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Occupy Wall Street poster: 'You cannot evict an idea whose time has come'
OWS is a critique of the system of American democracy and how the engines and devices of American democracy have been perverted for the benefit of the 1 percent and to the disadvantage of the 99 percent. This critique is clearly about the Constitution. And if we look at the text of the Constitution, we will see why that is so.

The American Constitution is the framework for a democratic republic. A democratic republic, in turn, is system of government that is designed to be responsive to the people of the United States as a whole, and not to the wealthiest 1 percent.

[...] A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter-- our Constitution.  - Jack Balkin

Part 2 of 2. (Here is Part 1.)

As Occupy continues to march forward, it is important that we try to understand the role the Constitution, and the interpretation of it, will necessarily play in the articulation, execution and achievement of Occupy and progressive objectives. In the Jack Balkin article I excerpted above, I think he really gets to the heart of the Constitutional matter regarding what Occupy is about. In this piece, I will discuss two theories of constitutional interpretation that I believe are relevant to how Occupy approaches the Constitutional questions that its objectives raise.

I've written before (see, for example, Prof. Jack Balkin on Living Originalism and the constitutionality of the Affordable Care Act) and I attended a conference at Yale discussing the ideas in Balkin's book, Living Originalism. These writings and the conference got me to thinking about how to impart the critical importance of these issues to fellow progressives. My article last week and what follows is my meager attempt to do so.

Last week I concentrated on Professor Sanford Levinson's idea of a constitutional convention. This week, I turn to the related but somewhat competing ideas of Yale Law professors Balkin and Bruce Ackerman. Ackerman's theory posits the idea of "Constitutional Moments." In a review of Ackerman's 1991 book on this theme, WE THE PEOPLE: FOUNDATIONS, Cristy Scott described it thusly:

Ackerman postulates a constitutional structure that grants the Supreme Court the role of preserving law created by the People during highly energized moments of collective political activity. During these periods of extraordinary political mobilization, the People clearly express their wishes concerning issues of higher law. As the energy and collectivity of the populace fades and we return to "politics as usual," the Supreme Court must modify its constitutional adjudication to account for the law created during this constitutional moment, and the Court actively must protect this new constitutional law from erosion or violation. Because of this two-tiered lawmaking structure, consisting of "constitutional moments" and "politics as usual," Ackerman calls the American system a "dualist democracy."

In June, the Roberts Court will hand down its decision regarding the constitutionality of the Affordable Care Act and the individual mandate. Depending on the reasoning followed, this could be the most significant decision regarding our system of government since 1937, when the New Deal style national government became "constitutionalized." What can it mean for progressives generally and Occupy specifically? I'll explore that and how the theories expounded by Professors Ackerman and Balkin provide ways of thinking, not only about the ACA decision, but the Constitution itself, in a manner which may lead to smart strategic activism by progressives and Occupy. A discussion on these themes will occur on the flip.

(Continue reading below the fold)  

Living Originalism
The progressive case for Originalism

Before discussing in detail the relevance of these theories, I think it is important that we understand how they differ. First to recapitulate Professor Balkin's central thesis:

[F]idelity to original meaning and the idea of a Living Constitution that adapts to changing time and conditions are not rival theories of constitutional interpretation; they are actually compatible positions. When we understand how and why they are compatible, we will also understand how democratically legitimate constitutional change that is faithful to the Constitution's original meaning occurs in the American constitutional system.[...] Understood as an account of the process of constitutional decisionmaking, Living Constitutionalism  makes a great deal of sense . It also has the advantage of describing the actual history of our nation. - Living Originalism, pp. 277-78.
My own articulation of the idea is contained in this post:
I reject the idea that proponents of a Living Constitution are not originalists, in the sense that the idea of a Living Constitution is to promote original Constitutional purpose to current circumstances.

My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints.

The first great Chief Justice, John Marshall, did yeoman work in establishing this role and approach for the Supreme Court. I argue that Marshall's jurisprudence established that Constitutional interpretation requires both respect for the original purpose and application of Common Law principles to discern the proper application of original purpose to the specific case presented.

The phrase "Living Constitution" is often used to disparage this approach. But I think, properly understood, the phrase is very appropriate - the purpose of the Constitution lives and grows - and the original PURPOSES are essential to that growth - by understanding the WHY the Framers wrote what they wrote and serving the original PURPOSE by transposing that purpose upon the specific case.

