Saturday, November 18, 2006

The Conservative Constitutional Worldview

I recommend reading this interview with former Attorney General Ed Meese. Wil S. Hylton does a pretty good job of bringing out the sort of circular reasoning that permits a "conservative" to believe that the Constitution provides no right to an abortion, yet permits Americans to own guns to their heart's content and sanctions the use of torture by our government. Here's Ed Meese on an opinion that is not supported by an "original intent" reading of the Constitution(questions are in italics):

Can you give me an example?

Well, Roe against Wade is a good one. There is absolutely nowhere in the Constitution that provides a basis for the right to abortion. As soon as they use words like "emanations arising from penumbras in the Constitution"—this circumlocution—you know they're making it up. And that's essentially what they did, in Griswold v. Connecticut first, and Roe against Wade.

And yet:

When we talk about being detained until the war is over, we're talking about a war that could go on for half a century.


Doesn't detaining someone that long compete with some of the values in the Constitution?

No, it doesn't. We value a speedy trial, as a culture. That's why we put it in the Constitution. We value a speedy trial for criminals. But a person who's been apprehended and captured on the field of battle, that status itself identifies them as either a prisoner of war or an illegal combatant.

Unless they live there.

Well, how many people do you have standing around the field of battle?

It depends the battle.

Certainly it's possible. And of course, that's why the president has applied the military tribunals. So that people have the ability, if they claim their innocence, to demonstrate it. But the reason why you detain the people is that you don't want them going back and taking up arms against our soldiers.

Shouldn't we extend them the right to a public trial for that purpose?

Why would we? Why would you do that to somebody who's not entitled to it under any law? Why would be extend the laws to people who are trying to kill Americans?

It seems to me that it goes back to original intent.

No, it doesn't.

Jefferson wrote, "All men are created equal," not "all Americans." He said that men are "endowed by their Creator" with these rights, not endowed by "the Constitution."

But that doesn't have to do with enemy soldiers.

Because enemy soldiers are not "men" by virtue of the fact that they're enemies, even though they too were endowed with the rights enshrined in our Constitution. To me it seems the argument that the Constitution is only applicable to Americans is pretty easy to refute. The rights enshrined in our Constitution are given to all men by God; they are not derived by virtue of the fact that someone was born on American soil, or of American parents. The fact that they are not applicable to many people in the world is a result of political reality, not Constitutional philosophy. But to a constitutional "dead-ender" like Meese, the Constitution isn't the rights of men enshrined so much as it's a document a Christian God bestowed upon us for our use and our use alone. And if you think that's the only hole that can be picked in Meese's argument above, then you need to go back and read more slowly.

And of course when it comes to guns, the strict interpretation of "original intent" seems to get a little more, well, wobbly:

I also wanted to ask you about the Second Amendment. It says, "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." It was written at a time when there was no permanent standing army and a well-regulated militia really was necessary for national security. I wonder if an originalist reading makes the whole Second Amendment obsolete.

No. Because in those days the "militia" was every able-bodied man. So what it meant was that every able-bodied person was entitled to own and bear arms.

And what do you suppose "well-regulated" meant?

That was what they depended on for the defense of their communities. You have two clauses, but the gravamen is the right of people to bear arms.

I just wonder where the regulation of the militia fits in.

Well, we have regulation now. We certainly have regulation as a part of the Second Amendment. We regulate under what conditions people can bear arms.

I live up in the Appalachian Mountains, and it would be hard to describe my neighbors as a well-regulated militia.

Well, we do have regulations. It's illegal in some cities to have loaded weapons. There are laws that you can't carry concealed weapons. So I would say there's obviously sufficient regulation under the Constitution.

Of course, such a reading of the Second Amendment is only sustainable if you completely divorce the first clause of the amendment from the second clause of the amendment. Do you think the Founders intended "well-regulated militia" to mean "laws that you can't carry concealed weapons"? To me, there is no plain reading of the amendment that supports such an interpretation. But, God forbid we should go "making up" rights when it comes to Due Process and the 14th Amendment.

In short, don't be fooled by conservatives who want to argue that some sort of "original intent" reading of the Constitution conveniently supports bans on gay marriage and abortion, but protects the right to pack heat while you're cruising down the freeway, says nothing about infinite detention and permits torture the likes of which Spanish inquisitors practiced. There's nothing "original" in this reading, except that the same "original" justifications conservatives have come up with to support this interpretation in the first place keep getting repeated by people like Meese.


adam said...

The interviewer does an excellent job of challenging him. A good read.

Nat-Wu said...

Seems to me "originalist" has a great similarity to "fundamentalist". And this guy Meese is lying out his ass. He takes such a spanking I'd almost be embarrassed for him if it wasn't for such a purpose.

Xanthippas said...

I wish that Meese was an example of a radical interpretation of the Constitution, but that's not really the case. When you ask people like Scalia what "original intent" is you get a much more reasoned and nuanced answer (though one you may still disagree with), but the people who make the laws in the country who believe in such a doctrine are more in tune with Meese than with Scalia.

Fan Boy said...

Liar Liar pants on fire!