Constitutional Refresher Course

In yet another bizarre, embarrassing moment, Tea Party poster child, Chrissie O’Donnell, brought gasps and chuckles to the audience during a debate at a law school by claiming the First Amendment says nothing about separation of church and state.  But don’t pile on Chrissie, folks — every TP candidate thinks this is so.

The TP is a strange fusing of christian fundamentalists and libertarian anarchists, followed meekly by a host of criminally uninformed voters. One of its key planks is a pledge to adhere closely to the US Constitution — an odd desire for people whose views and aims conflict so fundamentally with that document.  They have a work-around to that conflict — wildly misinterpret certain sections, then pretend the rest doesn’t even exist.

For the christian fundamentalist, that literal believer in a bible chock full of glaring contradictions and falsehoods, ‘creative reading’ is second nature.  For the libertarian, living in a delusional world where the US economy was humming along perfectly until wrecked by the New Deal, ignoring facts is child’s play.  The TP version is less a competing interpretation of our nation’s highest law, than a Hollywood-esque “re-imagining” bearing scant resemblance to the original.

Even were their comprehension of the Constitution accurate, the TPers’ call for a “traditional, strict interpretation” has not been seriously considered for over two centuries. The immensely influential chief justice, John Marshall, deemed that the Constitution was “intended to endure for ages to come, to be adapted to various crises of human affairs.”  It was Marshall (in Marbury v. Madison, 1803) who codified the Founding Fathers’ intention to provide for judicial review.  To the Judiciary has been given the exclusive role of interpreting the Constitution.  And for two centuries, the plethora of decisions handed down by Supreme Courts have yielded remarkably consistent interpretations, none of which look anything at all like those TP re-imaginings.  (That hackneyed right-wing complaint over “activist judges” is nothing but frustration at the proper role of the judiciary as established in Marbury.)

While it’s a waste of time to talk reason to the O’Donnell and her fellow delusionals, for the benefit of those confused by the TP’s fanciful re-imagining of the Constitution, here’s a little refresher course.

Separation of Church and State

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” — Amendment I

O’Donnell is technically correct: the actual words “separation of church and state” never appear in the first amendment, nor anywhere, in the Constitution.  That phrase came from contemporary statements by Jefferson and Madison, who both rejoiced that the Bill of Rights firmly established “a permanent wall of separation,” reflecting the universal desire of the Founding Fathers and the American people. They were intensely concerned that their new nation avoid the fights over state religion and consequent persecutions, tyranny, and civil wars that had devastated England and Europe for centuries.

As confirmation of this well-documented intent, over twenty major Supreme Court decisions have resoundedly confirmed the Constitution’s separation of church and state.  In response, O’Donnell and friends can offer but a flimsy, grammarian sophistry.  (TPM to Chrissie: the words “Bill of Rights” aren’t even in the The Bill of Rights.)  Interestingly, while TPers are quick to claim the First Amendment does not say church & state should be separate, they never explain what it supposedly does say.

The Right to Keep and Bear Arms

“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.”  — Amendment II

If sheer volume of words is a guide, the Second Amendment is by far the TP’s favorite section of the Constitution.  They should be glad that a truly strict interpretation has not not been applied.  Per 18th century syntax, that opening clause grants one the right to keep and bear arms only as a member of a well regulated militia — and a dozen skinheads shooting cans in Idaho is not what the Founding Fathers had in mind.

Written by some former minutemen, the Second Amendment has not aged well.  Our present day militia is called the National Guard.  Forced to adapt this amendment to modern times, the courts have chosen an exceedingly broad interpretation, granting the government powers based on the “well-regulated” part (shotgun? yes; flamethrower? no), while generously ignoring the militia membership requirement for citizens.  The interpretive pedant could also point out that, strictly, there’s nothing about protecting one’s right to keep and wear armor.

Unconstitutionality of The Federal income Tax

TPers’ aversion to taxation exceeds that of the Wicked Witch of the West to water buckets.  With increasing brazenness, they matter-of-factly state that the federal income tax is unconstitutional.