I think Balkin and I are essentially saying the same thing. Balkin also takes a moment to describe how his theory differs from Professor Ackerman's. I relate the most significant for our purposes here:
Ackerman book
We The People: Transformations

[T]here are [...] important differences [between Balkin and Ackerman]  which produce a different account of both constitutional revolutions and a living constitutionalism.

First, Ackerman's theory focuses only on the very largest changes in constitutional development that produce new constitutional  regimes like Reconstruction and The New Deal. [...] Ackerman's model of change is not gradual, but revolutionary. [...]

Second, Ackerman argues that regime changes are democratically legitimate because they enjoy the self-conscious, mobilized, and broad support of the American people. This means that the American People [...] must understand that the Constitution is being amended [...] and they must actively support these changes [...]

Third, Ackerman's constitutional moments [...] involve 'unconventional adaptations' of existing constitutional machinery that the people accept or reject. [...] - Living Originalism, pp. 309-12.

What does this all have to do with Occupy and progressives? A lot I think. While I believe Professor Balkin's thesis the more accurate as a matter of constitutional interpretation, I believe Professor Ackerman's may be the more accurate in terms of describing  the constitutional history of the nation. Constitutional transformation really did happen the way Ackerman describes them.

Further, in terms of Occupy and similar progressive movements, the Ackerman model is clearly the more populist and the model more geared to political action. In this sense, it is the more immediately relevant to Occupy and other progressive movements.

In a conversation I had with Professor Ackerman, I told him "you are a populist." He responded "precisely." Progressivism and Occupy are populist movements. And Professor Ackerman's constitutional theories truly adapt well to today's progressivism.

But change is not enough. Transformation implies endurance. How can the progressive change we want not be fleeting? How is it legitimized and institutionalized? Here is where Professor Balkin's theory becomes critical. It is a sort of second step to constitutional transformation.

To my way of thinking progressivism and Occupy must look to both the Ackerman approach and the Balkin approach.

But there are other concerns. It seems to me that the top worry in terms of the Constitution and its interpretation for progressives and Occupy is that many, if not most, of the Constitutional values we cherish are under assault by a radical and extreme conservative Republican movement that may very well have a working majority of the Supreme Court.

Are we facing a conservative Constitutional Moment? If the Roberts Court strikes down ACA (and even more ominously, does it by signaling a return to the Lochner Era) and in the fall strikes down affirmative action (Grutter, the 2003 SCOTUS decision reaffirming the constitutionality of affirmative action) is on the table and after Parents Involved, a case where the Roberts Court struck down locally devised desegregation plans), the odds are overwhelming it will be overturned), AND THEN Romney wins the presidency and Republicans control the Congress, can extreme and radical Republicans legitimately claim THEIR Constitutional Moment has come?

I've written before that every progressive must work hard for the reelection of President Obama if for no other reason than his defeat would imperil every progressive value we cherish and in ways we've never seen in recent history.

Today, the Supreme Court is the ultimate prize. Our Constitution is at risk. Our opportunity for progressive values being further enshrined in Our Constitution is in peril.

A Constitutional Moment may well be at hand. We must fight for our values as hard as we can. And that means fighting for President Obama's reelection so that he can name progressive jurists to the courts, especially the Supreme Court.

Of course there are many other monumental battles to be fought, but for my money, this is the biggest one we face today.

Originally posted to Daily Kos on Sun May 13, 2012 at 03:00 PM PDT.

Also republished by Occupy Wall Street, Progressive Hippie, and ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement.

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Comment Preferences

  •  Thank you for this. (15+ / 0-)

    I am thrilled to see Occupy mentioned on the front page at all.

    And these are the conversations I would like to see us having.

    As well as working to re-elect President Obama, we need to have an army of folks volunteering for progressives out there. I saw it in Texas during 2008 - Obama volunteers flocked to help him but the progressive candidates lost out big time. I think it hurt Texas in the short run though I hadn't realized how much at the time.

  •  Terrific Article (5+ / 0-)

    I am going to read it a few more times just to absorb it and then look for the books mentioned above.

    Again, thanks.

    This head movie makes my eyes rain.

    by The Lone Apple on Sun May 13, 2012 at 03:19:59 PM PDT

  •  Occupy Wall Street is still around? (2+ / 0-)
    Recommended by:
    walkshills, hmi

    Not to sound mocking or anything... I thought that whole movement had died off. You hardly ever hear anything about it anymore.

