering that in the Latin alphabet, “u” and “v” are the same letter, and that “w” would be written “uu”.

    Ellen Govld Vvhite

    L (50) + L (50) + V (5) + L (50) + D (500) + V(5) + V(5) + I(1) = 666

    Making the Nazi connection no surprise.Report

  6. Avatar Will H. says:

    Miller prophesied that the second advent of Jesus Christ would occur on the afternoon of October 22, 1844.

    Compare with this text:

    As of his death in December 1843, Sayyid Kázim had counselled his followers to leave their homes to seek the Mahdi, who, according to his prophecies, would soon appear. One of these followers, named Mullá Husayn, after keeping vigil for forty days in a mosque, travelled to Shiraz, where he met the Báb [Siyyid `Alí Mu?ammad Shírází] . . . .

    On the night of May 22, 1844, Mullá Husayn was invited by the Báb to his home; on that night Mullá Husayn told him that he was searching for the possible successor to Siyyid Kázim, the Promised One. The Báb told Mullá Husayn privately that he was Siyyid Kázim’s successor and the bearer of divine knowledge.

    <a href=""Compare:
    One must judge of search by the standard of the Majnún of Love. It is related that one day they came upon Majnún sifting the dust, and his tears flowing down. They said, “What doest thou?” He said, “I seek for Laylí.” They cried, “Alas for thee! Laylí is of pure spirit, and thou seekest her in the dust!” He said, “I seek her everywhere; haply somewhere I shall find her.”
    (Something of a Nasrudin tale)

    I have a little story for you, and I think you will enjoy it.
    I need to find it first. I would not trouble the telling with my faltering phrases. Only the best for our TodK.

    At every moment he findeth a weighty matter, in every hour he becometh aware of a mystery; for he hath taken his heart away from both worlds, and set out for the Ka‘bih of the Beloved.Report

    • Avatar Tod Kelly says:

      I’m a little embarrassed about how excited I am about you finding this story.Report

      • Avatar Will H. says:

        Your patience is at last rewarded.

        Human life, and the life of communities, is not what it seems. In fact, it follows a pattern evident to some and concealed to others. Again, more than one pattern is moving at a time. Yet men take one part of one pattern and try to weld it with another. They invariably find what they expect, not what is really there.

        Let us consider, for example, three things: the wheat in the field, the water in the stream, and the salt in the mine. This is the condition of natural man; he is a being which is both complete in some senses and has further uses and capacities in further senses.

        Each of the three items is representative here of substances in a state of potentiality. They may remain as they are, or circumstances (and in the case of man, effort) may transform them.

        This is the condition of the First Domain, or state of man.

        In the Second Domain, however, we have a stage in which something further can be done. The wheat, by effort and knowledge, is collected and ground into flour. The water is taken from the stream and stored for a further use. The salt is extracted and refined. This is a Domain of a different activity than the first, which was merely growing. In this Domain, stored knowledge is brought into play.

        The Third Domain can come into being only after the three ingredients, in correct quantity and proportion, have been assembled in a certain place, at a certain time. The salt, water and flour are mixed and kneaded to become dough. When the yeast is brought, a living element is added; and the oven is made ready for the baking of the loaf. This making depends as much upon ‘touch’ as upon stored knowledge.

        Everything will behave in accordance with its situation: and its situation is the Domain in which it was cast.

        If the objective is bread, why talk of salt-making?

        —by Idries ShahReport

        • Avatar Will H. says:

          * That wasn’t really the story that I had in mind, so I had to slip into Plan B**.

          ** I really didn’t have a Plan B***, so I had to formulate on on the fly after about an hour-and-a-half or so.

          *** A Plan B is good to have. Never underestimate the value of a good Plan B– even a Plan B on-the-fly can be of value at times.Report

  7. Avatar Kyle Cupp says:

    I dislike the term “living document,” mainly because the meaning of any text depends in part on the reader who interprets. All read texts are in action. They live, as you say, but living document is a little too redundant for my tastes. Texts don’t give one fixed meaning, but a limited field from which can be developed a plurality of legitimate interpretations.

    I prefer, in reference to texts such as the Bible and the Constitution, to speak of “texts that are lived,” texts around which we structure our lives and which we interpret in light of the lives we live. These texts recreate us as we creatively interpret and apply them.Report

  8. Avatar BlaiseP says:

    There was an old man my grandfather once knew who treated the Bible rather like the I Ching. He’d open it at random to seek guidance for life. It became the basis for one of my father’s favourite jokes. A man opens the Bible, puts his finger on Matthew 27:5 “And Judas went forth and hanged himself”. Closing his Bible up, he tries again. This time his finger lands on Luke 10:33 “Go forth and do thou likewise.”

    For a while, I flirted with Judaism. Learned to read the Torah in Hebrew from my father’s books. It’s not all that hard, armed with Strong’s Concordance and Keil and Delitsch, every single word is translated and fully conjugated. Some kids read the encyclopedia, I did that, too. But being a serious nerd, I read theology.

    The Bible is a book. It’s not a particularly good guide to life. The best picture of how we might be guided by scripture is a copy of the Talmud. In the center of each page is a section of the Torah, surrounded by Talmudic commentary: the record of how the scholars of Judaism have interpreted that text. The Talmud is fascinating, people have devoted their entire lives to its study. But eventually, we have to close the book and live our lives. It doesn’t tell us if abortion is wrong or right, the Talmud says if a man causes a miscarriage there’s a price to pay. But the Talmud goes into the process of life in great detail in the doctrines surrounding ha-nefesh, life and the soul. Even animals’ lives deserve respect and their deaths must be humane.

