Constitution in Exile?

While liberals and conservatives bash each other on the head about nominations to ambassadorships and secretaries of state and attorneys general, the key issue is judicial nominations. In the battle between Federalists and strict constructionists, the presiding judge and his precedent-setting rulings and opinions are the prize, and the reactionary conservatives are going for broke.

With Bush, they are united in a common cause to return this country to its pastoral and lassaiz faire roots in a nineteenth century slave-labor economy and giant land ownership, including corporate serfdom. And, using Puritan Massachusetts as a model, install a born-again Christian-dominated theocratic government. In order to do this, they must install a radical/reactionary set of judges across the board, from local municipalities to the Supremes. These radical judges (Bush has already appointed, and the Senate has confirmed, over 200 of them), are hell-bent on destroying any vestige of New Dealism or even mildly progressive legislation.

They sometimes call themselves Libertarians, other times Republicans. Everybody else to them is an un-American, or Traitor.

Sadly, most mainstream Republicans don’t even know what is being done in their name. The secret password is “Constitution in Exile,” and Joe Republic hasn’t been inducted into the lodge and hasn’t the faintest.


Lots has been written about this Constitution in Exile (CIE), an eloquent and provocative phrase coined by Supreme Court nominee Judge Douglas Ginsburg, but most of it is in hidden places and certainly nary a whisper of it in the mainstream media. But it breaks down into this:

According to CIE fans, Roosevelt packed the Supreme Court in the 1930’s, and the Supremes helped hijack the Constitution by expanding the powers of the federal government through an overly broad interpretation of the Commerce Clause of the Constitution, thereby substantially eroding state’s rights and, most particularly, corporation’s rights.

Also, wage and hour rules were put into effect, making it all the more difficult for corporations or even small businesses to pay substandard wages and to deny benefits; thus, businesses unfairly suffered in the game of commerce. Social Security was invented, securing a modicum of financial security for people who otherwise are not covered by pension plans.

Most galling, with the Warren court, criminal defendants’ rights were amplified, police powers were restricted and the Exclusionary Rule was promulgated. Further, civil (individual persons’) rights were explicated, to wit: certain rights to privacy, non-discrimination and bias, thus eliminating blacks and other minority groups as legal targets for discrimination.
In other words, Adam Smith was overthrown, and a mild socialism (a very very naughty word in Amerika) was practiced in the US, alleviating working men’s lives, but frustrating bean counters, corporate CEOs and their uber-wealthy absentee landowners.

What is being disregarded by the reactionary neo-conservatives and their fellow travelers, is, of course, the rule of precedent; of the evolution of the law as laws are made, tested, modified, tossed aside or updated and kept and applied in civic intercourse. The CIE fans want to reset the constitutional clock, ignoring over 200 years of political experience and experimentation in American government. They act, talk, and think that the Constitution is set in concrete. Once written, that’s it. They would probably like to amend the document to disallow amendments, but that would be a little much, so they’ll settle for a Supreme Court (and the lesser courts as well) that will render myopic, retrograde decisions on legislation based on a literally retarded interpretation of the Constitution. In fact, they don’t like to think of the Constitution as being “interpreted.” It says what it means and it means what it says. And if you disagree with them, why, go get a 1787 dictionary and look up the meaning of the words.

You say you don’t have a 1787 dictionary? Ok, that’s probably because the first dictionary of American English wasn’t even published until 1806. So, despite their firmly held belief that they know what the framers meant, we still have a need to interpret the words in the here and now, over 218 years later. But if you draw your judicial nominees from a pool of candidates, all of whom just stepped out of the Wayback Machine or are patent bribe-taking, religious cranks, then there is no room for interpretation, and you ignore the wishes of all the people, for whom these judges are nominated to serve in justice.

Let’s do some role-playing here: you’re George Washington. As the young nation’s wealthiest man, you believe most strongly in personal property rights, including the right to own slaves, although you think it an abomination for philosophical but not economic reasons. You are tasked with the job of writing a constitution for a new country. Based on what qualifications? Here’s what: You’re rich! And you own other people! It is plain to see that you certainly know all about natural rights, and can help write a governmental plan that will be a beacon to the world and to future generations.