  •  Some say that only by elections can we... (23+ / 0-)

    ...reform our situation. Some say only a movement can do that.

    Neither is right. We need both. Every great change in U.S. history has originated outside the electoral system. And every one has been confirmed by legislative and/or executive action. One does not happen without the others.

    Part of a movement's task is to fight for political change by elected and appointed leaders, to get them to stand up against those who reject change.

    Part of it is to persuade the general populace that the particular political change being fought for is worthy.

    And part of it is to get replace the elected and appointed leaders who stand in the way of that change.

    Those who argue that one of those parts is all that is needed, that one of them can achieve the needed change on its own are dead wrong.

    Don't tell me what you believe, show me what you do and I will tell you what you believe.

    by Meteor Blades on Sun May 13, 2012 at 03:32:22 PM PDT

    •  To put it more simply, a movement is required to (3+ / 0-)
      Recommended by:
      Chi, Noor B, Liberaltarian

      both focus the country on the needed change, and to pressure the politicians into doing the right thing through legislation.

      I believe the Roberts court is on the same path as the Weimar Republic, and that we will end in tyranny if it is not confronted in the streets. A movement will have to push back against the court's politiization. Only if the court sees little hope of enforcing its decisions, will it change course.

      Likewise, the legislative and executive branches generally only do the right thing when pressured; and there is nothing more effective than streets filled with thousands to bring that pressure to bear.

      The questions is, can a movement still succeed in the era of Bush unconstitutional security measures. My answer to that would be --- yes, but only by breaking those laws which are not legitimate.  Laws curbing the ability of the people to assemble and address the government for redress of grievances strike so strongly at the foundations of our Republic they must be repudiated with all possible force.

      Unfortunately, we are already under a regime of tyranny, insofar as the press and the police powers conspire to repress such gatherings and to keep the country ignorant of them.

      That gives us two choices, I am afraid. Both of which entail revolutionary activity. The revolution can take the form of non-violence, or it can embrace violence. Either way, a lot of people will be hurt, blood will be spilled, and some people may die.

      Are we ready for that?

    •  Yes, Active participation in pursuit of liberties (2+ / 0-)
      Recommended by:
      Liberaltarian, yaque

      and further improvement in Civil Rights is the ONLY way we can make a difference.

      Our politicians are as active for us as we are active in reminding them who elected them and why.

      PLEASE Stop Mitt (the Pitts) Romney from stealing the Presidential Election!

      by laserhaas on Sun May 13, 2012 at 05:25:20 PM PDT

      [ Parent ]

  •  do you trust Obama to actually appoint (7+ / 0-)

    "progressives" to the Supreme Court?  And the Democrats to stand firm on confirming them, in the face of what we have seen from the Republicans?

    I suppose it will depend on us "making him" do it, which does, of course, start with our getting him re-elected, and then staying on the case, rather than bask in the warm glow of accomplishment like we did the last time.

    don't always believe what you think

    by claude on Sun May 13, 2012 at 03:35:08 PM PDT

  •  Let's hope (2+ / 0-)
    Recommended by:
    hmi, Simplify

    that SCOTUS, corrupt as it is, has the good sense to deny Congress the power to make you buy ANYTHING.

    Congress' reach into your wallet has been limited to the power to TAX and SPEND tax revenue, since the constitution's inception.

    Congress has never, ever been allowed to force citizens to spend any portion of their non-taxable income on any specific product or service.  Should Congress acquire this unique, new and shiny power, you can bet  there will be no limit to the lobbying, which is of course, a polite word for "bribery" and there will equally be no limit to the surrender of congress-critters, all of whom are easily bought, have feet and entire lower bodies of clay and who have no compunction whatsoever about spending, gambling, stealing and letting those who steal, from you and there will henceforth be an endless parade of special interests who will claim that "everybody needs" their product or service.

    In fact, insurance, is and was and always will be a service that no one needs.  Many people elect to buy insurance because they choose not to risk a possibly greater loss than the amount they will pay in premiums.

    However, the minute, the nanosecond insurance of any type is declared a national "need" over food, health care, housing, clean air and other obvious and actual "needs" I am packing up and leaving this place for good.

    This is the ultimate consumer fuckover: forcing 3.1 BILLION people to purchase a vanilla policy with a low ($100k annual) limit, which policy provides the most basic health care and hospitalization coverage available in the private insurance market.