    But on the ultimate fate of the soul, the Talmud is silent.

    Let’s not get all gooey here. The Constitution is an equally imperfect guide to life. Like the Bible, it hasn’t stood the test of time particularly well. That embarrassing bit of Article IV is still there in Constitution Hall, just like the Torah was explicit about the difference between a Hebrew slave and a Canaanite slave. Nobody’s going to open that case to scrape those words off the parchment. Even Maimonides treats slavery as a fact of life and if he condemned the unjust treatment of slaves, did not seem to have a problem with the institution. And, as usual, there’s the difference between treatment of a Jewish slave and anyone else.

    It’s all bullshit. If there’s anything to be learned from the Torah or the Bible or the Constitution, it will be the dark lessons of historical injustice perpetuated in law. If we are better, we are better despite them, not because of them. Not everything which survives into modern times is an entirely good thing. The only excuses which can be made for any of these documents arise from how we’ve risen above them.

    Kafka observes, as do the scholars of the Talmud, that Adam and Eve were not expelled from the Garden of Eden for eating of the tree of knowledge. They were driven out because having learned of good and evil, they might be trapped in that state by eating of the Tree of Life. Do not look for little scraps of the Constitution or the Bible or the Talmud for justification or you’ll end up the butt of my grandfather’s joke. The truth of the world is all around you.Report

  9. Avatar J.L. Wall says:

    My trouble with the last paragraph is that, if I’m approaching your advice from the perspective of the religious — or at least myself — there is a difference in kind in how I’d approach the Constitution and the Bible. I don’t reserve a certain amount of awe or reverence for the former.

    This isn’t to say that a modern, critical examination of religious texts is incompatible with the religious life. (As Blaise points out above, a pre-modern critical examination has a pretty decent pedigree.) But the religious approach — or at least the religious approach from a religious tradition that looks skeptically at purely individual or purely present interpretation — requires, at least on occasion, meeting the text on its own terms. Those terms, whatever one makes them out to be, are not the terms of (post)-Enlightenment critical study.

    So, for example, we get the case of James Kugel, a practicing orthodox Jew, Harvard professor, and a major academic scholar and critic of the Hebrew Bible — who does not think that the orthodox and academic critical traditions are compatible, or can even necessarily speak to each other, but who believes that both are true and necessarily part of the religious life. (“Both,” perhaps, “are the word of God spoken to Moses at Sinai”? But the Halakha still, I suppose, follows the school of Hillel.) Or the Jewish Theological Seminary. They’ve been dealing with this dilemma in earnest for a long time, though some parts of the orthodox rabbinate are beginning to catch up.

    So yes, examine it as critically and methodically as possible — but that can’t replace, or even necessarily complement, the “old” ways. They both have to co-exist uncomfortably together. I like to think that somewhere in the dissonance there’s something more true than either reading in isolation.Report

    • Avatar RTod says:

      There’s no doubt that the way I approach the Bible would be different from you, since I am a non-believer.

      That being said, I think that I by and large agree with you. This post bit was more of a response to two different conversations I see going on all the time in this country, one revolving around the Bible (specifically, it seems to me; more so than, say, the Torah or the Quran) and one around the Constitution.

      The conversation that I see a lot of liberals and conservatives having is what does each document really mean? It’s my observation that social conservatives (regardless of political affiliation) have a tendency to argue that prior to some point in the relatively recent past, there was a great consensus about what each text said and meant, and that it is only the recent successes of liberalism that has convinced people that there are more than one interpretations. I believe this to be reasoning flawed; more of a “true in one’s heart, but not in reality” if you will.

      This post was my perhaps poor attempt to argue that not only do textual ambiguities exist in our most precious texts, secular or religious, it is in part the ambiguity that makes them great. And more specifically, it is the ambiguity that allows us as people and as a people to strive toward greatness. (The founders or the various authors of the books of the Bible may or may not have meant them to be ambiguous, I could not say.)

      For example: My company’s employee manual is very, very specific about what an employee at our firm can and cannot do. It is very specifically made to be what an Originalist might want our Constitution to be: a black and white list of specific instructions you cannot ever deviate from. It works fine for its intended purpose, but its intended purpose isn’t to help cultivate a great company or to challenge our employees to do better – it’s purpose is to be a defense if any of them should ever decide to sue us.

      The Constitution, with its ambiguously and overly broad phrasing, does the opposite. As I said in the OP, it forces us to constantly grapple with what it means to have freedom of speech, or religion, or the press. It doesn’t act as a parent of a five year old and spell out what the common good is; it makes us have that conversation ourselves.

      I think that the great religious texts do exactly the same. You can revere them, and you can revere those that came before you that revered them, but when the rubber hits the road you’re going to have to sit down and decide for yourself what the commandment “Thou shalt not kill” really means. Does it mean that aborting a fetus is wrong, but that bombing the crap out of Iran should be done post haste? Does it mean that we only kill those that have killed others? Does it mean we don’t kill rapists, but we enact laws that allow us to pull the plug on our loved ones if their time of life reaches a certain place they cannot come back from?

