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03/07/2010

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Nicholas

Nota bene the conclusion, and judge the remainder.
When Becker is functioning in the mode of economist he does not use such terms as "hasty". Or at least no careful economist would. For these terms are merely labels applied by whim, in the same way that a non-economist would object that the price is "too high" (no, says the economist, the good is too scarce and/or the demand too great) and object that it is "unfair". I won't elaborate because anyone with sense can provide for himself all the intervening logic. (And for those without the intelligence, elaboration would be wasteful.) Or I can simply put the point: what good is it too declare that the passage is "overly hasty" when I can, with just as much whim (that is, without means of demonstration) assert that it is "overly tardy"? When there was congressional debate about going into Iraq in 2003 which side was able to establish "overly hasty" or "overly tardy"? If it is within the discipline of "economics" to talk in terms of "hasty" then that discipline is even farther from hard science than I suspected. It is the dismal faux science. As for commissioning political science to decide the question of filibuster, it is even less equipped. Thus the discipline is called, by its more modest charlatans, government. "I want to be a political science major." Sorry, son, we only have government here at Modest University.

David Welker

You call the Federalist Papers superb. If you REALLY think that, then how do you justify not even discussing the following provision from Federalist 75:

"It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority."

If you have so much respect for the Federalist Papers, shouldn't you at least, I don't know, at least discuss the relevant provisions? Is that too much to ask? Can you explain why you think Alexander Hamilton was wrong about this and why your wisdom is superior to his? And can you also explain how you arrive at an interpretation of the Constitution that directly contradicts Federalist 75?

Thanks!

jfb2252

I unfortunately can't find the reference but there was an analysis recently of filibuster success as a function of vote and population represented. Filibusters representing the majority of the population would have succeeded ~80% of the time even if the majority needed for cloture was dropped to 55. Filibusters representing a minority of the population would have succeeded only ~35% of the time with the cloture requirement of 55. I concluded after reading it that a change to 55 for cloture would render the Senate more democratic (small d) and representative.

There is a set of forty Senators representing less than a fourth of the US population. I don't think allowing this small a minority to stall things is appropriate.

Jack

jtb -- I spent a few minutes trying to think of a minority protecting, or state's right issue, that justifies the 60 vote cloture rule. I not only struck out, but reflected on slavery, ultimately the Civil War, segregation, and smaller issues of resistance to consumer and environmental protection that has made things worse for "minority" invoking cloture rules, though I suppose it plays an "equity" role in ladling out omnibus highway and military funds.

Ha! I've read management books that say top execs in industry would be envious of a 300 batting average, that is they are wrong 2/3rds of the time. We seem more at risk from not being able to respond to a rapidly changing world than from "hastily" getting it wrong.

As Exhibit One, I submit dealing with a cumbersome H/C monster that gobbles 17% of GDP with bankruptcy as a side effect of getting sick, while Germany and others manage on 12% or less, at this late date.

Quentin

The article that the previous poster is thinking of is probably this one: http://www.slate.com/id/2244060. I tend to agree with the point made by that poster, but I would correct one thing: there is a set of 40 senators that represent only about 10% of the population.

While I agree in principle that there is a legitimate case for supermajorities in some circumstances, the U.S. Senate is not the place for that precisely because of the disparity in populations that the senators represent. It would make far more sense to require a supermajority in the House than in the Senate.

Robert Goldberg

The reference to Federalist Paper 75 is irrelevant to Dr. Becker's discussion. Fed # 75 discussions the need for a 2/3 majority of the Senate to ratify any treaty. And the sentence previous to the one referred to by the comment is: " The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present." The essay then continues: "It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. "

The Federalist is clearly what two thirds to count, not whether a simple majority is better than a two-thirds majority with respect to treaties. With respect to the larger issue, the authors believed that a simple majority with ample protections for the minority for deliberation, cloture, etc, struck the right balance.

