Four Philosophies of Interpretation

This is continuing on a theme from the previous post (EDIT: two previous; I made a different post in the interim), which was tangential to the argument of that post but which I think is genuinely interesting. Namely, what is the proper constructional attitude to take toward the Constitution's grants of power and its declarations of rights? Or more to the point, what philosophy is desirable toward a constitution's grants of power and declarations of rights? That is to say, independent of what any of us might admit about what the clear text of the Constitution actually requires, how would we like to go about interpreting these two kinds of constitutional clauses? I think there are four basic philosophies in this realm, which I will call the liberal, conservative, libertarian, and populist philosophies.

Basically, these four philosophies are a combinatorial combination of two possible interpretive philosophies, broad and narrow, with two kinds of Constitution provisions, powers and rights. Liberals favor a broad construction of both; conservatives favor a narrow construction of both; libertarians wish to construe powers narrowly and rights broadly; and populists wish to construe powers broadly and rights narrowly.

On the Subject of Illegitimate or Wrong

So it seems that a group calling itself No Labels had a convention today where people like Michael Bloomberg and Evan Bayh spoke about how bad partisanship is. The idea is that we should put aside our labels and come together to find solutions for America. To which my answer is... what the hell do you think we're trying to do?!?!! We liberals are not not trying to find solutions to America's problems. The difference between a liberal and a centrist is either disagreement about what the problems are or about how they ought to be solved. Probably there are substantive value/goal/priority disagreements involved. You disagree with us. But that doesn't mean we aren't making a good-faith effort to make the world better as we see it. Yes, to the extent that there are policies that advance the goals/values/priorities of everyone involved, or a substantial majority, or whatever, we should do them, but there is no particular law that says there has to be. There are plenty of areas where in all honesty what the liberal-most 40% of the country thinks is good is something the conservative-most 40% of the country thinks is horrible, and vice-versa, not because we are devoted to slavish partisanship and antagonism but because we disagree. Moreover, it is inevitable in a free society that there will be things people disagree about, and they will become the battleground for political conflict; those things everyone agrees about will simply be a part of the underlying consensus.

So yeah, y'all disagree somewhat with me, or with Bernie Sanders, and we probably all disagree with Jim DeMint. But in general the presumption should be that people are genuinely trying to advance their own view of good and that they disagree about what is good, not that everyone can agree about what is good but some of us (i.e. the partisans) are just bickering and stopping good from being done.

ADDENDUM: It occurs to me that I think a lot of centrists think we ideologues/partisans are being ideological and partisan for the sake of being ideological or partisan. We aren't. I don't think conservatives/Republicans are this, either, except for the limited sense in which Congressional Republicans right now are making a concerted effort simply to make Obama fail, which involves blanket obstruction regardless of the merits of the policy. In general, though, we are all ideological or partisan because that's what we believe. As I argued in a previous post, the people who are most likely to form their opinions out of a desire to come down in a particular spot on the political spectrum are the a priori centrists.

Illegitimate or Wrong?

Conservatives are opposed to activist judges, right? They think it's just plain wrong, illegitimate, and undemocratic for judges to overturn the will of the people, right? That's what we've been hearing since at least 1973 and Roe, and realistically more like since 1954 and Brown. So, uh... yeah. George F. Will's latest column: "The case for engaged judges." I'm not kidding. Basically it's an argument why striking down the health care reform law would not constitute activist judging. The closing paragraph:

"There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.

Right. Okay. The former creates rights not specified or implied by the Constitution, the latter defends rights the Framers actually placed there. Sure.

Bring Back The Awesomeness

I am someone who obsesses over politics. I am someone who finds the mechanisms of politics fascinating. I am someone who finds American electoral politics fascinating. I am someone who finds, slightly less than the other two things mentioned, the nuts and bolts of public policy fascinating.

And yet, I cannot deny that recently American politics has been lacking very much Awesomeness. You know what I mean. Here's a good day in American politics: a rather mediocre piece of legislation that is nevertheless the best we're likely to get any time soon passed. You don't need to hear a list of bad days, but one of them goes like this: "Senate rejects health care for 9/11 heroes, citizenship for innocent children who go to college or join the military, and tax cuts for the entire nation, with solid majorities in favor of each item." Bad day in politics.

But one of the interesting things about this year was that there were two instances of Genuine Awesomeness, one at either end of the year. And I think we can learn from them. On January 29th, President Barack Obama went into the lion's den, to the Republican House caucus conference in Baltimore, and... took questions! And he gave answers. And they were tough questions and they were tough answers. Who won? No one was really sure; obviously both sides thought they did, and I obviously thought Obama did, but Who Won wasn't even really the point. Everyone started realizing, hey, this was kind of Awesome. Our head of state and his opposition engaged in dialogue with one another, actual literal dialogue, and the nation got to watch! Wouldn't it be great if that happened once in a while?

And today, on December 10th, Senator Bernie Sanders, the only Socialist in the history of the United States Congress and the longest-serving independent in our nation's history, launched the Best Filibuster In The History of the World. What made it that? Well, it wasn't in support of segregation of any sort, it wasn't about blocking a policy that most people like, it was Bernie Sanders, and, well, it wasn't actually blocking anything. But more to the point, Senator Bernie Sanders, with two brief respites provided by Sens. Sherrod Brown of Ohio and Mary Landrieu of Louisiana, held the floor of the United States Senate from 10:25 a.m. until 7:00 p.m., and then took the presiding officer's gavel and called the day's work to a close. That's right: a filibuster. (A mock filibuster; there wasn't anything else on the schedule today.) One Senator stood up for eight hours and thirty-five minutes and gave an impassioned, impromptu speech in opposition to a shadowy back-room deal that he and much of the country believed was being shoved down our throats. Now, never mind that I support that deal, more or less. Here's the point:

This is what a filibuster is supposed to look like!!!