      That we have to grapple with these questions ourselves, and not simply take the word of a textual scholar who tells us what the words are “supposed” to mean is what makes these texts Great, and it’s what has allowed them to survive the test of time.Report

  10. Avatar CK MacLeod says:

    Since I’m late to the discussion, and since the reply chain had reached the dreaded narrows, I’ll put a reply mostly to Mr. Van Dyke, intending to support Mr. Kelly and Stillwater, here.

    Van Dyke twice (at least) says the following:

    Change the contract, its meaning, and it is illegitimate, it has lost any authority it possesses. This is basic political philosophy, and applies to any constitution.

    The “loss of authority” from a “change in meaning” cannot be an absolute and binary process: Such a doctrine would render all contracts and agreements, virtually without exception, null and void from the moment they were completed. The “contract” does not necessarily become absolutely “illegitimate,” or lose “any” of the “authority” it may seem to have possessed due to one or another imperfection. It or some of its provisions may lose some relevance or usefulness. Its legitimacy (or aspects of it) may be put in some question without being overthrown in its entirety. Human affairs are full of such imperfect, inherently disputable, contracts, declarations, treaties, agreements, statutes, and so on, that may remain in effect despite breach or discovered inadequacy or impracticality of particular provisions. If we want the business, or peace, or alliance, or program, or marriage, or divorce, etc., to continue, we carry on “in the spirit” of the text, re-negotiating where necessary and when possible or merely convenient, often refraining from re-opening comprehensive discussions.

    As for the Constitution itself, it could well be that some of its elements simply cannot apply as well or in the same way to the vastly changed circumstances of the republic. Even apart from them, it remains well-established fact that, from the moment of ratification, the Founders and Framers themselves often disagreed profoundly and even violently about matters of interpretation, from the first session of the new congress and forward. Such disagreements likely occasioned the very statements from Madison, Jefferson, and Washington that Mr. Van Dyke presented. In short, from the very first, the normal course of human affairs already implied and produced multiple divergent and even mutually exclusive interpretations of the document’s key provisions.

    In that sense there never was one “meaning” of the text in whole or part. According to Mr. Van Dyke’s logic, that mere fact would already rob the Constitution and the republic of “any” legitimacy or authority, but the Constitution strictly speaking does not possess any authority at all. Authority sprang from and remains with “the People.” Like the Sabbath, the Constitution was made for us, not the other way around. It will be a great irony if the would-be defenders of the Constitution bring the moment of popular, irrevocable rejection closer by insisting on interpretations that are impractical, obsolete, unsustainable, and simply undesirable – in somewhat the same way that religious fanatics can harm the image and interests of their fellow believers.

    As for quotable quotes, I like the following one, in part because both it and the man who wrote it drive the fetishists of the Constitution up the wall, but mostly because it’s simply true (if a bit purple for my tastes):

    Justly revered as our great Constitution is, it could be stripped off and thrown aside like a garment, and the nation would still stand forth in the living vestment of flesh and sinew, warm with the heart-blood of one people, ready to recreate constitutions and laws.

    The same may be true for the “garments” of religious faith, incidentally. However, it is also true that the people, or many people, may find this notion disturbing, and may agree with the fundamentalists of political religion to “close the gates” of interpretation rather than have their faith and all authority continually undermined or seemingly threatened with chaos. That the decision itself may be contrary to the very precepts it is intended to protect may explain much of the madness of religion and politics, yet it still seems less mad to cope, as the OP advises, with ambiguity and the tension it produces at every decision point, than to insist on perfect fidelity to an always already falsified ideal.Report

    • Avatar Stillwater says:

      Good comment.Report

    • Avatar Jason Kuznicki says:

      There’s one problem with this approach, however. While real-world contracts do change a bit here and there, this process is eminently more forgivable when both parties to the contract are still alive, when both actually agreed to the contract, and when either one of them still has the option to sue if the things one side sees as trifling changes don’t really look that way to the other side.

      The Founders are dead. I never agreed to the contract. And if we want to sue, the closest we can get is either a violent revolution or the near-impossible amending process. That’s why we have to be more exacting with the Constitution than with an ordinary contract.Report

      • Avatar Tod Kelly says:

        … and the problem with the former approach is that it assumes a time when there was one single agreed upon meaning, which as CK points out never in fact existed.

        Which means that in either case, you have two parties with different interpretations sparring over which is best.

        Damned if you do….Report

        • Avatar Tom Van Dyke says:

          It’s not that hard to understand. Living Constitutionalists don’t like what it says.

          “The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”

          What a bunch of crap.Report

          • Avatar Tod Kelly says:

            ‘What a bunch of crap’ is right, since I’ve never said that.

            The choices at hand are not:

            A. We should defer to Tom’s interpretation, or

            B. It’s too confusing for me to understand!Report

            • Avatar Tom Van Dyke says:

              Thought y’d recognize the quote, Tod. Ezra Klein. If you disagree w/it fine. Stand up and be counted.

              Justice Ginsburg: ““The notion that it is improper to look beyond the borders of the United States in grappling with hard questions … is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification.

              I am not a partisan of that view. U.S. jurists honor the Framers’ intent ‘to create a more perfect Union,’ I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.”

              Let’s just be clear what we’re talking about, put it out in the open.

              Blaise, self-professed Bible expert, is well aware of Acts 10, which obviates Mosaic—kosher—law.