David Welker

Mr. Goldberg,

With all due respect, your interpretation of Federalist 75 (to the extent that I even understand what you are asserting) simple doesn't make any sense.

The criticism that Hamilton is dealing with is the Anti-Federalist argument that requiring ONLY two-thirds of those PRESENT instead of two-thirds of ALL Senators to vote for the ratification of a treaty is problematic, since it makes it too easy for the nation to entangle itself in treaties, which then become the supreme law of the land, trumping state laws. Remember the context here. Travel to the capitol was definitely quite inconvenient, especially for distant states. A quorum in the Senate requires only a simple majority. So, the Anti-Federalist critique is that a treaty could be ratified with a vote of slightly more than only one-third of the total Senate, in case where only half the Senators are present.

Here is the math:

For simplicity, imagine 100 Senators (even though there were would be far fewer immediately after the ratification of the Constitution).

You only need a simple majority to form a quorum. Article I, Section 5 provides that:

"One-half plus one of each house is necessary to make a quorum to conduct business."

So, in the case of 100 Senators, you need to only have 51 Senators to form a quorum. But, to ratify treaties, you only need an affirmative vote of two-thirds of those present. So, you could ratify a treaty with only 34 votes, in the case where you only have 51 Senators present and 49 are absent. (34 is two-thirds of 51).

Hamilton was DEFENDING this result. And how did he defend it? He defended it by referencing a GENERAL principle (to which ratifying treaties is an exception). Namely, that it is necessary for bodies to proceed in their ordinary business by a simple majority to avoid embarrassing the operations of government and that we should not move too far away from that general principle when it comes to the exceptional case of ratifying treaties. In particular, given the difficulty of forming quorums at the time, Hamilton was concerned that a requirement that treaties be ratified by two-thirds of ALL Senators rather than two-thirds of Senators PRESENT could easily turn into a requirement for practical unanimity rather than merely marginally more difficult. Imagine that only 67 Senators could be present. Then to ratify a treaty, if the requirement were that you needed a two-thirds majority of ALL Senators, you would need unanimity among those Senators. An ordinary quorum would be unable to ratify treaties at all.

To give you an idea of the context, keep in mind that the Constitutional Convention itself was delayed for quite a while, given the failure of representatives from distant states to arrive at the appointed time. This was quite frustrating to George Washington and many other delegates to the Constitutional Convention who did arrive on time.

Anyway, as this context makes clear, we can see that Hamilton means exactly what he is saying. All provisions requiring "more than a majority" tend to embarrass the operations of government and subject the will of the majority to the will of the minority. That is, the general case is that business in the Senate is to proceed by majority vote. Hamilton is saying we should not move too far away from that general case in the exception instance of ratifying treaties, so that two-thirds of all Senators PRESENT rather than two-thirds of ALL Senators ought to be adequate for ratifying treaties.

Think about the alternative for a second. If you are saying that Hamilton would endorse requiring more than a majority for ordinary legislation, you are saying that he would endorse a scheme that he explicitly asserted would embarrass the operations of government into an embarrassment. That is simply absurd.

The bottom-line is this. Advocates of the filibuster are guilty of blatantly disregarding the Constitution and substituting their own preferences for its actual provisions. When such people say they think the Federalist Papers are "superb" without even addressing their contents, that should raise deep suspicions.

Chris Graves

Professor Becker provides a good explanation of why the filibuster evolved as an integral part of our legislative process at the Federal level. The filibuster gives leverage to minorities to protect their standing in the face of fleeting majorities. The filibuster can also serve a conservative function as it can offer a brake on extreme fluctuations in policy as different parties gain power and attempt to alter the social, legal, or economic landscape. Such dramatic swings can easily destabilize the entire cultural edifice that provides the background conditions for daily life to function within.

