Constitution 101

The Court is having a busy week.  The last decisions of the term were handed down, and a confirmation hearing is underway.  Time for every tea-bagger with what would have been considered a laughably naive understanding of the Constitution 200 years ago to express their ignorance.

My hometown paper, the Jamestown Post-Journal, reported on the Christian Legal Society (CLS) v Martinez case, where the Court ruled that Hastings was within its rights in denying funding to a group that excludes gays.  One of the regular posters actually took the position that the federal courts shouldn’t be involved at all in the matter, since education is not a power expressly delegated to the federal government under the Constitution.  See, a little bit of knowledge is a dangerous thing.  I don’t know if he heard it from Glenn Beck or what, but in the tea-baggers rush to return to a pre-industrial government in a post-industrial world they seem to rush right past the Civil War.  Although it lay dormant for almost 100 years, the 14th amendment is pretty specific in its requirement that states must provide equal protection and due process of the law to its citizens.  States can’t discriminate any more than the federal government can.  I’m pretty sure even Rand Paul gets that.  That includes when it undertakes to provide public education (Hastings is part of the University of California). 

It is true that a Venn diagram showing the division of powers between the federal government and the states would reserve power over education to the states; other than some failed proposals for a national university, I’m not aware of any Founding Father who envisioned an active role for the federal government in the schoolhouse.  But the Republic has always had an interest in fostering pubic education as an essential part of its survival.  Even before the Constitution was ratified the Continental Congress provided for pubic education in the western territories.  Especially in the last 50 years, the amount of federal money poured into education has provided the feds with the power to see how it is spent, and the duty to see that it is not spent unconstitutionally.  Brown v. Board.  Title IX.  How could anyone possibly maintain that the federal government is constitutionally barred from the field of education?  It could only be through an obsessive focus on 1787 and complete disregard for all that has happened since, including amendments to the Constitution.  I just wish I felt surer that all the cries to go back to the way of the Founding Fathers was limited to constitutional theory, and didn’t represent a deeper resentment of the fundamental changes our nation has gone through in the past few centuries.

Nothing explosive from the Kagan hearings.  I was a little sickened to see her cheerfully endorse militarism, but under the circumstances what else could she do?  She can’t appear anti-military, not in this climate.  If they can trash Thurgood Marshall for opening doors for black kids, what would they do to someone who closed the door to recruiters?

Elephant Droppings

or How Republicans Shit All Over the Country This Week.

Displaying the herd mentality they have used so effectively in the past, Republican lieders (sic) this week united around pariahs Joe Barton and Jim Bunning, ensuring that the outrageous will continue to be considered mainstream and that the reason of the Democrats will be balanced (read “stymied”) by the madness of the Right.  With Rand Paul headlining GOP fundraisers, the Arizona governor displaying unrepentant racism, and Karl Rove raising millions for Sharon “A Chicken in Every Doctor’s Office” Angle’s campaign to strip Utah of any dignity or influence, it’s been a banner week for every freedom-loving, Founding Fathers-worshipping patriot who’s thought, “Fuck it, if we can’t win elections, let’s screw the country as hard as we can.”

For a minute it looked like Barton might actually lose his position as ranking minority member of the House Energy Committee (you know, the one in charge of things like off-shore drilling – that’s what gave Barton the opportunity to personally apologize to BP for our coasts getting in the way of their oil).  When Boehner and other top Republicans realized that the Republican Study Committee’s talking points memo, which over 100 of them signed off on, and from which Barton lifted key toadyisms for his apology – the one to BP, not the one for saying out loud what the Republicans were thinking – had even usually tacitrun sheeple choking with outrage, they made a fuss of condemning their own position and damning the messenger who leaked it.  Just for a moment it appeared that it might have finally dawned on the leadership that Barton’s was not the face they wanted to put on their energy policy.  But in the end Barton got to keep his spot, ensuring that if the Republicans do somehow manage to win back the House in November and Barton becomes Chairman of the Energy Committee, BP stock will soar.  Imagine, they guy who apologized to BP could be the Energy Czar of the House.

The BP stock in Reagan-appointed (!) Federal judge Marty Feldman’s personal portfolio, structured to ensure his great, great grandchildren will enjoy the best of everything except work ethics, is also looking better now that, thanks to Feldman’s judicial activism, the moratorium on deep water drilling has been struck down.  Besides protecting literally hundreds of shareholders (at an incalculable expense to tens of millions of Americans), an additional benefit of Young Frankenfeldman’s decision is that it allows Republicans to continue to tar Obama as ineffective while simultaneously checking his ability to see that another disaster does not occur.  Enriching the few at the expense of the multitudes is not only a Republican article of faith, it also serves to undermine the economy, in turn making the prospects for retaking the House that much brighter. 

Louisiana Governor Jindal, who knows something about the consequences of catastrophic collapses of a local economy, was quick to praise Judge Feldman’s judicial activism in vitiating an executive order.  Yes, I know, “activism” is a pejorative term reserved for liberal judges, but in anticipation of Kagan’s confirmation hearing this week, I’m taking an opening shot against the “What Would George Washington Do?” tea-baggers constitutional theory of originalism.  Normally, they take the Jeffersonian “Where is it written in the Constitution” position, one that otherwise hasn’t been argued seriously in over 200 years.  But in this case, since the Founding Fathers didn’t recognize corporations in the Constitution (unlike, say, recognizing black people in the 14th amendment), well, someone has to speak up for Big Oil.  Thurgood Marshall spoke up for blacks and is accused of trashing the Constitution, while Roberts speaks up for corporations, which are NOT EVEN MENTIONED in the Constitution and elevates them to personhood, yet is somehow regarded as a protector of “original intent”.  Venerating the Constitution while trashing it is a contortionist trick taught to young Republicans while they are still limber.  I’ll have more to say on this as the Kagan hearings unfold.

Not that I’m suggesting Republicans are purposefully trashing the country (wait, yes I am).  But what else would explain the Republican stampede to Jim Bunning’s lonely outpost?  Bunning, you’ll remember, was a few months ago the lone holdout senator against the extension of unemployment benefits.  Whan a colleague made a late night appeal to him to drop his opposition, his eloquent reply to the millions of Americans poised to fall through the safety net was, “Tough shit.”  Well, Bunning doesn’t have to take the heat anymore, since ALL the Senate Republicans voted this week to block the extension of benefits.  Now that the economy has actually turned around, Republicans ensured this week that millions of Americans who desperately need and will spend every penny of that check (kind of the whole point behind a “stimulus” package) will be cut loose to fend for themselves.  Even though the “stimulus” had been watered down to the point where it barely even deserves the name, every single Republican voted against it.  If there was a a bigger monkey wrench to thrown into the economy this week, I can’t imagine what it could have been.  

Rove, Engle and Rand can wait.  Next up is the Kagan confirmation hearing.  Lots to say about that next time.