              About noon the following day as they were on their journey and approaching the city, Peter went up on the roof to pray. He became hungry and wanted something to eat, and while the meal was being prepared, he fell into a trance. He saw heaven opened and something like a large sheet being let down to earth by its four corners. It contained all kinds of four-footed animals, as well as reptiles of the earth and birds of the air. Then a voice told him, “Get up, Peter. Kill and eat.”

              “Surely not, Lord!” Peter replied. “I have never eaten anything impure or unclean.”

              The voice spoke to him a second time, “Do not call anything impure that God has made clean.” Report

              • Avatar Tod Kelly says:

                “Thought y’d recognize the quote, Tod. Ezra Klein.”

                Because surely we run into each other at all the Party Meetings?Report

              • Avatar Tom Van Dyke says:

                Because it’s a notorious quote? I’m giving you a chance to get on the right side of this, that what the Constitution meant when it was ratified isn’t all that impossible to decipher. That argument’s a dodge, and Ezra Klein’s is an amusing version of it.

                “The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”

                Migod. And this guy still has a job.Report

              • Avatar Chris says:

                At this point, the reliance on contextless quotes belies the… vacuity of the position that relies on them.Report

              • Avatar Tod Kelly says:

                I certainly disagree with him; but I also disagree with your point of view.

                The way that the freedom of speech is written isn’t indecipherable. But if the founders themselves couldn’t agree on what the broad language meant when the ink was drying in the 18th century, why does it make the framework illegitimate to not agree with them 200+ years later?Report

          • Avatar BlaiseP says:

            Heh. Eaten any bacon lately, in defiance of Leviticus?Report

      • Avatar Chris says:

        I agree with you somewhere near 100% here, Jason.

        I would only add that the meanings of the words, and our representations of the concepts they denote (or refer, or whatever, depending on your view of these things) have changed as well, making the original meaning of the contract inaccessible, no matter how much someone like Tom pleads otherwise. Tom’s view, which is a common one (I’m not just picking on Tom, or at least not trying to), amounts to little more than wondering at statues.Report

        • Avatar Jason Kuznicki says:

          I would not say that the meaning is inaccessible. I’d say that there are some very fair questions that have arisen over time, and some of them may not have clear answers. Others still do.

          And a third group of questions are clearly of a type that the founders did not consider and could never have considered. In those cases, we have to think much more for ourselves, yes. But we’re not wholly unconstrained, either. For cases like that, we have to consider that the founders had a variety of different societies in mind when they wrote the Constitution. They wanted theirs to be more like some of them, less like others, and not at all like some others. They were setting guidelines, because they knew that trying to exhaust all the details would never work out well, as Tod rightly points out.Report

          • Avatar Chris says:

            Eh, I think they’re inaccessible, because we have modern minds, not just with modern conditions, but with 200 years of conceptual and linguistic evolution that we’re bound to, and which couldn’t have influenced the intentions we’re trying to get at (because influence moves forward in time, not backward). We can do a sort of linguistic and textual archeology, like an historian of philosophy might do with Hume or Wolff, but we’re still interpreting it through a very different lens. The meanings of the words and the representations of the concepts are not fixed, and it only makes sense to refer to the framer’s meaning as a sort of metaphor.Report

      • Avatar Glyph says:

        Hi Jason, this is similar to what I was trying to say in my last 2 paras of my ISP analogy above, but said more pithily.

        That’s why they pay you the big bucks. 🙂

      • Avatar CK MacLeod says:

        The People agreed to the contract, or to be more precise, affirmed it and continue to affirm it through their general obedience and observation of its dictates, participation in its institutions, enjoyment and exploitation of its fruits, and, more important, their sacrifice. Under this concept, the “Popular Sovereign” is transcendent, and provides our access as individuals, up to this day, to that form of transcendence (which is also meaning-creation or realization of meaning). The same complex collective identity allows a state founded on inalienable rights to life, liberty, and happiness to make absolutely contradictory claims on the life, liberty, and happiness of real existing human beings, in the extreme case of war, but also in the regular execution of law. It is therefore unsurprising that many of the most ardent proponents of Constitutionalism as they define it react as though threatened in their very sense of self by this discussion – thus also the paranoid reactions to Obama, the idolization of the Founders, the fetishization of particular customs and symbols. But, back to your original point, to call yourself an American, to claim rights of citizenship, to vote, etc., all manifests a renewal of your “agreement” with the contract. You are born consenting, if you’re a naturalized citizen. If you’re not, then when you become a citizen, you explicitly agree to take up arms if called upon to do so.

        So the parties to the contract are still alive, and actually agree to it up to the moment they or a sufficiently influential group of them, stop doing so, at which there may be Hell of one kind or another to pay. In the meantime, if amendment or alteration of the contract is impractical, yet necessary or desirable, then that would logically call for less, not more exactitude, since it would be exactitude in relation to a broken measure. What it may call for is more care, which isn’t the same thing, which may at the most important instances be the opposite thing, and which may eventually also prove beyond us.Report

    • Avatar Tom Van Dyke says:

      Mr. MacLeod, the word “unilaterally” in my comments weakens your case considerably, that government unilaterally changes the meaning of its contract with the people.

      And quoting Woodrow Wilson, who disdained the Founders and constitutionalism, in support of your position, leaves your argument very exposed indeed, which is my purpose here, to show how nakedly radical that position is.

