The Republicans don't just use dog whistles when talking to us "hoi poi', you know, "those people" [us people]. They also code their arguments when talking to each other. This is understandable, because they really don't want ordinary people (like us) looking too carefully at the elitist arguments they are making or the private, separate advantage [Locke's definition of Tyranny] they are seeking. This is especially the case with George Will's collumn in the post today. You have to have an advanced degree in History or in Republican Dogmatics to understand what he's saying. I'm not kidding. He's actually attacking Teddy Roosevelt and praising Robert Taft here!. It's like he's turned on a God of his party, unless you can crack the code.
But here's the first paragraph:
"Ted Cruz’s victory in Tuesday’s Texas Republican runoff for the U.S. Senate nomination is the most impressive triumph yet for the still-strengthening tea party impulse. And Cruz’s victory coincides with something conservatives should celebrate: the centennial of the 20th century’s most important intraparty struggle. By preventing former president Theodore Roosevelt from capturing the 1912 Republican presidential nomination from President William Howard Taft, the GOP deliberately doomed its chances for holding the presidency but kept its commitment to the Constitution."
The 9th amendment says; "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and Amendment 10 - "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."
Okay, great. Will doesn't bother to explain. He expects the people he's talking to already be familiar with the conservative spin on the subject. Will Says:
"Before Cruz, 41, earned a Harvard law degree magna cum laude, he wrote his Princeton senior thesis on the Constitution’s Ninth and 10th Amendments, which, if taken seriously, would revitalize two bulwarks of liberty: the ideas that the federal government’s powers are limited because they are enumerated and that the enumeration of certain rights does not “deny or disparage others retained by the people.”"
I can understand why George likes the guy. He, like our President, was an editor of the Harvard Law Review, and is a member of our countries 1% elite. He's a masterful debater. But what is Will talking about with respect to the 9th amendment and the 10th Amendment? So here let me share it briefly from an article by Ted Cruz:
"The 10th Amendment embodied a revolutionary concept. Written just a few years after we had won our independence from Britain, the Constitution fundamentally changed the relationship between people and government.
So far so good, almost any Democratic Republican would agree with their Republican colleagues on this. The 10th Amendment reserves powers not granted to the Federal Government to the States "or to the people."
And we all agree with his next comment too:
"For millennia, the source of power and authority had always been kings and government, and rights were seen as gifts by grace from the monarch. The Constitution inverted that understanding, with sovereignty beginning in the American people — beginning with We the People — and power given to government only to a limited degree."
Again no complaints:
"Indeed, that was the genius of the Constitution — limiting government to protect the liberty of the people. Because the Framers recognized that unchecked government can strip the people of their freedoms, they designed a constitution to prevent that from happening."
And indeed "As James Madison, the Constitution’s primary author, explained:"
"“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”"
Now Madison when he wrote this was expressing a conservative opinion fearing both the common people, and the machinations of factions. And the goal was moderation:
"Because men are not angels, the Constitution was designed to create an effective national government while preventing the government from overreaching."
Hamilton and Jefferson saw the constitution as a bullwork against the designs of Banking and factional interests whose main interest was their own self aggrandizement. They saw the constitution as a protection for all and a means of trying to mitigate and control factionalism. They would use the issue of whether laws were constitutional or not to oppose banking, corporate and corrupt interests who they saw as enriching themselves at the expense of the general welfare.
And Cruz concludes:
"Thus, the Constitution “split the atom of sovereignty,” as the Supreme Court has put it, separating governmental power between the legislature, the executive and the judiciary, and between the federal government and the 50 states.
So this is what Will is getting at when he praises the "Madisonian" beliefs of Cruz. For Will and Cruz government should be limited. "The People" are to be restricted from working their will on the country, and if they are unrestrained, conservatives believe they inevitably will over-reach.
"History had taught the Framers that those in government almost always try to get more power, and the magic of dividing governmental power into many separate parts is that each part fights hard against the others to prevent them from expanding their power. As a result, government power overall is limited and our freedom is protected."
So what Will is getting at is the notion that the 10th Amendment prohibits the government from exercising any power that is not enumerated. What Ted and Will also do is to interpret what the constitution says as limiting the Government even when the constitution implicitly (implies) that a thing is constitutional interpreting that powers not prohibited are also unconstitutional. Thus he interprets it to mean (as he states before the quotes above):
"Thus, any power that the Constitution does not affirmatively give the federal government, it does not have."