    Since most people self-treat and do not visit doctors for most ailments;  and most do not regularly visit doctors, that will for the most part be a 3.1 billion premium dollar bonanza for the insurance industry.

    And, in exchange for this free money, is the insurance industry obliged to pay for catastrophic care if needed by anyone insured under the plan?


    Yes, that is correct.  The insurance industry is NOT obliged to pay for your catastrophic care.  So if at the end of your policy year you have used up all of your insurance benefits, you are JUST as fucked as if you had no insurance.

    That is and has been the problem.

    After the ACA it remains the problem.

    The fact that insurers waived stop loss on health policies is NO BIG THING.  People rarely hit stop loss on health policies because they don't stay with the same insurer long enough to hit it.  Stop loss is usually an issue in disability and catastrophic care issues.

    So, the insurance industry is poised to make a killing on the ACA.  

    You?  You will get your vanilla coverage, just make sure you don't get really sick because you will not receive the health care you need once you exhaust the paultry benefit under the standardized ACA policy.

    Please SCOTUS, tell congress it cannot abuse the Commerce clause like this.

    And stuff all that New Deal BULLSHIT.

    the ACA is NO NEW DEAL and Obama IS NO FDR.

    Get over it, you elected a ringer and all he has done is fatten big bank, big insurance, big food, big pharma and big fucking CRIME's coffers.

    The ACA is a stealthy way (well ok not so stealthy) of expanding commerce to give Congress TOTAL CONTROL OVER HOW YOU SPEND YOUR INCOME.

    We need nationalized health care OR a nationalized single health care payer funded by taxes ON EVERYONE.

    The ACA is a reeking pile of legislative manure that should be burned, buried and the earth salted.

    •  I won't rec this comment, because (6+ / 0-)

      you are a bit over the top with your rhetoric, BUT I completely agree that Congress should not be requiring me to support a for-profit insurance industry with my money.  However much ACA may be helping some people, including myself, it is a sorry excuse for failing to get non-profit nationalized healthcare.

      Despite all the happy talk about ACA, it remains an insurance industry boondoggle and a victory for the Corporatocrisy, not the People.

      My sick child, your aging parent, our injured neighbor should not be made health-"care" corporation profit  vehicles, and it is a national shame and disgrace, not to mention inhumane, barbaric and uncivilized,  to have done so.

      don't always believe what you think

      by claude on Sun May 13, 2012 at 03:50:20 PM PDT

      [ Parent ]

  •  True but... (2+ / 0-)
    Recommended by:
    Chi, blueoasis

    I hope Obama will nominate true progressives should he have the chance.

  •  Were the writers of the Constitution 1%'ers? (5+ / 0-)
    Recommended by:
    MKDAWUSS, claude, a2nite, Amber6541, blueoasis

    Most of them probably were from the richest 1% in 1789.
    If you swallow whole the 'originalist' doctrine, you shouldn't be too surprised to see the constitution as supporting the 1%.

    I prefer minds that can expand what I call their "ethical horizons".  If you can be brought up thinking "all men are created equal" applies only to males, but can come to accept that it should apply to women as well, that's an example of what I call expanding your ethical horizon.  If society as a whole could never expand its ethical horizons, we'd still be living under a system of literal interpretation of Old Testament rules such as "an eye for an eye".  Or worse.

    When Joe Biden said he's comfortable with the idea of gay marriage, he may have shown he has an inconveniently open mouth, but he also showed he has an open mind.

    We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

    by david78209 on Sun May 13, 2012 at 03:40:28 PM PDT

    •  That's why the evil 1% are winning; they (1+ / 0-)
      Recommended by:

      understand that "we the people" didn't include most of us. We just got rid of the king and got a local boss.  This country was created under false pretenses. It was created for evil rich people 2 own Africans & their descendants permanently, and 2 take over the continent by exterminating the native people's.

      Since this country was created to perpetrate crimes against humanity, I'm not surprised we are confused. The civil war didn't fix the original problem.

       The New Deal & civil rights were a start, but now evil 1%?want 2 return 2 the bad old days by rape, robbery & pilage of the 19th century & before.

      The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

      by a2nite on Sun May 13, 2012 at 04:28:09 PM PDT

      [ Parent ]

    •  Yes, the Founders were titled and well off. (5+ / 0-)

      For the most part. But that does not mean what they wrote - the system of government they designed - "supported" the 1% any more than it supported everyone else. OK, almost everyone ... in the 1780's-90's.