      Since the Constitution could not officially be “stripped off and thrown aside,” Wilson endorsed the emerging, Darwinian-inspired theory of a “living Constitution.” For Wilson, this did not mean creatively applying original principles to situations the Framers had not imagined: It meant negating those principles whenever they stood in the way of the march of History, as manifested in the latest promising idea.Report

      • Avatar CK MacLeod says:

        I’ve read Pestritto’s book, and in many places found Wilson and Wilson’s Hegel much more persuasive than Pestritto, and certainly than would-be popularizers like Jonah Goldberg, Glenn Beck, or the authors of that Standard piece. As for the last, I find it somewhat telling that Mirengoff and Johnson would eventually invoke Leo Strauss against Hegel/Wilson/historicism, since Strauss’s understanding of American constitutionalism and of the philosophical project more generally could be strongly invoked against them and especially against their appeal to chauvinism (anyway Strauss was just a damn furrener anyway, so why are good patriotic Standard-Americans calling on him?).

        The question to me isn’t whether Wilson “disdained the Founders and constitutionalism,” but whether there is something to his argument in relation to the topic we are discussing. “Disdain” seems pre-judgmental: Did he have good reason to consider “the Founders and constitutionalism” inadequate to the demands of his times? Do we? I think he did, I think we do, and I think expecting anything else would be unrealistic.

        I called his views on the nation prior to and beyond the Constitution “simply true,” but I’ve had some second thoughts about his actual statement, not because I disagree with his implicit distinction between “constituting” and “constituted” power and the differences between them, but because I’m less confident than Wilson had reason to be in the mid-late 19th Century that we’d re-collect ourselves and epically and heroically “stand forth” as “one nation.” Not saying we wouldn’t, just saying there are a range of alternatives.Report

        • Avatar Tom Van Dyke says:

          Again, Mr. MacL, let’s just get it out in the open. Wilson’s “historicism” is dear to many moderns, and repulsive to many of the rest.

          The problem is that few [on either side] can put the ideas into words, and further, IMO “historicist” ideas are far less appealing when subjected to the light of day.

          As for Leo Strauss, he speaks more for classicism and against the moderns in this sense. The Constitution itself was written with the classical view of man in mind, that he is occasionally virtuous but reliably venal, hence the separation of powers, limited government, etc.

          It’s really all in here, and I do appreciate your ability to recognize the players and main bone of contention, what Strauss calls “historicism,” the idea that each moment in time calls for its own rules rather than relying on a tried-and-true based on the view of human nature as immutable and more venal than virtuous. [James Madison especially.]

          [Since Strauss is a Platonist, and into the “philosopher-king” thing, his personal trip doesn’t really apply here. I’m confident he would prefer a bold and wise FDR to a fussy constitutionalism.]Report

          • Avatar CK MacLeod says:

            I think you’re right that Strauss wouldn’t have much time for fussy constitutionalism, at least when the world was in flames or even just smoldering. As you probably also know, some of his best friends were Hegelians.Report

            • Avatar Tom Van Dyke says:

              It’s believed Strauss thought Kojeve would probably win, the end of history, the triumph of the Univeral and Homogeneous state. Toward the end of “On Tyranny,” he sounds quite melancholy.

              “There is no longer fight nor work. History has come to its end. There is nothing more to do.” This end of History would be most exhilarating but for the fact that, according to Kojève, it is the participation in bloody political struggles as well as in real work, or generally expressed, the negating action, which raises man above the brutes. The state through which man is said to become reasonably satisfied is, then, the state in which the basis of man’s humanity withers away, or in which man loses his humanity. It is the state of Nietzsche’s “last man.” Kojève in fact confirms the classical view that unlimited technological progress and its accompaniment, which are the indispensable conditions of the universal and homogeneous state, are destructive of humanity. It is perhaps possible to say that the universal and homogeneous state is fated to come. But it is certainly impossible to say that man can reasonably be satisfied with it. If the universal and homogeneous state is the goal of History, History is absolutely “tragic.” Its completion will reveal that the human problem, and hence in particular the problem of the relation of philosophy and politics, is insoluble. For centuries and centuries men have unconsciously done nothing but work their way through infinite labors and struggles and agonies, yet ever again catching hope, toward the universal and homogeneous state, and as soon as they have arrived at the end of their journey, they realize that through arriving at it they have destroyed their humanity and thus returned, as in a cycle, to the prehuman beginnings of History. Vanitas vanitatum. Recognitio recognitionum. Yet there is no reason for despair as long as human nature has not been conquered completely, i.e., as long as sun and man still generate man. There will always be men (andres) who will revolt against a state which is destructive of humanity or in which there is no longer a possibility of noble action and of great deeds. They may be forced into a mere negation of the universal and homogeneous state, into a negation not enlightened by any positive goal, into a nihilistic negation. While perhaps doomed to failure, that nihilistic revolution may be the only action on behalf of man’s humanity, the only great and noble deed that is possible once the universal and homogeneous state has become inevitable.