Now, considering its import and broad scope, the Constitution is a surprisingly short document.  So it seems a bit sloppy for the TPers to have missed Article 1, Section 8, which states:

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…. “

and then goes on to give a long list, known as the enumerated powers, of all the things Congress can do, then finishes by further granting Congress power “to make all Laws necessary and proper for carrying into execution the foregoing Powers….” Stricties claim this is a narrow permission list.  But beginning with Marshall, every Supreme Court has confirmed that the seventeen clauses of wide-ranging enumerated powers permit Congress considerable “discretion with respect to means … to enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”

If Art I, Sec 8 was not convincing enough, Amendment XVI, passed in 1913, puts the taxation question to rest:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived….”

There are even those who insist the USPS is unconstitutional, perhaps based on the obscure wording of this Art 1, Sec 8 clause:

“The Congress shall have Power … [t]o establish Post Offices and post Roads….”

Ah!  But the TP has found a way to get around the enumerated powers, with a trick last employed by the Confederacy.

State’s Rights

TPers are gaga for States’ Rights — the concept that ultimate sovereignty lies not with the United States, but rather with each individual state.  As proof, they cite Amendment X:

“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.”

The Tenth Amendment, they (O’Donnell, apparently, excepted) argue, negates Art 1 Sec 8, leaving the Federal Government with almost no enumerated powers, meaning nearly every federal law ever passed can be ignored.  But the Supreme Court ( United States v. Sprague, 1931) found that the Tenth amendment “added nothing to the instrument as originally ratified.”

It defies credulity to imagine the Founding Fathers carefully codifying their highest ideals into federal law, only to immediately add an amendment that permitted lesser jurisdictions to ignore those ideals —  thus undermining majority rule and rendering the federal democracy non-functional.

The Party of Nullify

Also known as Nullification, this principle was first proposed during the late 1820’s, when Georgia wished to circumvent Federal Indian treaties so they could to drive the remaining Indians off their land.  The Supreme Court ruled (albeit too late for the Indians) against Georgia.

In 1832, South Carolina’s legislature, claiming State’s Rights to ignore federal tariffs designed to help (largely Northern) industry, passed a resolution to secede if the tariffs were not abolished. In response, President Jackson sternly declared

“the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”

The Palmetto state claimed the right to Nullify again in 1860 over another issue.

Today, TPers turn to Nullification as cover to reject any federal statute they don’t care for.  Not just “obamacare”, but also women’s choice, gay equality, social security numbers, and, as always, those evil taxes.  When a TP candidate mentions the Tenth Amendment, it’s nothing less than a coded threat to secede.

“Read Carefully Before Operating”

In retrospect, TPers should rethink their professed love for the Constitution.  Their vision of America is clearly at odds with that of its authors.  Still, had the TPers bothered to either read the Constitution onlinedownload it, or ask their buddies at the Heritage Foundation to send them a free copy, they’d have discovered a nifty way to rewrite the Constitution to their liking — the simple how-to instructions are laid out right there in Article V.  Maybe getting two-thirds of fellow Americans to agree with their crack-pot vision seemed a little daunting. So instead, TPers have chosen to simply ignore the law of the land.

For a centuries-old, hashed-out compromise, the US Constitution was written with prodigious clarity and amazing foresight.  It was never perfect, but frequent revision and reasoned interpretation has allowed it to keep up fairly well with developments. It’s the user’s manual thoughtfully left by the Founding Fathers in the glove compartment of our nation.  Anyone seeking to operate the machinery of government should first thoroughly familiarize themselves with it.

(c) 2010 by ‘tamerlane.’  All Rights reserved.

26 Responses to Constitutional Refresher Course

  1. littleisis says:

    It’s the user’s manual thoughtfully left by the Founding Fathers in the glove compartment of our nation. Anyone seeking to operate the machinery of government should first thoroughly familiarize themselves with it.

    That is a fantastic analogy Tamerlane. TPers would also gibble about how “liberal” public school systems are, but that is a load of crap. One of my AP Government textbooks in my senior year of High School actually questioned the first amendment and whether it actually did separate church and state, just like the Teabaggers do.