This sort of government-induced destabilization is why the Civil Rights revolution has proven to be such a failure. Social left-liberals who came to power in the mid-Twentieth Century overlooked an innate ethnocentrism that has perpetuated de facto segregation in the face of government efforts to achieve racial social equality as these policies undermined a sense of civil friendship. On the destabilizing effects of government mandated integration, see sociologist Robert Putnam's study on social fragmentation that can be traced to increasing levels of racial and ethnic diversity. Perhaps, the South's racial semi-feudal system had its merits. There are painful trade-offs under any system, but it is generally best to allow social evolution to manage these stresses on a community than a centralized, social engineering approach that people such as Senator Richard Russell foresaw in leading the filibuster against the 1964 Civil Rights Act.

Jack

David: Thanks! A thoughtful and informative post.

Chris: I've been trying to think of an issue that turned out better for the filibuster or threat of filibuster. The disinformation laced rush to sack Baghdad w/o considering the outcomes comes to mind, and whether for it or against it, wouldn't it have been great had a wise and inquisitive minority stayed the hand of impetuous "neocons" who came to power with that invasion in mind, for six months or a year while cooler heads weighed the costs and benefits?

But, I'm not coming up with anything. As for your comments on "government-induced destabilization" during the Civil Rights era it ranks near the top in a rewriting of history. Many, will recall that "blacks" after serving honorably in the armed forces in Europe and the Pacific where they were treated more equitably were restive and reluctant to resume their status as third class citizens and had "non-black" allies at the grassroots level.

"The government" (ie many governments) were faced with the choice of violating the post Civil War, Constitution and trying to force them back into their pre-WWII oppression or living up to the promise of a century earlier. Since that era and Brown V. Board, and the Voting Rights Act it's not only that things have improved greatly for "blacks" but for all of our diverse population, and MLK is to be honored in league with Lincoln, not for solving problems with violence, but for learning the power of peaceful methods from Ghandi in a time that could have been extremely violent.

The filibuster against the CRA -- 1964 was not heroic but a shameful act in blatant disregard to the tenets of our Constitution and it's hard, impossible to make any rational case that things have been made worse after its passage. As for "social evolution" a brief review of history would reveal that it rarely cuts for the oppressed and down-trodden minority. Germany? England/Ireland? England/India? The US/"blacks" for over a century after the violent overthrow of slavery?

America itself was fortunate not to have to "evolve" but to have come from bold strokes on a blank page that held certain to be self-evident" that existed no where else at the time. (Save perhaps some "Indian" tribes)

I'm not sure I'd get rid of the 60 vote rule and agree with some of the points in its favor a pointed out by Becker and Posner, but see countless examples of it having stalled progress, and none that seemed positive; but I'm not a historian. Do you have a good example?

Chris Graves

Jack, thank for your comments in reply to my post just above. I think we have had similar disagreements in the past. First, as Thomas Sowell has observed, many of the advances made by blacks were already in the works before the 1964 Civil Rights Act. What the "bold strokes" of Federal action did was create a back-lash politically against the Democrats that continues until today in the South. It also undermined whites' willingness to live and work in close proximity with blacks that was very prevalent in the South before the Civil Rights Act. What we actually got in the South was a move to de facto segregation due to "white flight" that was and remains the rule in the North and Midwest. In fact, the South today is still more integrated racially than any other region the U.S.

A central issue influencing these matters was and is who is dominant, explicitly or, at least, implicitly. I do not believe that equality of result is ever a real option. Jefferson's insights about race I believe to be correct. Derrick Bell makes a similar point when he observes that whites will always look to maintain their own power as he does in his *The Price of Racial Remedies.* Derrick Bell also argues, I believe correctly, that Brown v. Board has been a major disappointment for blacks and efforts to make a truly separate but equal system with greater funding for black schools would have been a more worthy effort.