      Sure there were compromises, many of which got resolved better as time went on. In its entirety, however, the structure of our government has been durable over a huge array of conditions and more than two centuries.

      Can the branches as established in the Constitution be gamed by money? By pernicious influences? Sure. Figure out a system that can't ... and lacking one, make our present one better.

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Sun May 13, 2012 at 04:29:41 PM PDT

      [ Parent ]

    •  Your frame of reference is flawed (2+ / 0-)
      Recommended by:
      word is bond, david78209

      Jefferson was certainly wealthy, yet he wrote this:

      "Men by their constitutions are naturally divided into two parties: 1. Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depositary of the public interests. In every country these two parties exist, and in every one where they are free to think, speak, and write, they will declare themselves. Call them, therefore, Liberals and Serviles, Jacobins and Ultras, Whigs and Tories, Republicans and Federalists, Aristocrats and Democrats, or by whatever name you please, they are the same parties still and pursue the same object. The last one of Aristocrats and Democrats is the true one expressing the essence of all." --Thomas Jefferson to Henry Lee, 1824.

      Others have simply gotten old. I prefer to think I've been tempered by time.

      by Just Bob on Sun May 13, 2012 at 07:37:59 PM PDT

      [ Parent ]

  •  It sounds similiar to punctuated equilibrium (3+ / 0-)
    Recommended by:
    claude, walkshills, Just Bob

    The theory put forth by Niles Eldridge and Steven Jay Gould that evolution tends to occur in spurts, between which there is little actual evolutionary change.  An evolving, living Constitution doesn't grow by a harmonious process inevitably marching towards progress.  A fair living Constitution model should be open to shifts heading in an unfortunately conservative direction as being legitimate.  I agree with the importance of Obama's re-election due to court appointments because I see a right-wing shift in the Supreme Court as overall legitimate if backed by elections.

    It would be easy to see Constitutional regime change as similar to Thomas Kuhn's paradigm shift.  If democratic legitimacy is a value that should be considered in constitutional interpretation, there may be technological advances or other changes which make a particular interpretation less practical.  When reality clashes with constitutional interpretation, one can either pass laws in an attempt to change reality and make people act more like they did in more harmonious times or one can adjust constitutional interpretation to take into account newer social data.  (Or one can do nothing and live with the tension until it possibly makes society explode.)

    This can be disconcerting to those who prefer a more formal and "objective" process.

  •  The most significant unconstitutional (5+ / 0-)
    Recommended by:
    claude, Odysseus, wasatch, walkshills, Just Bob

    decision since 1937 was Buckley v. Valeo altering our democracy and leading to a string of disasters culminating in Arizona Free Enterprise. By the time we hit CU we realized we were in a Dred Scott style meltdown. The problem with OWS is they don't have a clue about what's in the Constitution, but at least they keep asking the question until they find an answer. I would guess they are entirely unaware of what's at stake in the American Tradition Partnership certiorari challenge now pending. That the State of Montana is powerless to stop corruption within its state borders, is a different question than whether Congress is so intoxicated by big money that it will not overrule CU. Some Democrats like Sherrod Brown meekly propose an impotent constitutional amendment.  But the framers had little patience for an unelected court that would hijack the democracy won in the Revolution. So there is the exceptions clause at Art. 3, Sec. 2. No amendment needed. Just use it when you overturn CU. If you are not going to overturn Buckley and progeny, abolish private money domination of elections, end corporate media domination of politics, end the Senate filibuster, etc. then the electorate must be awakened to cause a revolution at the ballot box on this single issue, as happened before with abolition and suffrage. Health care, abortion, whatever issues people think the Court is authorized to dominate our lives with, pale in significance to the Court's capture of Congressional power to regulate elections. This is a clear and present existential threat to the republic, that the framers amply warned us about - and we are too captive to even consult the owner's manual.