  2. Fionnchú says:

    I debated respectfully a student who works transporting guns. He argued that Vermont NH had lower crime than NY, Maryland, DC, and Cal due to the New England states with more liberal gun laws. I countered that the cultures, habits, sports, hunts, and lack of gangs and urban woes played a larger role. He replied that AZ NV might be a better comparison as neighboring states with the similar demographics and endemic drug and border problems but lower crime that he attributed in part to looser gun laws. Then I contrasted Butte with LA counties as to attitudes. Even Orange Co. may have different laws than LA for gun owners, he noted. Any of your insight here?

    As for well-regulated militia, you and I agree. This always bugs me, how the first clause is ignored. Why such willful myopia?

    • tamerlane says:

      NYC has become very safe, actually. No matter how you crunch the numbers, gun ownership never equates to low crime rates. And, as one of my favorite philosophers said, “handguns are made for killing, they ain’t no good for nothin’ else. And if you like to drink your whiskey, you might even shoot yourself.”

      I’m satisfied with a broad interpretation of the 2nd Amendment that grants rights under regulation. My point above was the TPers et al., can’t have their cake and eat it too viz. strict v. broad interpretation.

  3. ANonOMouse says:

    Excellent TL…..Thanks

  4. ducksoup says:

    Antonin Scalia claims that since the word “privacy” does not appear in our Constitution, the Constitution does NOT protect a right to privacy.

    But, undeterred by the fact that the word “corporations” also does NOT appear in our Constitution, he moves full throttle ahead to give corporations the same rights as humans to contribute money to political campaigns.

    Scalia is too smart to really believe that stuff, so we have to conclude that Antonin Scalia is a very dishonest Justice

    • tamerlane says:

      None of these people are stupid — it takes a very active mind to come up with all these mental gymnastics. But they all do have a sort of brain damage, which keeps what’s real isolated from what they wish were real. Scalia belongs in the insane asylum, not the SC.

  5. ANonOMouse says:

    They’re already responding to you Tamer! :-)

    • tamerlane says:

      OK, I just threw up in my mouth a bit.

    • Adrienne in CA says:

      Speaking of strict interpretation:

      1 Corinthians 14:34-35 (NIV): “Women should remain silent in the assemblies. They are not allowed to speak, but must be in submission, as the Law says. If they want to inquire about something, they should ask their own husbands at home; for it is disgraceful for a woman to speak in the assembly”.

      1 Timothy 2:11-12,(NIV): “A woman should learn in quietness and full submission. I do not permit a woman to teach or to have authority over a man; she must be silent”.

      You’re out of line, sister.


  6. Sima says:

    Excellent post and summary, just excellent.

    The feds are arguing in court that people have no right to choose the food they want to eat either. Apparently that’s not in the Constitution, along with the right to privacy, etc, etc. (This is over a raw milk. I drink and use raw milk, so I’m bombarded with this stuff).

    • tamerlane says:

      Elaborate, please, on this milk ban. I used to use fresh goat’s milk — I mean fresh: within an hour or two of milking. Unpasteurized milk can pose a serious health threat if not handled & stored properly, so regulations (but not total bans) are in order.

  7. Alexei says:

    Good post. :)

    Not to quibble too hard, but you missed a couple things on your tax discussion. Art 1, Sect 9 contains this part:

    “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

    This was the clause that caused the problem for the income tax, since it’s a direct tax on the people. You’re mostly correct in that it doesn’t forbid an income tax, per say. It simply limits how it could be implemented.

    Oh, and it was the XVI Ammendment, ratified in 1913, that instituted the income tax, not the XII. Ammendment XII (ratified in 1804, btw) governs how the president and vice president are chosen, directing electors to vote for both President and Vice President. The Adams administration’s division and the near armed conflict over the election of 1800 showed the folly of the original method.

    I don’t think I’ve ever heard someone claim the post office unconstitutional. Inept and inefficient, yes. UnConstitutional? You’re right…that IS cooky.