As for the Civil Rights Act being the fulfillment of the original understanding of the U.S. Constitution, I would suggest that the arguments Southerners employed at the time in opposition to civil rights laws on grounds that such laws violated the principle of freedom of association and contract were closer to the Founders' views. For the case that anti-discrimination laws are inconsistent with the principles animating the writing of the U.S. Constitution, please consider the analysis of Richard Epstein in his *Forbidden Grounds: The Case Against Employment Discrimination Laws* and Richard Bernstein's *You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws.*

As I said above, the structure of our system that includes the informal development of the filibuster fosters consensus and discourages wild swings in public policy based on temporary majorities reacting to immediate circumstances. We do not have a perfect system, but I see the filibuster as a tool to encourage consensus and prudence in fundamentally changing basic institutions in America. Unfortunately, the threat of filibuster can and has been used by those on the left to prevent shifts back to the right. So, the filibuster itself is neutral in particular cases, but overall its effect has been conservative, which I see as good.

Jack

Chris: Yes we have a disagreement on this one! So a few questions about your positions.

In your first paragraph, Ha! in addition to invoking the rantings of Sowell, have claimed the CRA "..... also undermined whites' willingness to live and work in close proximity with blacks that was very prevalent in the South before the Civil Rights Act." Oh? How so? and Why?

Sadly, I'm well aware of our sordid history of white flight with Congress and other bodies staffed by "whites" having provided the funding for the escape "freeways" but not the funding for the schools of those "left behind".

You're surely right about the majority being politically dominant with the result that the schools of TX, MO, and others being operated under court orders to provide equity and adequacy of funding, after decades of fighting court battles to retain their "right" to prejudicially underfund "those" schools. In such virtually all "white" bodies how can you hope that a "separate but "equal"" system would have ever become equal? After let's say 150 years of data to the contrary?

Further, one of the major benefits of our free and universal school system is that of a homogeneity of our American community rather than the Balkanization were our kids segregated by race, class and religion. In fact today's push for underfunded vouchers is another attempt at division along those lines and a thinly disguised attempt at another chapter of white flight.

As for the founders views on "freedom of association" in regard to "Negro slaves" they too were men, white men, and as men everywhere were less than perfect, or even respectful of ALL humanity, nor prescient of changes to come. In any case freedom of association continues today, though, as should and must be the case, not on public property nor in most of the work place.

With a bent towards protecting the RIGHTS of a minority from the, perhaps, tyranny of a misguided majority I'd like to favor the use of the filibuster for protecting those rights, and at times to ensure smaller states and less populous regions are treated fairly at the pork barrel, but, I'm finding it difficult to find many examples of the filibuster being used in a positive manner as depicted in Jimmy Stewart's fine performance in "Mr. Smith goes to Washington."

Lastly, as I'm drawn to conservatism in what I think of as the classical sense, of keeping our pork ladling generally in line with revenue, being conservative in regard to getting mired down in civil wars half way around the globe, being tolerant and respectful of the religious choices of others, and accepting, even celebrating the social diversity which is the strength of America, each of which seems to have been abandoned by the GOP since the VRA was passed? Ike? or perhaps Lincoln.

David Welker

Chris Graves:

"As I said above, the structure of our system that includes the informal development of the filibuster fosters consensus and discourages wild swings in public policy based on temporary majorities reacting to immediate circumstances. We do not have a perfect system, but I see the filibuster as a tool to encourage consensus and prudence in fundamentally changing basic institutions in America. Unfortunately, the threat of filibuster can and has been used by those on the left to prevent shifts back to the right. So, the filibuster itself is neutral in particular cases, but overall its effect has been conservative, which I see as good."

Thanks for admitting that your support for the filibuster is primarily based on crass political calculation. You should be ashamed of yourself.

Conservatives like you have no right to ever cite the original meaning of the Constitution when you then turn around and blatantly ignore it when you find it inconvenient in advancing your political ideology.

That really just makes me sad.

I used to think of myself as a conservative. I used to be a member of the Federalist Society. I used to really believe that conservatives wanted to follow the original meaning. But it is just a bunch of political propaganda. A lot of conservatives (not all conservatives) are nothing more than a rotten bunch of unprincipled liars. They only want to use "originalism" as some sort of political weapon against liberals.

