I Could Quibble, So I Will

The quotes are from Stanley's post The Establishment Clause below

“want to live under the Constitution as written. Most of us don’t”

I do. I know a number of other estimable gentlemen who do as well. I would really like to know what I would be missing in such a world. Corkscrew light bulbs? Income taxes?

As far as I know most of the things that the Federal Government has gotten into since SCOTUS started to treat the constitution like toilet paper have gotten worse because of Federal involvement. Public education has not improved, but it is a lot more expensive. The US has the most expensive healthcare system in the world by about 5% of GDP, but not healthier citizens. Social Security and Medicare are locked into bankruptcy. Housing finance has now caused two recessions in the last 25 years. Heck, the Federal Government can’t even discharge responsibilities that it would have under any reading of the Constitution, such as caring for disabled veterans.

“The Constitution was written 225 years ago for a different time and polity.” 

The correct answer to this canard is: So What? Human nature has not changed. Men have not become angels. Further the constitution is a sufficiently flexible framework to allow for great changes, and it can be amended.

“The Framers (most of them) owed their first allegiance to their States[*], and they were careful to limit the federal government’s ability to interfere with State practices (such as a State religious establishment and, more critically, slavery)”

The rhetorical move here is to connect the Constitution to slavery and thereby delegitimize it. It is an error to insist that something done by some people whose motives were not pure (as if anybody’s motives are ever pure) is therefore infected with that impurity. In the last 225 years, the United States has grown to be much larger. The fundamental problem that Madison set out to solve was the size and diversity of the country called for different laws in different places. I think that is no less true now when the country spans 5000 miles and has a population of 320 million as it was 225 years ago, when it was smaller in size and far smaller in population.

Notice that in Europe countries far smaller than the US, such as Britain, Italy, and Spain have regional groupings that want independence or autonomy. The Constitution sought to prevent that centrifugal problem by leaving most issues to the several states.

*I don’t know that this is true, they fought for the creation of the United States, and pledged to that cause their lives, their fortunes, and their sacred honors.

“The Constitution answered to the needs of its time, but the amendment process the Framers settled on has made it difficult to modify the Constitution as needs change”

This is not true. There have been many Amendments. The problem that the Blue State Elites have is that amendment requires national consensus. It was easily done when objects were widely popular. But it is a lot easier to persuade a couple of dozen lawyers who are class confreres of the elites to impose abortion or same sex marriage on an unwilling nation than it is to achieve the type of consensus required to amend the constitution. And, I rather suspect that it is a lot more fun to shove it down the throats of people you hate, than to talk them into something.

 “buying Louisiana, ending slavery, establishing the Federal Reserve System, or fighting the Great Depression, to name a few.”

Buying Louisiana was not hard to justify as pursuant to the treaty power. Establishing the Federal Reserve System had been approved by the Chief Justice Marshall in the early days of the republic. Slavery was ended by the 13th Amendment. And the Great Depression was not fought (it is of course impossible to fight incorporeal concepts) by unconstitutional means, they exacerbated the situation, so as to entrench partisan power.

The “New Deal” or as I call it the Peoples Socialist Democratic Republic of the Untied States was, and is to this day, unconstitutional. Sadly, SCOTUS would not, could not, bail us out of the damage. They clipped off a few of the worst depredations, but we still suffer from others (like Social Security) that will eventually collapse of their construction.

“But when the Court gets out ahead of the citizenry (abolishing the death penalty, legalizing abortion), the result can be some ugly politics, made uglier by the denial of the possibility of normal democratic procedures.”

Yes, that is true and they are lining up to do it again with same sex marriage. Apparently, the temptation to crush the enemy and hear the lamentations of his women and children is irresistible. Politics be dammed.

“Thomas has often plowed this lonely furrow, insisting that the courts should interpret the Constitution just as they interpret any other statute. ... Any other approach makes judges into unelected lawgivers.”

This is true and this is why he is the only one of the black robed clowns I have any respect for.