So that got me thinking that it's time to put the awesomeness back in American politics. Let's make the mechanics of governing and politicking into compelling political theater, not in the sense of a scripted farce designed to pull the wool over people's eyes but just in the sense of entertaining. Let's make American politics fun to watch, and not just for the uber-wonks like myself. Let's reduce the facepalm moments, when the United States Senate, supposedly the world's "greatest deliberative body," declares that 41 is greater than 59. Or when all 40 failed filibusterers then vote for the underlying bill. Let's change the practice of having our elected representatives spend the majority of their time begging for money. And let's get our politicians to actually engage with us, and with each other.

Jean-Jacques Rousseau, that eternal paradox, said that the death of a Republic would be marked by political apathy in its citizenry. One is always well advised to take anything Rousseau said with a grain of salt, but this point at least has some truth to it. Most people don't like watching American politics. I don't think that's because they don't care, I think it's because our politics suck. Our system is absurd. The last time this nation decided to actually think out in careful detail about how we wanted our government to operate was, well, 1789. And most of the decisions we made were about accommodating the South and slavery. Since then we've been making it up as we go along, inventing ad-hoc rules to address the immediate short-term problems of the day. That's no way to craft a government!

I don't think we need a constitutional Amendment to bring back Awesomeness to our politics, except maybe something on the subject of campaign finance reform. We shouldn't so much abolish the filibuster as reintroduce it. Get rid of shadow filibusters, and make what Bernie Sanders did today the standard procedure again. I like Merkley's proposal to have a gradually increasing requirement of filibustering Senators on the floor at once; that would make a substantial chunk of the obstructing minority have to be very flagrant about what they were doing, and it would turn it back into a test of wills and an appeal to public opinion. We should definitely create a Question Time sort of thing, possible a dozen or so a year, when the President takes questions from both Houses of Congress, both parties. (Shouting, maybe not. Although, who knows, Democrats seem to have gotten into the let's-all-shout-at-Obama thing...) And it should be televised, not just on C-SPAN (though they'd love to have it; it'd boost their rating a whole frickin' lot!) but on all the major news networks.

There are probably other ways of Bringing Back Awesomeness that I haven't thought of here. But I just think it's worth noting that this very very un-awesome year began and ended with peculiarly awesome moments, and we should try to learn something from that.

The Point of the Estate Tax

This should be obvious, but even people who are attacking, rightly, the estate-tax cuts don't seem to be saying it. An estate tax is not a death tax. It is an aristocracy tax. The point is, really, to work toward the Republican idea of "equality of opportunity" by not letting certain families just accumulate billions of dollars and hand them down through the ages, creating a de facto aristocratic class in this country even though our very Constitution prohibits a de jure aristocracy. That is the point of the estate tax. That is why we have it. Republicans, in arguing against it, are arguing in favor of letting this country turn into an aristocracy. And Democrats should call them out on it.

Bad Arguments

I happen to think that this tax cut deal fiasco is a situation in which there are genuine substantive arguments on both sides both as to policy and as to politics. But there are two arguments that the anti-deal people are making that I think are just plain a load of bull:

1) "We can win this fight because the American people are on our side." If what this means is that we could make a credible threat to pass no tax bill and let everyone's taxes raise and the American people wouldn't blame us because they're on our side on the underlying policies, that's one thing (I happen to think that's wonderfully optimistic). If it means that we can bring enough public pressure on the Republicans to get a "good" tax bill passed through the Senate, what are you smoking, and can I have some? Not happening. Republicans know no shame. They are immune to public pressure, at least until the 2012 election gets a hell of a lot closer. They are fine, ceteris paribus, with screwing over anyone and everyone, especially if it makes Obama's re-election less likely. They just really, really want to give money to the rich, which is why we've been able to get them to agree to this much already. We should try to make the bill as much better *as possible*, but with a realistic understanding of what is actually possible.

2) "This deal represents a tax increase for poor Americans." Yes, the Making Work Pay tax credit which will expire was worth more to poor people than the proposed payroll tax holiday will be. But don't y'all get that, if no bill passes, poor people get no Making Work Pay tax credit, and no payroll tax holiday. Compared to a better deal, this is a tax increase. Compared to doing nothing, this is a tax cut. Do the people saying this think that Obama can reasonably get that better deal that includes a Making Work Pay extension, without all 42 Senate Republicans bolting and dooming the entire deal, and sending us back to worst-of-both-worlds? If not, then this objection is just gibberish.

American Elections, Part 2: Counter-Cyclical Movements

(I said they would be irregularly spaced!)

Imagine you're a state. Imagine, moreover, that you are a "safe state" for one of the two parties. And in Election Year X, you dutifully cast upwards of 60% of your popular votes for the candidate of that party, only to watch helplessly as your party's lousy candidate gets just 45% of the national vote. But then, four years later, rejoice! Your party has found a much stronger candidate, the incumbent is disliked, and your party wins the national popular vote 53-47! That's a net 16-point swing nationally. And like the rest of the nation, you're excited by this new stronger candidate, and you give even more of your vote to that candidate than you did last time.

Except, you don't give a net 16 points more of your vote to that candidate.