    Re: Ammendment X, I think you’re mis-interpreting what some people are saying. Or maybe not. I can only speak for myself, but I read that as saying “If it ain’t a power already granted Congress, Congress doesn’t have it”, not as (like you claim) “throw out Art 1, Sec 8”. You’ll notice that future ammendments, such as Ammendment XIV, explicitly state that Congress shall have the power to make laws about the subject matter of the ammendement. Since, in many cases, that subject matter was not included in Congress’ original powers, it had to be added. The problem I have is not in the powers that Congress was given, but in the legaleeze that is used to twist the Constitution’s wording to co-opt powers that it should not have. I took an HR class a year and a half ago, and was amazed at the extent of federal employment laws. But what amazed me more was the sheer sophistry used to turn regulation between the states into authority to dictate the tiniest of minutiae on hiring and firing decisions, even if the business in question is completely local.

    I’ll quote Madison here, from Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

    Quick question for you, if you don’t mind. I hadn’t heard of that 1832 tarrif fight in South Carolina. What was the tarrif in question? I’m just curious what about it caused so much consternation.

    • tamerlane says:

      Thanks for pointing out my roman numeral typo – it is indeed the 16th amendment, not the 12th, that specifically permits income taxes. The article has been revised to note this correction.

      And, while an income tax had been levied during the Civil War without ever being ruled unconstitutional, it is the 16th which directly repealed any possible restrictions in Art I Sec 9. It was passed in response to Pollock v. Farmer’s Loan, which had been seen as sheltering the very rich from paying their fair share of taxes.

      The Tariff opposed by South Carolina was the so-called “Tariff of Abominations” passed in 1828. It affected a wide range raw goods in both North and South, but southerners were particularly incensed, as they felt it favored northern industry at the expense of southern agrarianism. Under even the strictest interpretation, though, the tariff fell within the enumerated powers.

      My representation of modern nullifiers’ arguments is based in part on views expressed at the links provided. In any case, the 10th is the crux of all such arguments. As I noted, US v. Sprague ruled that the 10th added nothing new.

      The anti-federalist attempt to limit the Constitution was ended for good by US v. Fisher (1805) and McCulloch v. Maryland (1819), which established the principle of implied powers. In the latter decision, Marshall wrote of the necessity and eminent rationality of implied powers:

      “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves…..”

      Now, you may bemoan the defeat of the anti-federalist movement, but you can’t just up and impose its views on the nation two centuries later. The SC rulings mentioned above are the official interpretation; they are the law of the land. As a JG, surely you are not questioning the principle of judicial review!

      So, you can either convince a SCOTUS to reverse two centuries of predecessors’ rulings, or you can convince a majority of your fellow citizens to rewrite the original instrument. Until then, any efforts to undermine or resist the Constitution as it currently exists is tantamount to illegal rebellion.

      • Alexei says:

        Thanks for the clarification on that tariff. Now that you spell it out I think it’s ringing a bell from HS, all those years ago.

        I certainly am not objecting to judicial review. It just seems some of the arguments made in that review are a bit…..airy and unconvincing. Though I’m not a JD, FYI, which is what I assume you meant. I like to read a lot, though, and I think I stayed at a Holiday Inn Express once :) Gotta hand it to you, you seem to have a good grasp of case law.

        Anyway, it’s always good reading you. I find it helps to challenge my assumptions and thought processes. Have a great night. :)

        • tamerlane says:

          You mentioned you were in the Navy, and I musta gotten you confused with that TV show, JAG. I seem more inclined than you to broaden the scope of “power to make all laws proper and necessary in to Execution” of Congress’ mandate to “provide for the common Defence and general Welfare.”

      • Alexei says:

        Trust me, dude, I am nowhere NEAR as cool as that guy in JAG. That dude can do it all! No, I’m a submariner.
        My degree’s in Mechanical Engineering, and I’m finishing up an MBA in a couple months.