  •  The unconstitutionality of FAST TRACK. (1+ / 0-)
    Recommended by:

    Article I, Section 8 of the Constitution gives Congress the power "To lay and collect taxes" and "To regulate commerce with foreign nations." "Fast Track" has upset the Constitutional checks and balances by Congress surrendering its power to amend trade treaties.
    “Fast Track” is the process that gives the executive branch the authority to negotiate and write trade agreements and delegates away Congress’ constitutional power to set the terms of U.S. trade policy.
    On June 30, 2007, the current grant of Fast Track, now called “Trade Promotion Authority” by its supporters, expired. Although expired, it has left in its wake some horrible trade policies (i.e. NAFTA, GATT etc.) and a situation where negotiators cannot be held accountable by the public, and legislators are denied their constitutional authority to set the terms of trade agreements, due to the fact that these trade agreements were negotiated outside the bounds of our constitution (Article I, Section 8) and should be overturned.
    Maybe this is something the OWS folks could read up on and determine if the hundreds of billions (close to a trillion) in trade deficits that are bled from the US economy annually (that trickle up to multinational-corporate oligarchs) could have a little something to do with why the clock of the 99% consistently gets cleaned by the 1%.

  •  Former Chief Justice John Marshall expressed (4+ / 0-)
    Recommended by:
    wasatch, Just Bob, NBBooks, word is bond

    living originalism best in McCulloch v. Maryland when he discussed the necessary and proper clause in the following passage of that opinion

    This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
    McCulloch v. Maryland, 17 U.S. 316, 415 (1819).

    I have quoted that passage many time to "originalists" and "textualists," and rarely do they have a good response.  

    We have nothing to fear but fear itself

    by bhouston79 on Sun May 13, 2012 at 04:32:28 PM PDT

  •  The Roberts Court won't do what the Hughes Court (0+ / 0-)

    woudn't do.  Bank on it.  

    Ackerman postulates a constitutional structure that grants the Supreme Court the role of preserving law created by the People during highly energized moments of collective political activity. During these periods of extraordinary political mobilization, the People clearly express their wishes concerning issues of higher law. As the energy and collectivity of the populace fades and we return to "politics as usual," the Supreme Court must modify its constitutional adjudication to account for the law created during this constitutional moment, and the Court actively must protect this new constitutional law from erosion or violation.

    I paid for MY silver spoon.

    by SpamNunn on Sun May 13, 2012 at 04:43:29 PM PDT

  •  Excellent (although heavy reading) dairy (2+ / 0-)
    Recommended by:
    laserhaas, Just Bob

    I enjoyed that, Armando.  I believe that we do and should always have a "living constitution".  I know there is some disagreement in our country about that "theory", of course.  I am not here to argue my beliefs on it, however.

    "Politics as usual" has decided what the philosophical make-up of the SCOTUS is.  This election could very well change the SCOTUS in a very big way and that, in itself, could have an enormous impact on our country's future.  Whichever political party ultimately comes out with the most political power after the November elections will see myriad legal challenges to the decisions and legislation that will be implemented.  The "important" pieces of law/bills/legislative efforts could hit the SCOTUS.  

    The SCOTUS is supposed to be above partisanship but few people truly believe they are.  That court is right-leaning currently.  Whoever sits in the Oval Office in January 2013 will most likely appoint some new judges which will therefor affect our country's direction on both social and fiscal issues so critical at this point in our country's history.

  •  Insightful book, "The American Revolution of 1800" (6+ / 0-)

    Published in 1974 by Daniel Sisson.

    Jefferson said that the revolution of 1800 was a significant as that of 1776. Until Dan did the study, no one had worked through the implications.

    New understandings of revolution.

    In 1800, the constitution worked. Adams wanted a monarch and he did lots of things like packing the supreme court. There were no parties, just a list of candidates. (In fact, the founding fathers spent a lot of time on the negative aspects of factions. Today we have two factions, not political parties dealing with the real problems of governance. - an aside from Don Midwest.)

    The electoral college was deadlocked with over 30 votes. There was rioting in the streets of Washington DC. There was no federal army. The armies of PA and Maryland were issued their weapons to march on DC with 15,000 troops, the same number as the population of DC. Jefferson looked Adams in the eye and said if there is a revolution, the blood will be on your hands. Jefferson was elected.

    Dan Sission is still pissed at Al Gore for folding and not acting like Jefferson in the election of 2000.

  •  Is there any evidence people involved (1+ / 0-)
    Recommended by:

    in Occupy are discussing whether and/or how the U.S. Constitution should be interpreted/modified?  

  •  Yes, thank you (0+ / 0-)

    It's time we did some serious framing of the issues and possible approaches to dealing with our problems.

    I wonder why the Lochner Era was not taught in the distant past when I was in school. I wonder if it's taught today.