What a crock. He knew he was a hypocrite. He just couldn’t part with the loot, the slaves included. Same with Jefferson, Madison, Hamilton; the whole bunch. What they did have good in common was that they were educated, and that meant the Enlightenment, and that means personal freedom through personal responsibility. It’s also part of the Masonic credo, but we’ll leave that aside for the moment. So they knew that they were slaves to personal property, so in expiation of their guilt, they laid out a way for future generations to avoid the pit of their sin by instituting a government that could change people’s thoughts, goals and actions in increments over time, just as they were taught to advance in degrees through the Masonic movement, eventually arriving at a just and more perfect society.

For them to conceive that the Constitution was a fixed document, never to be modified, amended, interpreted in varying circumstances and by entirely different kinds of people that the future would produce (and they believed in spiritual evolution, don’t you doubt it) is ludicrous.

They knew that future generations would be better people, that they wouldn’t hold slaves, tax people unfairly, entrap people in economic bondage; they built the mechanisms for the perfection of a civil society and the changes that were going to come into the very Constitution itself. And the first thing they did after they published the first draft was to amend it, giving us our Bill of Rights, pre-eminent among these being the IXth :

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Whoa! Where did that one come from? You mean it means what it says? So if popular opinion and actions, over time, says that the government, state or federal, can’t read my mail, raid my bedroom, order me to say “under God” in school, oppose my marriage to whomever, etc., then these are rights, under the Constitution, not enumerated, but rights nonetheless, because we, the people, say so?

Yes, yes, yes.

The New Deal, and the Warren court and the Civil Rights movement that came after, were attempts by the Democrats and responsible Republicans, following in the footsteps of the Wobblies, the communists, the Socialists, and progressive others, to finally enumerate individual, civil and economic rights, as opposed to corporate prerogatives.

Most people grow up eventually; corporations don’t. Corporate rights are a bastard step-child of landowners’ rights, although the drafters of the Constitution would probably be disdainful of corporations being treated under law as individuals, with the modern rights of personhood. Granted, they were used to large corporations, the Hudson’s Bay Company to name one, but they would be sorely pressed, not to say outraged, by the antics of corporations such as the mining companies of Harlan, Kentucky, or Henry Ford’s actions in the strike breaking of his company’s unions. Or an Enron.

The man of the Enlightenment is a civic man, a civil man. Can you imagine Benjamin Franklin, upon seeing a toxic waste dump, approve of the owner of that waste dump in not cleaning it up, a violation of civic responsibility? You think Franklin, or any of the Founding Fathers, would grant tax breaks to that polluter? Contract law or no, no man of the Enlightenment would absolve a corporation of its civic duty and responsibilities. To do so would be horribly immoral, and probably a sin. Almost all of the Founding Fathers were Masons, and Masons help one another and promote the common welfare.

Now the CIE bunch, the fascists (yes, Virginia, America breeds lots of fascists, particularly rich ones), the neo-conservatives and their fellow-travelers, and the super-rich want to bring back Big Brother (King George), throwing over, in a stealth revolution, the civic institutions that the extraordinary common people of this country have managed to make for themselves in their caring for each other over two centuries. Civic responsibility goes out the window, along with personal privacy, due diligence, habeas corpus, presumption of innocence, protection against extended detention and torture, true freedom of speech and assembly, and more. And they give each other tax breaks while they’re at it.

Your elected servants are pawns of the ultra-wealthy and the multi-national corporations, collaborating in their own imprisonment in a corporate America. Rather than providing for the common welfare, corporate American and the uber-rich are in fact demanding a return to the spurned European theocratic-feudal-fascist model, using the very tools of the Constitution itself and its servants to destroy it, demanding that the rule of the jungle be reinstated, where only hunters with bigger clubs survive, and the little guy is lunch.

Note: this was originally posted on Daily Kos, Apr 21, 2005 at 20:58 PDT