If you are going to be an advocate for "originalism" in Constitutional interpretation and maintain your own personal integrity, you had better not conveniently ignore originalist results when you don't like them. The original meaning of the Constitution is actually quite clear. The Senate is meant to pass rules and ordinary laws by a simple majority, as the founders believed supermajority requirements for ordinary business would "embarrass the operations of government" and tend to "subject the sense of the majority to that of the minority."

Whenever I mention this to conservatives, the reaction is always indifference. Why? Because, by and large, their advocacy of originalism isn't based on any sense of principle, but their own devious calculations that originalism is politically advantageous. The second that originalism is no longer politically advantageous, conservatives abandon it in droves.

So much for principle.

David Welker

Chris Graves,

After reflecting upon my own words, I think I was too harsh with you. I feel passionately about this issue, but I do not think it is productive of me to impugn your motives.

Chris Graves

Yes, Jack, I see that we do still disagree. In reply to your latest post, my point drawn from the research of Thomas Sowell was that blacks were already improving their economic position by the 1950's. Some businesses in the South were softening their racial attitudes to gain more of this market as well as hiring more blacks furthering their improved standing while still not achieving equality. I was saying from my own personal observation that de jure segregation permitted whites to feel more comfortable working and living in close proximity to blacks because they felt more secure in the officially sanctioned power differential. Blacks had to accommodate whites, which the whites liked. There has always been a lot of de facto integration in the South without equal standing. That unequal but more spatially integrated setting was disrupted to a large degree by Civil Rights laws. Something similar happened in Europe when the lower classes gained more power and asserted themselves in the face of aristocratic privilege. The aristocracy fled behind the walls of the palace in response. When de jure segregation ended in the U.S., which segregated life in the South only in very narrow ways but did reinforce the power differential between the races, whites fled as they have always done in the North. Today the most segregated cities are in the North and Midwest while the most integrated are still in the South. To emphasize this point, the South has always been integrated spatially, but not socially on equal terms. I see racial equality as a natural impossibility due to the limitations of human nature.

On to your point about segregated schools. Public schools have fallen into terrible decline since the 1960's. Funds spent to force integration (e.g.,court expenses, busing) could have been used to increase teacher pay to retain talented teachers who left for a variety of reasons including more opportunities for women outside of education. Neighborhood public schools are still highly segregated. If people have a choice, they tend to opt for segregated schools as people with small children tend to opt for more racially segregated residential areas. The 2007 Supreme Court decision on public school desegregation involving the Seattle and Louisville school districts, in effect, largely overturned Brown v. Board. The "race neutral" approach allows de facto segregation to take place. So, it seems that we are moving toward the Northern model of race relations throughout the country. The upside of that approach is that there is less overt racial discrimination using more subtle means to achieve much of the same result as minorities are treated more respectfully. The downside is that de facto segregation undercuts the stability of the minority community as that policy allows its more talented and accomplished members to leave minority neighborhoods taking with them their stablizing influence as it also undercuts a sense of noblese oblige on the part of whites who lived and worked in close proximity with blacks as the whites maintained their social status under de jure "segregation."

I disagree with you that homogenization is such a good thing. There are trade-offs here, but I see people maintaining their distinctive culture as preferable to undermining the existing culture in favor of cultivating a monoculture. In a sense, I am a multi-culturalist. I do reject egalitarianism though. Strengthening the broader culture as you suggest loosens bonds people feel more intensely to a particular nexus of relationships with people they are naturally situated with. You mention in your previous post the British in India. I certainly oppose imperialism since the insertion of British ways, which I admire, into India disrupted their cultural evolution as well as unjustly denigrated them. I oppose slavery in the South for a similar reason. It was a gross denial of natural rights for blacks who were coerced into serving whites. It also harmed their culture even though there have been some very positive cross-fertilization culturally as well. The question is how to handle these differences once the injustice has taken place. I do not see dismantling existing cultures or sub-cultures as beneficial to the respective communities or to the individuals embedded in those cultures.