        Let me give you an example of the kind of thing that burns me up, and see what you make of it. During that HR class I mentioned above, I got more and more frustrated about some of the rules the Feds imposed, so I asked the Professor how they can get away with it. Suppose I ran a pizza joint or something in town. I buy my ingredients from the local markets, hire kids from the local high school, that whole spiel. I still fall under Federal employments laws. How? How am I engaging in comerce between the states to even be under their jurisdiction? He gave a little chuckle and explained that the rationale the courts accepted (I have no case to site, sorry) went something like this: Someone from the adjacent state MIGHT decide to drive across state lines. While he’s in my state, he MIGHT decide to come into my joint and order a pizza. Once that happens, I am engaged in interstate commerce, and the Feds can tell me what I HAVE to do with my employees. I was floored. I mean….you’ve got to be kidding! I wouldn’t be engagin in commerce between two states then! That guy was in my state, and I sold to him. The fact that he came from elsewhere shouldn’t matter: he’s just a guy, and so am I. How can a thinking adult, let alone a judge, take that argument seriously? MAYBE if the guy didn’t eat the pizza there, but took it back home with him….MAYBE I could buy the argument then. But even that is a HUGE stretch. But yet, that is the kind of severe stretching of words’ meaning that gets used to justify a lot of things these days. It’s sheer sophistry!

        Maybe it’s just that I’m an engineer, and in engineering and science it’s pretty cut and dried. 2+2=4. The earth revolves around the sun. Thermodynamics is what it is. If you want to build a bridge, follow the design and the procedure, and voila! But I read the Constitution and our other founding documents, and it seems pretty cut and dried. To me regulation of commerce between the states means….regulation of commerce BETWEEN THE STATES. You know what I mean? It’s not a complicated document, for crying out loud!

        Does that make sense?

        • tamerlane says:

          Your instructor’s pizza analogy is specious. He’d do better to cite some specific case law. Everyone agrees that the phrase “To regulate Commerce among the several States” is exceedingly vague. The courts have interpreted it to mean that the fed’l gov’t can regulate certain things, but not others. In the early 19th century, it dealt mostly with access to navigable waters. Primarily, it has been used to prevent individual states from obstructing interstate commerce or engaging in protectionism of local industries. Cf. New York’s many attempts to protect its dairy and (yuck!) viniculture, also Philadelphia v. New Jersey.

          Federal minimum wage, workplace safety, etc. laws apply universally. I’m not sure based on what precedent(s), but it’s firmly established. Somebody has to regulate them, and I don’t see the advantage of a patchwork of state or local rules. For the discussion, let me ask: as the hypothetical pizza parlor owner, what disadvantages come from following federal labor standards?

      • Alexei says:

        Geez, it’s been 18 months plus, so my memory is a bit vague as to exactly which rule we were talking about. So I don’t have a great answer to your question. My question to him was more about the principle than anything else, really. I was truly curious about where the authority for the laws and rules was derived, and found the logic of that argument to be…less than satisfying. But not surprising, coming from the realm of lawyers.

  8. Seth says:

    ‘Separation of church and state’ is a red herring.

    The issue many conservatives are concerned with, and have so far proven inept at coming back from the red herring to address, is separation of school and state.

    O’Donnell doesn’t believe that the first amendment (which applies to the workings of the Federal government) precludes local school boards from making decisions about what to teach. Her opponent does – as he indicated at the 2:05 mark of the debate video.

    • tamerlane says:

      Your belief that the Constitution somehow applies to Congress, but not the rest of the country, is flat-out wrong. That premise was rejected over two centuries ago by the Supreme Court. Ten SC rulings specifically declare that the Establishment Clause of the 1st Amendment does apply to local school boards:

      * McCollum v. Board of Education (1948)
      * Engel v. Vitale (1962)
      * Abington School District v. Schempp (1963)
      * Murray v. Curlett (1963)
      * Epperson v. Arkansas (1968)
      * Lemon v. Kurtzman (1971)
      * Stone v. Graham (1980)
      * Edwards v. Aquillard (1987)
      * Lee v. Weisman (1992)
      * Kitzmiller v. Dover Area School District (2005)

      If you and O’Donnell don’t like these rulings, you can either convince the current SCOTUS to reverse them, or you could rewrite the Constitution. Until then, your private religion stays out of public schools.

      • Alexei says:

        I gotta go with Tamerlane on this one, Seth.

        Frankly, though I understood what O’Donnel was trying to say in that quote, she lost me at the evolution thing. I mean seriously? You seriously want to claim that evolution and creationism are on equally solid footing, and should be taught equally?? Seriously????

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