              … The Chief of the universal and homogeneous state, or the Universal and Final Tyrant will be an unwise man, as Kojève seems to take for granted. To retain his power, he will be forced to suppress every activity which might lead people into doubt of the essential soundness of the universal and homogeneous state: he must suppress philosophy as an attempt to corrupt the young … The philosophers in their turn will be forced to defend themselves or the cause of philosophy. They will be obliged, therefore, to try to act on the Tyrant. Everything seems to be a re-enactment of the age-old drama. But this time, the cause of philosophy is lost from the start. For the Final Tyrant presents himself as a philosopher, as the highest philosophic authority, as the supreme exegete of the only true philosophy, as the executor and hangman authorized by the only true philosophy. He claims therefore that he persecutes not philosophy but false philosophies. The experience is not altogether new for philosophers. If philosophers were confronted with claims of this kind in former ages, philosophy went underground. It accommodated itself in its explicit or exoteric teaching to the unfounded commands of rulers who believed they knew things which they did not know. Yet its very exoteric teaching undermined the commands or dogmas of the rulers in such a way as to guide the potential philosophers toward the eternal and unsolved problems. And since there was no universal state in existence, the philosophers could escape to other countries if life became unbearable in the tyrant’s dominions. From the Universal Tyrant, however, there is no escape. Thanks to the conquest of nature and to the completely unabashed substitution of suspicion and terror for law, the Universal and Final Tyrant has at his disposal practically unlimited means for ferreting out, and for extinguishing, the most modest efforts in the direction of thought. Kojève would seem to be right although for the wrong reason: the coming of the universal and homogeneous state will be the end of philosophy on earth.”

              – Leo Strauss, On TyrannyReport

              • Avatar CK MacLeod says:

                Happens to be one of my favorite passages from one of my favorite books. Anyways: No worries – he was just playing with our heads there. In the immediately preceding paragraph he refers to the modern project as “impossible.” His choice of the future rather than conditional to play out the implications of Kojeve’s theory is somewhat like the scary music in a horror movie. I think.

                There’s a very foolish wise man on the internet, a phil prof from Somewhere, who appears to have convinced himself that arch-esotericist Leo in that passage was actually advocating the UHS and the Final Tyrant.Report

              • Avatar Tom Van Dyke says:

                I see a lot of Last Men here and thereabouts, CK. That’s my point in all of this.

                Is Strauss having a go in that passage? I dunno. Alexandre Kojeve was the philosophical godfather of the European Union, the League of Hollow Men, of stuffed men, the Last Men.

                From this safe spot, this last best hope of earth, I [we?] can only hope it ends with a bang, or a whimper. Either one works for me.

                Strauss was formed by the failure of Weimar to protect its Jews. He believed in neither man nor his systems.

                It is perhaps possible to say that the universal and homogeneous state is fated to come. But it is certainly impossible to say that man can reasonably be satisfied with it. If the universal and homogeneous state is the goal of History, History is absolutely “tragic.” Its completion will reveal that the human problem, and hence in particular the problem of the relation of philosophy and politics, is insoluble. Report

  11. Avatar Jaybird says:

    A question for the Living Constitutionalist Types:

    Could you give me an example of a law so Unconstitutional that you would pretty much just up and say “yeah, that’s not Constitutional on its face.”

    I’ve seen arguments (not necessarily from those here) in support of McCain-Feingold, I’ve seen arguments (not necessarily from those here) in support of DC’s gun control laws… I’m wondering if there’s an example of a law that is so egregious that it would get you to say “Nope, that just ain’t Constitutional.”

    Now, if you are not a member of the set “you thought that McCain-Feingold was within the limits of the First Amendment and DC’s gun laws were within the limits of the 2nd”, then we’d probably be in agreement to the point where I’d not find your example of a law illuminating… but if you are a member of that set, I’d enjoy seeing an example of a law that would get you to point at obvious Unconstitutionality. (Bonus points for your example not violating the 13th.)Report

    • Avatar Tod Kelly says:

      Pick a blue law. Any blue law.Report

      • Avatar Jaybird says:

        “You can’t buy a car on Sunday in Colorado” is an Unconstitutional law?

        Why wouldn’t this be covered by Interstate Commerce?Report

      • Avatar Jaybird says:

        Oooh. I’ve thought about this some more. So *STATE* law can violate the Constitution… is there a Federal Law that would necessarily do so?Report

        • Avatar Tod Kelly says:

          You realize, don’t you, that there is no argument of “anything goes” on the table from living Constitutionalists here?

          I thought I was pretty clear in my OP, but I’ll restate: The problem with an Originalist philosophy isn’t that everything should be allowed; quite the opposite. The founders declared freedom of press and speech, but then they locked up people overly critical of them. Do I want people to be able to go back to letters from John Adams to “prove” that FOX or MSNBC doesn’t really have a right to be critical of the president?

          My problem with Originalists isn’t that they’re too strict; it’s that they have an Eden-like view of what the world was like before FDR ruined it for everybody.Report

          • Avatar Jaybird says:

            I’m not arguing that all y’all think that “anything goes”… but if the PPACA was Constitutional based on the ICC rather than on the power to Tax, I’d ask what, if any, limits to the ICC exist.

            If Washington DC’s gun laws did not violate the 2nd Amendment, I’d ask what, if any, gun laws would *NOT* violate the 2nd.