Here we disagree, because Will and other conservatives interpret this in a parsed and convenient manner. We believe that the constitution does give the Federal Government power to regulate National Systems under it's interstate commerce clause. Conservatives want to read into the constitution the notion that if it doesn't say it nobody has that right, except maybe private local tyrants and monopolies. They certainly don't believe "the people" have that right unless it's "The right people."
So Will, the Federalist Society, the "Whigs" and other elitists aren't really talking about the 9th and 10th amendment but about literal and implied versus explicit powers. And this came up recently in the context of the healthcare debate, because most conservatives believe that we should not have the Government regulating any of our national systems; healthcare, being the first target. Hence the reference to Teddy Roosevelt who was one of the last progressives in the Republican party with any real popularity or power.
"Both ideas are repudiated by today’s progressives, as they were by TR, whose Bull Moose Party, the result of his bolt from the GOP, convened in Chicago 100 years ago Sunday, Aug. 5, 1912."
Will is claiming that we progressives "repudiate" the 9th and 10th amendment. This of course is a straw argument because we believe that the purpose of the 9th and 10th amendment is to empower "the people" and that if the States are good with Federal involvement in a national system, then the government certainly has the right under it's power to regulate commerce to regulate commerce that involves the entire country. And indeed, that is why the ACA won in the Supreme Court.
Why the Attack on TR?
Cruz is the latest of young lawyers whose dancing on the basis of rhetoric, sophistry and parsing the constitution so enthralls conservatives, but what piqued my interest was the attack on TR. Will writes:
"After leaving the presidency in 1909, TR went haywire. He had always chafed under constitutional restraints, but he had remained a Hamiltonian, construing the Constitution expansively but respectfully. By 1912, however, he had become what the Democratic nominee, Woodrow Wilson, was — an anti-Madisonian. Both thought the Constitution, the enumeration and separation of powers, intolerably crippled government."
Now, this is an interesting thing to say. There was nothing unconstitutional about Hamilton's opinions, and indeed both FDR and TR based their arguments on an intellectual who had made the case that in this age of powerful monopoly of the governance of commerce, banking and industry, only the Federal Government could protect the "rights of the people." So TR saw himself as "using Hamiltonian means" to advance "Madisonian Ends." That is to fight the banks, the special interests, and the powerful factions of the country. TR saw that he had to use the power of the Federal State.
This is not disdain of either Madison or Jefferson, and this defamation of TR is absurd. And the defamation of Wilson as "disdaining Madison is absurd:
"Espousing unconstrained majoritarianism, TR disdained James Madison’s belief that the ultimate danger is wherever ultimate power resides, which in a democracy is with the majority. He endorsed the recall of state judicial decisions and by September 1912 favored the power to recall all public officials, including the president."
No by 1912 TR saw that the fight against the Financial Wealthy and their Trusts and corporations was hopeless if carried out by the States alone and that the USA was a national system. His progressive party wanted to reform the government, add additional amendments to make our democratic republic more democratic and to reduce the tyrannical power of the trusts and monopolies.
"TR’s anti-constitutional excesses moved two political heroes to subordinate personal affection to the public interest. New York Sen. Elihu Root had served TR as secretary of war and secretary of state, and he was Roosevelt’s first choice to succeed him in 1908. Massachusetts Sen. Henry Cabot Lodge had long been one of TR’s closest friends. Both sided with Taft."
"Roosevelt ran a vigorous campaign, but the campaign was short of money, as the business interests which had supported Roosevelt in 1904 either backed the other candidates or stayed neutral. Roosevelt was also handicapped by the fact that he had already served nearly two full terms as President, and thus was challenging the unwritten "no third term" rule."
So "principled stand?" LOL
"As the Hudson Institute’s William Schambra says (in “The Saviors of the Constitution,” National Affairs, Winter 2012, and elsewhere), by their “lonely, principled” stand, Root and Lodge, along with Taft, “denied TR the powerful electoral machinery of the Republican Party, which would almost surely have elected him, and then been turned to securing sweeping alterations” of the Constitution."
Now, note Will claims that the election saved the Constitution from the 9th and 10th amendment being abused, but TR's proposals all included the use of constitutional amendments to put them into effect. So he's not really complaining about TR abrogating the constitution so much as changing it to bring in real reform. Again from the Wikipedia article:
- The platform also urged states to adopt measures for "direct democracy", including:
- The recall election (citizens may remove an elected official before the end of his term)
- The referendum (citizens may decide on a law by popular vote)
- The initiative (citizens may propose a law by petition and enact it by popular vote)
- Judicial recall (when a court declares a law unconstitutional, the citizens may override that ruling by popular vote)
- To destroy this invisible Government, to dissolve the unholy alliance between corrupt business and corrupt politics is the first task of the statesmanship of the day.
