Tuesday, July 4, 2017

The Constitutional margins (in honor of July 4th)

I recently read a fascinating article about state and local governments' willful non-compliance with attempts by federal immigration officials to arrest and deported undocumented immigrants.  Far from decrying the disobedience of these local jurisdictions, the author applauds them as upholding the very spirit of our Federalist system.  If a federal law goes against the will of the states or their people, then part of the essence of Federalism is for states to fight against such law, either through explicit challenges in court, or simply by making the law impossible for the Feds to enforce.

This all made me curious about the group that published the article, and its website devoted to the Tenth Amendment.  They are initially hard to categorize politically, and I think they keep their language intentionally ambiguous, not explicitly partisan, in order not to repel first-time readers.  I'm fine with this--I welcome thinkers that don't fall into an easy Democrat-Republican dichotomy.  But as you dig a bit more, you see that their seemingly neutral call for more power for states and people tends to skew libertarian, if not farther Right and outright antagonistic to progressive causes.  Why do I say this?  Let's check out the campaigns/issues they're promoting.  They seem to be into legalization of marijuana at the state level.  Okay, pretty center-libertarian thus far.  Their calls to undo police militarization, fight common core standards in education, and hamper NSA spying can also count on a pretty wide bipartisan base.  But their attempts to "resist" Obamacare at the state level ring clearly partisan, and their campaign to avoid any federal gun control legislation is straight out of the Right-wing looney bin.  Most viable gun legislation that I can recall from the federal government, not just from Trump but even from the Obama-era Republican Congress, has in fact attempted to weaken the controls that states and cities put on guns, not the other way around.  And given that, why would a supposedly neutral group dedicated to states' rights and the power of the people be pushing for less gun control and less medical care?  They could just as easily (and just as coherently, within their Tenth Amendment convictions) try to drive people-led campaigns to institute state-based healthcare systems that expand coverage, or to put common-sense controls on gun ownership and sales.  A true Tenther should applaud actions by states and people to make the local laws they desire.  But these guys don't applaud progressive local campaigns, just anti-progressive ones, which knocks them down a number of notches in my estimation.  Once again, what is presented as a nonpartisan, objective call for greater adherence to the Constitution, is just as partisan as anything else, but with the added sin that they try to deny the subjectivity inherent to any human endeavor, and decry any opposing position as being irrational and partisan.

So I started reading up on this movement in favor of the Tenth Amendment, and confirmed my gut feeling that their selectively literal (and thus very narrow) reading of the Tenth Amendment, their ardent quoting of "Judge" Andrew Napolitano, and their insistence on the legal nonstarter doctrine of nullification, all sound a bit too much like the Posse Comitatus and sovereign citizen movements.  These latter go one step (or many steps) further than the Tenthers in their claims that not just some of the federal government, but in fact all of it and even state governments, are illegitimate, and that the only valid government is that which I concede to myself, or at best to the county sheriff as the highest level of legitimate government authority.

The thing is that all of these movements, the Tenthers a bit less so than the cuckoos, start to get into almost magical, incantational thinking about the Constitution and about government in general.  I'm not just talking about the sovereign citizen belief that the US government has since some specific date in its history entered in thrall to the worldwide Zionist conspiracy, and that to free yourself from the talons of the Matrix-like totalitarian federal or state government you have to file a specific sequence of magical documents that will somehow sever your ties and your slavery to that government.  No, I'm talking in general about an awed reverence for the exact words of the Constitution, and a childish insistence on some pure definition of government, the individual, and sovereignty that is totally internally coherent but also totally unworkable in a real world of interdependent human beings (which is to say the world that has existed since the first human beings and even protohumans, who all lived in small, largely autonomous groups).

First let's talk about the exact words of the Tenth Amendment, which say that powers not delegated to the federal government will be reserved to the states.  But the main power delegated to the federal government is to make, execute, and enforce laws, so that pretty much covers anything the federal government lays out in those laws.  Thus most of what a Tenther might decry as the federal government overreaching its powers, really isn't, if the government makes a law enabling it to do something.

But more importantly than this specific point, I want to talk about a purist, infantile streak we seem to have in the US when it comes to our Constitution in general.  I think a lot of people believe that, if the Constitution does or doesn't say something, then that is somehow sacred, even if it goes against our common sense.  In this vein, a Tenther could (and many do) argue that a nationwide program like Social Security is unconstitutional.  But the thing is, if the elected officials propose and approve something, and it is widely popular among the people, and neither the states nor subsequent federal decisionmakers want to undo it, and it doesn't suppress but rather amplifies human rights, then it's fine.  Of course it's not in the Constitution.  The Constitution is a short document set up to be more of an operating system than anything else, and it sure as hell didn't know about a 20th-century welfare state.  But if that's what we the people, through our elected officials and the laws they make and we approve of, want, and we've made the law and the entities to carry out the Social Security system through the general guidelines laid out by the Constitution, then what's the problem?  On a different note, if the Constitution explicitly approves of an abhorrent practice like slavery, who in their right mind would want to preserve slavery, even if ending slavery goes against the will of a lot of the Southern populace and states?  I guess in summary, my position is that if something promotes human rights (even if it goes against majority rule), or if it meets with majority approval and doesn't violate someone's human rights, then I'm not too concerned with what the Constitution does or doesn't say regarding it.