            I’m not accusing you of anything goes. Heck, I specifically said “if you are not a member of the set “you thought that McCain-Feingold was within the limits of the First Amendment and DC’s gun laws were within the limits of the 2nd” then we’d probably be in agreement…”

            Indeed, if you aren’t a member of that set, you shouldn’t feel like my question is aimed at you *AT ALL*. It’s not. If, however, you think that McCain-Feingold didn’t, and that DC’s gun laws didn’t… then I’m confused as to where the limits could possibly be and would benefit from an example that was even self-evidently Unconstitutional.Report

            • Avatar Tod Kelly says:

              What is wrong with the answer, “Whatever goes through the democratically elected system and is then upheld by the Supreme Court?”Report

              • Avatar Jaybird says:

                Off the top of my head, I’d say Dred Scott, Schenck, Buck v Bell, and Wickard provide examples that were upheld by the SCotUS that strike me as obviously Unconstitutional despite having done all of that.Report

              • Avatar Tod Kelly says:

                I disagree. I think they are by definition constitutional; each required that we as a country evolve more than we had at that point.

                I do not equate “constitutional” with “right and just.” 3/5s was constitutional, and so was deference to white land owners. Those too, were calls for us to evolve.

                We can’t expect the SCOTUS to bail us out every time we do something terrible.Report

              • Avatar Jaybird says:

                My problem with that is that it seems to me that the Constitution is written plainly enough that it requires more than (a particular) 218 people, followed by (a particular) 60 people, followed by (a particular) 1 person (maybe), followed by (a particular) 5 people (maybe) to say that yes, a thing is or no, a thing is not.

                I can look, myself, and say “no, this law is unconstitutional” even if it never makes it to the Supreme Court.

                There’s more to Constitutionality than consensus on the part of the powerful. There has to be.Report

              • Avatar Tod Kelly says:


                You can certainly make the mandatory wearing of clown shoes in public places a constitutional requirement with the simple addition of a mere 69 of the powerful to one of those columns, and 6 to another.

                Are those specific 75 powerful people really the difference between tyranny and liberty?Report

              • Avatar Jaybird says:

                I certainly believe that it’s possible for them to be tyrannous… and them telling you otherwise does not make it otherwise.Report

              • Avatar Tod Kelly says:

                Which is why I said I do not consider “constitutional” and “just and fair” to by synonyms.

                Regardless, whatever it was just passed by 2/3, 2/3, was signed and upheld. Is that not the very definition of something that is constitutional?

                If not, why not?Report

              • Avatar Jaybird says:

                Well, if they amended the Constitution, then the new amendment would, by definition, be Constitutional.

                I agree with that.

                What I do not agree with is that any given law must be equally Constitutional if it gets passed, signed, and later upheld.Report

              • Avatar MikeSchilling says:

                I can look, myself, and say “no, this law is unconstitutional” even if it never makes it to the Supreme Court.

                Why, so can I, or so can any man; But is it void when you do call it so?Report

              • Avatar Jaybird says:

                It does not make it void.

                The fact that my saying “it’s Unconstitutional” does not make it void does not make it Constitutional, however.Report

              • Avatar MikeSchilling says:

                The fact is that your saying “It’s unconstitutional” is prefixed, implicitly or explicitly with “in my opinion”.Report

              • Avatar Jaybird says:

                Let’s bring Lewis Carroll in and see if he has any insight.

                ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

                ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

                ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

                To what extent is Humpty Dumpty correct?

                It seems to me that his correctness is less than absolute. Indeed, it seems to me that his correctness is less than obvious.Report

            • Avatar wardsmith says:

              Jaybird, now that we know how to instantiate something just by declaring it a tax I just know you’ll appreciate A Modest Proposal.Report

          • Avatar Tom Van Dyke says:

            John Adams’ disregard for the Constitution made him the first one-term president.

            The patent unconstitutionality of the Sedition Act of 1798 argues against your case, Tod. Word up—the people will only put up with so much twisting of our social contract—exactly the argument from this quarter all along.


            The final statute was the Sedition Act. This measure aimed to curb public criticism of the Adams administration, especially at the hands of pro-Democratic-Republican newspapers. Passed on July 14, 1798, the Act asserted that to “print, utter, or publish . . . any false, scandalous and malicious writing” against the federal government – including the President himself – was a treasonable crime punishable by imprisonment and/or fines.

            Although the Adams administration did act upon the alien laws, the Sedition Act was enforced with great energy. Over two dozen pro-Republican newspaper editors were arrested, fined, and imprisoned. Their newspapers, moreover, were shut down. Included among those charged was Benjamin Franklin Bache, grandson of Benjamin Franklin and editor of the pro-Jeffersonian Philadelphia paper, the Aurora.

            These efforts to halt political dissent backfired. Many Americans believed the acts unconstitutional and were outraged that newspaper editors had been charged and imprisoned. The acts also led to the passage of Virginia and Kentucky resolutions(1799), written by James Madison and Thomas Jefferson respectively. Passed by their state legislatures, these resolves condemned the actions of the Fedealist Congress and asserted that the states had the authority to declare them (and all tyrannical statutes) unconstitutional.

            The Alien and Sedition Acts also politically weakened the Federalist Party during the election of 1800, especially after the diplomatic crisis with France passed without war. After Thomas Jefferson’s election to the presidency, Congress repealed the Naturalization Act in 1802, while the other statutes were allowed to expire.Report

    • Avatar MikeSchilling says:

      Much of the Patriot Act.Report

      • Avatar Jaybird says:

        “insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”Report

    • Avatar Jaybird says:

      I suppose it wouldn’t be fair for me to ask for an example without offering one myself:

      So here is Jaybird’s example of an Unconstitutional Law:

      “The American Spay And Neuter Your Pets Act” (which, of course, contains a loophole for professional breeders).