Concerning fragmentation, we are fragmented now largely due to increases in diversity. As I have pointed out in citing the Putnam study, as people encounter large numbers of other people who are racially, ethnically, linguistically (a different language or even dialect), and culturally, they tend to withdraw from one another, even people who more closely resemble themselves. We are destroying our "social capital" that informally and spontaneously facilitates cooperation and a sense of "civic friendship," as Aristotle put it.

As for freedom of association, I agree with Epstein and Bernstein as well as the Founders that people should have the liberty to associate with whomever they choose on an individual level and the freedom to form social unions with like-minded people or people who share a similar background. Minorities should have the same rights as those in the majority. But the state should not be empowered to actually equalize persons' standing or wealth or income. Those kinds of state actions that seek to equalize people in fact, necessarily involve violating people's rights understood as private spheres that each individual is allowed to maintain as he/she sees fit as long as they do not transgress others' boundaries. While I am open to reparations for past wrongs, I do not believe in the state constantly tinkering with the basic institutions of society to achieve and maintain the social pattern of equality of result. The brute fact is that social stratification is inevitable along some lines. Attempts to regulate this inevitable fact of human life will always themselves be oppressive and futile.

Incidentally, the United States did not arise out of a vacuum as you said in your previous post. We are rooted in a way of life that developed from the British Isles with their most cantankerous folks leaving for the North American frontier. English common law, political institutions, economic practices, manners and customs that emphasized the rights and privileges of the individual which developed from various influences that included biology, climate, and geography provided a basis for the United States to branch off of. England was also affected by the Protestant Reformation and the fight for religious liberty that led to a broader application of political principles identified in those struggles that included the English Civil War and the Glorious Revolution. John Locke's philosophy shaped by the English people and their experiences as well as other theorists formed an explicit understanding of the principles that the United States is modeled upon. The Founders drew on their training in the classics dating back to ancient Greece and Rome as well as the Bible. But the customs and habits of mind and action that evolved from the uniquely American cultural, linguistic, historical, religious, philosophical, political, temperamental, environmental experience all contributed to establishing a foundation for our Founders to work from in creating our Constitutional system. They were more like demiurges refashioning pre-existing material than the ex nihilo creation that you describe.

I appreciate most of your comments in the conclusion to your last post on conservatism. I am drawn to a Burkean conservatism with a hint of spice from the classical liberalism. Southern political and social theorists dating back to Thomas Jefferson and John Randolph of Roanoke and more lately Richard Weaver are commentators whom I find particularly insightful. There is a balancing act that must be maintained between stability and dynamism to avoid either stagnation or dissipation.

I suspect that much of our disagreement centers on how flexible human nature is and how much sudden change societal institutions can tolerate. I see human nature as constant and hopelessly selfish while being paradoxically sociable. I see human institutions as very fragile and the need to preserve and nurture them. I think we could go the way of the Soviet Union as quickly as they disintegrated, and we might have already sown those seeds of destruction in attempts to achieve egalitarian understandings of social justice.

Chris Graves

David, I appreciate your backing off the tone of your first reply above. I was not aware of the passage you cite from Hamilton's Federalist 75. But the filibuster has a long history dating back to ancient Rome where Cato the Younger used a "Four Corners" approach to Senate debate to stall efforts by Julius Caesar to enhance his own power presenting a threat to the Republic. The Founders were aware of the use of the filibuster and did not forbid it. As you know, each Congress can set its own procedural rules and could ban or restrict the filibuster, which they have by lowering the number of votes to invoke cloture. While we know that Hamilton was not keen on such parliamentary maneuvers, it is not clear that there was a consensus among the Founders opposing the use of the filibuster. Hamilton had one take on the power and efficacy of the central government that other Founders disagreed with. As you can see from my comments addressed to Jack, I am a Jeffersonian, so I too differ with Hamilton's vision for the country.