"However, the main theme of the platform was an attack on the domination of politics by business interests, which allege allegedly controlled both established parties. The platform asserted that
So if TR had been elected, far from eliminating democracy, he'd have strengthened it and included features of direct democracy and controls over the massive corrupt power of the business interests that then and now ran the whole country for their own "private, separate advantage" [John Locke] which is the definition of tyranny according to John Lock. To our Whiggish Conservatives, his defeat was a victory for "the conservative cause." In other words a victory for business elites and the tyranny of business.
"Wilson won with 41.8 percent of the vote (to TR’s 27.4 percent). Taft won 23.2 percent, carrying only Vermont and Utah, but achieved something far grander than a second term: the preservation of the GOP as an intellectual counterbalance to the Democrats’ thorough embrace of progressivism and the “living” — actually, disappearing — Constitution."
Wilson was more Madisonian and Jeffersonian than either TR or Taft. And he was a reluctant convert to progressivism, coming from the populist movement as he did, and being a Jefferson scholar who considered himself in the line of Jefferson. So the result was only a victory for the continued dominance of business interests over the country, something that continues to this day:
"Today, many of the tea party’s academic despisers portray it as anti-democratic and anti-intellectual. Actually, it stands, as did the forgotten heroes of 1912, with Madison, the most intellectually formidable Founder. He created, and the tea party defends, a constitutional architecture that does not thwart democracy but refines it, on the fact that in a republic, which is defined by the principle of representation, the people do not directly decide issues, they decide who will decide. And the things representatives are permitted to decide are strictly circumscribed by constitutional limits on federal power."
If democracy means affirming the local tyranny of dictatorial monopolies then we are living in 1984.
"TR sought to make these limits few and as flimsy as cobwebs when the people chose to amend them by plebiscitary methods. The New Republic, then a voice of progressivism, ridiculed Root for being “committed to the theory of government, based upon natural rights” — the Declaration of Independence’s theory of pre-political rights. Schambra, however, argues that for Root and Lodge, as for today’s tea party, the rights proclaimed in the Declaration and the restrictions that the Constitution imposes on government are inseparably linked, as Root said, to “the end that individual liberty might be preserved."
Somehow I don't find this argument compelling at all. Eventually a two term amendment would have been passed, and the ability to override arbitrary and corrupt court decisions would improve our processes and democracy, not degrade them. And it certainly would give us some democratic controls over our politicians. I guess registering Lobbyists (which was also on the plank, would interfere with the elitist notion that money = speech and speech is only privileged if it is backed by money.
"The GOP’s defeat in 1912 — like that in 1964 under Barry Goldwater, whose spirit infuses the tea party — was profoundly constructive. By rejecting TR, it preserved the Constitution from capricious majorities."
Everyone is entitled to an opinion. But at least we now see the context, and this reveals his real fear. That someone might be able to put a check on the rent seeking and corporate welfare of our corrupt governing elites from business. Limiting the formal Federal Government while ceding rights nad powers to private corporations is unconstitutional by the 10th Amendment. When did the monopolies get the power to take away our rights or oppress people at the will of a tyrant!
"Assuming Cruz wins the general election in his crimson state, he and like-minded Republicans in the Senate — Utah’s Mike Lee, Kentucky’s Rand Paul, South Carolina’s Jim DeMint, Wisconsin’s Ronald H. Johnson, Pennsylvania’s Patrick J. Toomey, Florida’s Marco Rubio and, if they win, Indiana’s Richard Mourdock, Arizona’s Jeff Flake and perhaps others — can honor two exemplary senatorial predecessors by forming the small but distinguished Root-Lodge Caucus."
Somehow I don't see any of these people as heroes. But once you understand the context the elitism and disdain for "majoritarian" politics and the will of the people becomes obvious.
I could spend more time on this. I can't find my essay on John C. Calhoun where I noted that his arguments for Nullification were refuted by his arguments as a young nationalist for "compelling national interest." They seem to have disappeared from the internet and my source book is packed in a box. So I'm confining myself to providing context so I can get some sleep.
- "Texas’s Ted Cruz gives tea party a Madisonian flair" URL: [http://www.washingtonpost.com/opinions/george-will-texass-ted-cruz-gives-tea-party-a-madisonian-flair/2012/08/01/gJQApiwePX_story.html]
- Ted Cruz on the 10th Amendment: [http://www.thepoliticalguide.com/Profiles/Senate/Texas/Ted_Cruz/Views/The_Tenth_Amendment/]