    I'd like to suggest an archive of pertinent links starting with these two diaries and their associated links.

    I'm not going to be of much use tonight. I mowed the lawn today and I'm suffering from severe allergy eyes. Reading is a struggle.

    So...if I have it right, Lincoln created the Gilded Era when he insisted on domestic steel for the trans-continental railroad. The power of the moguls grew until Teddy Roosevelt's trust busting. The Lochner Era was push back to the Progressive Era and lasted until FDR. We are now in a second Lochner Era.

    Is that about right?

    Others have simply gotten old. I prefer to think I've been tempered by time.

    by Just Bob on Sun May 13, 2012 at 07:31:16 PM PDT

  •  Who are the founding fathers? (3+ / 0-)
    Recommended by:
    Just Bob, ozsea1, a2nite

    My academic point in constitution classes was, were all the founding fathers found in 1787 or were other wise people in later US history also founding fathers?

    I tried to make a list as the course went on, but I'm sure I left out lots of good ones, including nowadays founding mothers.

    Here are some, off the top of my head:
    John Marshall
    Daniel Webster
    Abraham Lincoln
    Thaddeus Stevens
    Charles A. Beard
    Elizabeth Cady Stanton
    Theodore Roosevelt
    Louis Brandeis
    Franklin D. Roosevelt
    Earl Warren
    William O. Douglas

    Then there are other Founding Fathers of a fearful or somewhat lawless outlook that nonetheless impacted our living Constitution:
    Andrew Jackson
    Nathan B. Forrest
    Cornelius Vanderbilt
    William McKinley
    James C. MacReynolds
    Joe McCarthy

    Naturally there were many allies of all these people who could also be mentioned if it were a detailed history class.  But my point in class is that the constitution lives.  
    I don't want students to overemphasize wise people in the past and ignore the wise people of the present.

  •  Harking back to Constitutional principles (4+ / 0-)
    Recommended by:
    Just Bob, ozsea1, Musial, a2nite

    is definitely the way to go, and I've been feeling pretty lonely the past year, as I've laid out the theme:
    Constitutional Foundation of the US Economy: Powers are Implied Not Enumerated
    "A republic. If you can keep it." - Education
    Yes, the Walmart Fortune Endangers Democracy

    At the beginning of our experiment in self-government, it was widely understood that there were two major threats that had brought down all the republics of the past. And the Founders were careful to study the history of those republics, in their attempt to find the systems and mechanisms of governance that would protect our new republic from similar fates.

    The first major threat was that of a standing army. And though we have stumbled badly with the creation of a national security state, the idea of civilian control over the military remains a sine qua non of our political life.

    The second major threat was that of a monied aristocracy. In perhaps the most famous of The Federalist Papers, "Number 10" James Madison considered the danger posed to the republic by political factions. And. Madison warned, the most common source of political factions are economic interests.

    Madison defines a faction as "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community". Let me repeat that last part: adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. That clearly implies a consideration of the general welfare and the common good - ideas, which, let it be noted, conservatives have been boldly attacking in the open, marching behind the banners of political philosophers who are not even American: von Hayek, von Mises, and Rand.

    Moreover, writes Madison, "the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society".

    It is clear to me that "We the People" - and that's what our national government is, in the final analysis - We the People" are supposed to take measures to guard against and limit the rise of factions based on economic interests. Surely, this means a flat rejection of the ideas and tenets underlying the majority view in Citizens United. More, it should move us to quickly and decisively act against the very idea of corporate personhood in such a way as to strictly limit the influence and actions of corporations in our political life. Corporations being, after all, the most extremely concentrated form of a faction since it is formally organized on the very basis of economic interest.

    AsI have commented before, we desperately need a national discussion on exactly what a republic and republicanism is. If we do, I am certain that the Republican Party would be forced to change its name, to something more accurate like Greedy Old Pricks.

    In her 2008 book, Give Me Liberty: A Handbook for American Revolutionaries, Naomi Wolf was stunned to find the enormity of the challenge - and the depth of assurance - that you can derive from closely reading the Founders, and trying to answer basic questions like, What kind of country are we supposed to be.

    So, what I've been recommending and quoting quite a bit are two incredible books from the late 1960s. Both are summaries and synthesis of the hundreds of pamphlets (like Paine's Common Sense), sermons, and newspaper and magazine commentaries of the 1760s to 1770s. They give you a very clear idea of what republican government is supposed to be, and what it was intended to replace. And, believe, today we look more like what was supposed to be replaced than what we are supposed to be.