In regard to leftists of various stripes hijacking language in the Constitution, it is clear that all of the Founders rejected an extensive role for the state to equalize conditions for people. I referred to Derrick Bell in an earlier post. Professor Bell correctly observes that the Founders were more interested in protecting private property than with issues concerning social justice (understood as equality of result). The attempt to pour contemporary leftist meanings into key words in the Constitution such as 'liberty' and 'equality' is simply dishonest. I see this left/liberal move to appropriate language in the Constitution in the attempt to reorder society from the top down as being categorically different than adapting to the contingencies of the time within the bounds of traditional understandings of the basic principles the Constitution is based on. Filibusters are within the rules of the game that have been practiced from the first decade of the Nineteenth Century and are not fundamentally at odds with Lockean political philosophy.

So, I see it as principled to oppose left/liberal interpretations of the Constitution while employing specific strategies that have a history of being used to protect liberty that some of the Founders might have looked askance on because of their particular twist on Lockean liberal principles. I also do not see using a legislative procedure that has been available since ancient times that has been used to thwart attempts to undermine liberty to be anything resembling "crass." At same time, I would advise against feeling too disillusioned when you discover that people will alter their "principles" to gain political power. The fundamental starting point for the Founders was the Christian insight that people suffer from total depravity due to the fall of humanity in the Garden of Eden. There is no escape from human selfishness in this world. We can only hope to contain it.

Finally, you say that you feel passionately about this issue. I am interested in why filibusters get you so stirred up.

David Welker

Chris Graves,

Here is the most important thing about the Constitution. LISTEN UP. It mostly DOES NOT dictate everything. Its most important provisions provide a STRUCTURE for government. It was meant to last. Which means that it was meant to give future generations the ability to make their own decisions. You keep on talking about how the founders never intended to allow future generations to adopt policies on the basis of their tendency to equalize people's outcomes and opportunities (two things that are interrelated and cannot be wholly separated). But that is not true. Take Jefferson, your hero, for example. May I point out that he did advocate for many policies to partially equalize conditions, including providing schooling to those who were not born into such fortunate situations that their families could afford private schooling (which was the only kind available at the time). Also, keep in mind that the founders defined themselves as against automatic privilege in important respects, in contrast to England. That is why under the Constitution the government is forbidden from granting titles of nobility.

Basically, the idea that the Constitution forbids liberal policies is nothing short of absurd.

Your point about Rome is a waste of time UNLESS you can go to either the Constitutional convention or the ratifying debates and establish its relevance. The Federalist Papers are relevant for two reasons (1) BECAUSE Hamilton and Madison, the main authors of the Federalist Papers were both present at the Constitutional Convention and thus are highly familiar with what was voted on and agreed to. (John Jay, the other author, was not at the Convention, but he only wrote 5 of the Federalist Papers) (2) The Federalist Papers were presented to the public and influenced the understanding of those who ratified the Constitution concerning its meaning.

Also, you say you have Jeffersonian tendencies. Well, Madison later converted to a more Jeffersonian view, backing away from his earlier nationalism to some degree. Madison initially suggested that Congress be able to veto state laws. You can't get much more nationalist than that! To the extent that Madison's views are relevant, what he said in the Federalist Papers and at the debate during the Constitution is much more important than his later change in views. So, the Federalist Papers are the joint product of the most important intellectual framers in both the early parties. (Jefferson was not a framer, while George Washington was a framer, but did not have the intellectual force of either Hamilton or Madison). But, now you are going to bash the Federalist Papers?? Really??