The converse side of an absurdly rigid insistence on the wording of the Constitution is something I've long suffered from, which is an almost divine-gift conception of rights.  I guess it makes sense--the document that founded our nation speaks of rights being endowed on us by God, and much American thought has revolved around the idea of natural rights.  But in the end, no right is natural--they're all social.  I think if we understood this, as I have come to as I've learned and thought more about rights, then we could avoid a lot of the problems that arise from an overly romantic notion of the genesis of rights.  Lots of conservative discourse seems to center on the idea that God or the Constitution (or really the Declaration of Independence, though we tend to get them all sort of mixed up) has only endowed us with a few rights (explicitly life, liberty, and the pursuit of happiness, but maybe also free speech and the right to arms and some other Bill of Rights stuff), which are sort of natural or "hands-off".  I mean by this that, in the conservative conception, you are born with these rights, and the only obstacle to your exercising them is a meddling or oppressive government.  In this vision, other rights like the right to food or education are not valid--they reek of European-style socialism or Napoleonic constitutions or something--because a person born in the wilderness (a la Rousseau or Hobbes) wouldn't be born with education or food or be able to obtain these things except through the intervention of others, or at least of his own work.  Life and liberty are passive rights, requiring not exertion but rather the lack of exertion of adversaries who would take them from you, while education or food require action to obtain, most likely the action of an activist government.  Which to conservatives is bad.

I held this way of thinking for a long time.  Not that food and education are bad, but that they're not rights, or at least not in the way life and liberty are.  But as I've been exposed to lots of places without rights, or where people really have to fight to create their rights or gain recognition for them, I've come to realize that all rights are active, created, and none are just natural.  The potential obstacles preventing you from enjoying even the basic rights to liberty or free speech aren't just an oppressive government, but also any individual who would deny you your rights if you weren't protected by your neighbors or community (in other words, by your government).  Government is necessary to ensure your rights, just as it can potentially limit them.  There is no such thing as a Rousseauan or Hobbesian noble savage that would be just fine if only an oppressive government didn't come along.  All of us are social beings, and life and liberty require just as much "activist government" as do food and education.  In all of these cases you need a collective to protect and ensure your rights.  Conversely, even the hypothetical noble savage couldn't procure water and food for himself if someone else were screwing up his drinking water upstream, or overhunting game.  So let's just get rid once and for all of this silly idea that people would be just fine if they were allowed to be independent, self-sufficient, and free of government interference.  Even the hardest-core survivalist is stocking canned food, using modern technology, and relying on a situation of civil order and an intact ecosystem, all of which are made possible by a functioning modern state that allows invention and commerce, criminal justice and environmental protection.  There is no such thing as a sovereign citizen.  We all live in a country that we have to share with others.

All this said, I like the Tenthers' reclaiming of nullification.  Now, from my cursory wikipedia search, "nullification" describes a very specific legal doctrine that states can unilaterally reject any federal law they consider unconstitutional.  By this definition, nullification is a non-starter, as I've said above, because no court has ever upheld it as a legitimate legal principle.  But the Tenthers seem to focus on de facto nullification, meaning that states can make federal laws unenforceable by refusing to comply or even by making laws that contradict federal law.  An example of the former is state and local non-cooperation with federal immigration officials.  The latter would include states' legalizing marijuana despite its remaining illegal by federal law.  This type of nullification I can get on board with, since it is a sort of passive way of resisting laws that are unjust.  Frankly, it doesn't need to stop at the state level.  Even if a state or local government makes a law, communties or individuals could do a lot of things to hamstring it and make it unenforceable. 

One last comment on human rights (which as I've just demonstrated are a total social creation, but one that I wholeheartedly believe in and approve of).  The main disagreement I have with the Tenther sort of thinking is that, in hewing only to the language of the Constitution, the Tenthers seem to be agnostic or even antagonistic as to whether something promotes or violates human rights.  In fact, in my understanding of US history I have seen far more cases in which the states are the ones trying to oppress people, and the federal government comes in with a law to ensure individual rights against the depradations of state and local government.  I'm thinking of lots of Civil Rights issues, from slavery to Jim Crow to voting to marriage equality.  To me in fact this is part of the charm of a federal government--it is a big guy that can stand up for the little guy against the majority, whereas states seem to me to err more on the side of the tyranny of the majority (or even a powerful minority, as in Jim Crow-era Mississippi, or majority Democrat states today that elect mostly Republican US Congresspeople).  The UN and other multinational bodies can do something similar--they respect national sovereignty, but when a nation fails to guarantee or even actively violates human rights for its people, then the UN steps in to protect the weak.

To that end, something like Obamacare, which from what I gather seems abhorrent to Tenthers, most likely does overreach what the original wording of the Cosntitution grants to the Executive, but if it expands human rights and wellbeing, and above all if it is approved of by the states and their people, then that's totally fine with me.

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