    The Ideological Origins of the American Revolution, by Bernard Bailyn, Belknap Press of Harvard University Press, Cambridge, Mass., 1967

    The Creation of the American Republic 1776-1787, by Gordon S. Wood, University of North Carolina Press, Chapel Hill, NC, 1969.

    GW 53-54 “The sacrifice of individual interests to the greater good of the whole formed the essence of republicanism and comprehended for Americans the idealistic goal of their Revolution. From this goal flowed all of the Americans’ exhortatory literature and all that made their ideology truly revolutionary…  it alone was enough to make the Revolution one of the great utopian movements of American history. By 1776 the Revolution came to represent a final attempt, perhaps—given the nature of American society—even a desperate attempt, by many Americans to realize the traditional Commonwealth ideal of a corporate society, in which the common good would be the only objective of government.”

    GW 55 “From the logic of belief that “all government… is or ought to be, calculated for the general good and safety of the community,” …followed the Americans’ unhesitating adoption of republicanism in 1776. The peculiar excellence of republican government was that it was “wholly characteristical of the purport, matter or object for which government ought to be instituted.” By definition it had no other end than the welfare of the people: res publica, the public affairs, or the public good. “The word republic, said Thomas Paine, “means the public good, or the good of the whole, in contradistinction to the despotic form, which makes the good of the sovereign, or of one man, the only object of government.” “

    GW 60-61 “In a republic “each individual gives up all private interest that is not consistent with the general good, the interest of the whole body.” For the republican patriots of 1776 the commonweal was all encompassing—a transcendent object with a unique moral worth that made partial considerations fade into insignificance. “Let regard be had only to the good of the whole” was the constant exhortation by publicists and clergy. Ideally, republicanism obliterated the individual. “A Citizen,” said Sam Adams, “owes everything to the Commonwealth.” “Every man in a republic,” declared Benjamin Rush, “is public property. His time, his talents—his youth—his manhood—his old age—nay more, life, all belong to his country.” “No man is a true republican,” wrote a Pennsylvanian in 1776, “that will not give up his single voice to that of the public.” “

    Essex Result, Theophilus Parsons; Memoir, 365, Adams to Caleb Davis, Apr. 3, 1781, Cushing, ed., Writings of Samuel Adams, IV, 255; Benjamin Rush, “On the Defects of the Confederation” (1787), Dagobert D. Runes, ed., The Selected Writings of Benjamin Rush (N.Y., 1947), 31; Four Letters on Interesting Subjects  (Philadelphia, 1776), 20.

    A decade and a half later, as the country feebly stumbled along under the Articles of Confederation, there was great anxiety and despair that this utopian vision seemed so far from being realized, and that the sacrifices made during the war had been in vain. Perhaps the masterful  stroke of genius of the framers of the Constitution, the great insight that gave such enduring resiliency to so simple a document, was that Americans were forced to erect a new structure of government that incorporated their exhaustive inquiry into why their utopian vision of the republic had failed to materialize. Jefferson statement in 1782, “If men were angels we would not need government,” was not just a sad lament, but the expression of a realization and determination to design a system of government that fully accounted for human weakness and foibles, and incorporated measures—checks and balances—that would restrict and channel the selfish energies of humans in such a way as to promote the general welfare. The laissez faire of free market economics was never an end in the sight of any of the founders. In fact, as Bailyn notes, one of the great founders of free market thinking that conservatives today proudly point to, Bernard Mandelville, was reviled and explicitly denounced by the American pamphleteers he read as an opponent of Enlightenment rationalism, one of the five major foundational sources of American revolutionary thinking.  (BB page 28) The idea that private vices could lead to public good was, to the thinking of the time, absurd and ridiculous. And that simply demolishes any claim the Republicans and wrong-wing has to claiming legitimate American roots for their oligarchical economic philosophy.

    A conservative is a scab for the oligarchy.

    by NBBooks on Sun May 13, 2012 at 08:16:52 PM PDT

  •  100% Agree Armando (0+ / 0-)

    Even if you disagree with this president on any level, you should vote him into office for this reason alone.

    We are at one of the more defining moments in our nations history, literally at cross roads.

    --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

    by idbecrazyif on Mon May 14, 2012 at 08:20:39 AM PDT

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