      (Now, of course, I know that the folks who would argue that Wickard (or Raich, for that matter) was decided correctly could easily argue that, hey, Interstate Commerce (General Welfare!) and get Congress on board… and if Congress passed it, I can easily see Obama signing it.)Report

      • Avatar Stillwater says:

        What provision is the unconstitutionality based on? Is there no counterfactual (can hypotheticals have counterfactuals??) situation in which the law could ever be deemed constitutional?

        Here’s one I’d go with: a blanket law restricting all forms of speech except those explicitly permitted by government.

        Here’s another one: A law which permits the murder of political enemies just so long as their committed by members of President’s political party.

        One more: An Act creating a government program which conscripts every red haired child under age of 7 into gymnastics camp.Report

        • Avatar Jaybird says:

          Shouldn’t the burden be on demonstrating how the law is, in fact, Constitutional?

          Are we now officially in a place where the assumption is that any law that passes the House is assumed Constitutional until it’s demonstrated that it’s not, rather than assumed Unconstitutional until someone yells “interstate commerce”, “general welfare”, or one of the other usual suspects?Report

          • Avatar Tom Van Dyke says:

            @JBird 12/17/10:

            Fulfilling one of their most prominent campaign promises, House Republican leaders have unveiled a new rule to require that each bill filed in the House “cite its specific constitutional authority.”

            Read more:

            • Avatar BlaiseP says:

              Hee hee. Those wascawwy Wepubwicans. Guess they didn’t actually read that Constitution, where it explains what those Constitutional Authorities are — the Congress and the President.Report

              • Avatar Tom Van Dyke says:

                The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

                —James Madison, Federalist 45. Italics mine. Bold face mine.Report

              • Avatar BlaiseP says:

                Well, may I refer you to the opening sentence of Article 1:

                All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

                Mr. Madison has been dead a while. He was a petty forger, (forging Jefferson) who completely distorted his own historical record. He’s been a mess to figure out ever since. As for lives, liberties and properties, those properties included a great host of slaves and their liberties we may hold up to the candle of history and find a great bolus of rot in his magisterial prose.Report

              • Avatar Tom Van Dyke says:

                Bold face mine: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

                Reading comprehension.

                Actually, Blaise, your ad hom attacks on the Founders go to further my point with Mr. Kelly, that leftpersons proceed as though the Constitution was ratified this morning and should be reinterpreted by noon, the Founders be damned.

                [Tod, I can only conclude your cmptr doesn’t show the comments of Blaise and certain others. This would explain the loggerheads we seem to be at.

                I meself don’t argue the Founders from authority, but from their coherence and witness to the understanding of the Constitution when it was ratified, as Madison put it, “the sense attached to it by the people in their respective State Conventions [is] where it recd. all the authority which it possesses.”

                That’s my primary point, legitimacy, not the timeless authority of Mr. Jefferson, whom, like Mr. Blaise, I don’t like very much either.]Report

              • Avatar BlaiseP says:

                Guess what, Tom? These guys were not exactly geniuses. Nor are we in our time. Now you can erect false gods and get all wrapped up in some swami robe and put on some wizard’s cap and gravely intone “Thus said the Founders!”.

                That might impress the rubes. It holds no water with me. This is a nation of laws and not of men, especially not screwy little guys who couldn’t quite reconcile the freedom they were writing about with the slaves they owned. They put it off a while, until they were all dead and buried, and that Lincoln guy would spout off about Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

                No they bloody well didn’t. They set up a nation where they were the lords and the niggers were about three-fifths a man. So much for all men being created equal.

                So don’t you get all huffy with me about ancient history. The Founders were bright guys but men of their day and that’s where they belong. The Talmud has a little proverb: without the law civilization perishes. I will keep my nose pointed forward and leave the worshipping of eighteenth century idols to you and much good many it do you and your Holy Book the Constitution.Report

          • Avatar Stillwater says:

            Shouldn’t the burden be on demonstrating how the law is, in fact, Constitutional?

            Not really. You constructed a little game, then gave an example of a law you think is clearly unconstitutional. I’m just playing the game with you: why do you think it’s unconstitutional? What provision is referenced to make it so?

            Maybe you meant to play a different game, the rules being unclear and all.Report

            • Avatar Jaybird says:

              Well, according to the Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

              So how can we know whether any given law is under the umbrella of the powers reserved by the states or by the people?

              It seems to me that it comes out and says that they’re delegated by the Constitution… and if they aren’t delegated by the Constitution, they’re reserved to the States or to the people.

              Let me guess… that moves the burden of proof exactly… nowhere.Report

  12. Avatar Michael Cain says:

    Since I live somewhere that used to be part of the Old West… 140 years ago, when the law “reached” an established settlement, one of the first things that happened was adoption of a “check your guns with the sheriff when you arrive, pick them up when you leave” policy or its equivalent. TTBOMK, no one ever argued that such was unconstitutional; or at the least, a citizen’s right to not be shot at when old Sam had had one whiskey too many outweighed Sam’s right to carry his gun around town. I am… amused?… that so many people in this part of the country believe they have a Second Amendment right that their great-great-grandparents didn’t recognize.

    Or have I learned history wrong?Report