The United States is not Rome. It is also not England. In fact, the United States fought a revolution specifically so that it could be separate and thus different from England. You cannot merely cite practice in either Rome or England and say that an identical practice was intended in the United States without specific evidence that ties their practice to our Constitution. The same obviously goes to academic writing such as Locke's Second Treatise on Civil Government (whose influence is overrated) or Montesquieu's The Spirit of the Laws (whose influence is underrated). But, none of these works can be validly cited as evidence of the original meaning WITHOUT linking them to the debates at Philadelphia or the subsequent ratifying debates. BECAUSE, the United States is NOT Rome or England. The Constitution is NOT Locke's Second Treatise on Government or Montesquieu's The Spirit of the Laws.

I have provided specific evidence of the original meaning of the Constitution to run the Senate by majority vote. What have proponents of the filibuster offered by way of evidence? NOTHING. NADA. ZIP. ZILCH.


Your justification for ignoring the evidence seems to be that you like Jefferson (who was not a framer and wasn't even in the country during the Constitutional Convention) more than Hamilton (who was a framer that actually participated in the debates at Philadelphia). Go figure. But Jefferson's writings show he believed in majority rule and also that each generation should be free to make its own laws. So, even if he was authoritative, he is no help to you.

What you have provided is hand-waving, not evidence. The Constitution is a sophisticated document. It took the 55 delegates at Philadelphia months to agree on its terms and draft it. It took even longer for the requisite number of states to ratify it. THERE WAS NO SINGLE UNIFIED ALL ENCOMPASSING PHILOSOPHY. So STOP IT. Stop assuming that whatever YOU believe is exactly what THEY believed. THEY did not even agree amongst themselves, much less all agree with YOU. Hence their need to compromise in all sorts of less than principled ways. Madison did not want the Senate to be apportioned equally amongst the states, but instead on the basis of population. He lost that argument. Northerners did not want slaves who could not vote to count and increase the South's representation in the House. There was an ugly compromise where slaves counted three-fifths for representation and three-fifths for taxation.

The single most important thing the Constitution did was establish a BASIC FRAMEWORK FOR POLITICAL COMPETITION. That way, we can achieve our political goals peacefully without bloodshed. And really, THAT is the alternative to following the Constitution. Otherwise, to achieve our political goals, we will just have to kill each other, like we did during the Civil War. You may not appreciate it, but it was actually quite amazing when political power transitioned without bloodshed from the Federalists to Thomas Jefferson's Democratic-Republican party.

Why does the Constitution have authority today? It is not because the framers were perfect human beings or the Constitution was a perfect document. It is because the alternative to following the Constitution is anarchy, civil war, and death.

A final point. We are to believe that filibusters were anticipated or intended by the framers or the ratifying conventions, but were somehow never debated? The Anti-Federalist viciously attacked every period and comma in the Constitution, but somehow they never mentioned the possibility of a supermajority in the Senate. While minor provisions of the Constitution are worthy of debate, scathing words, and even the subject of bizarre conspiracy theories, apparently the filibuster was not even worth mentioning, even though it was generally understood to be a possibility? Really!

Filibusters get me stirred up for a couple of reasons. (1) They are clearly contrary to the Constitution. (2) Because Hamilton was right. They embarrass the operations of government and they subject the will of the majority to the will of the minority. (3) As a former member of the Federalist Society, I used to think that conservatives actually were principled and meant it when they said they wanted to follow the Constitution and I am naturally disappointed that this is a lie. (5) The filibuster has a high probability of leading to the decline of the United States. We are facing a fiscal crisis. Yet, we are more divided in partisan terms as a country than we have been for a long while. We also face an education crisis, as other countries outcompete us now, but the resources we invest into the future decrease.

You know what Jefferson, your hero, thought? He thought that each society should draft its own Constitution. He obviously thought that each generation had the right to make mistakes and learn from them. As he wrote to a letter to James Madison: "On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation."

Here is what advocates of the filibuster are asserting. That the majority does not have the right to make mistakes. That policy has to be so obviously perfect that practically everyone agrees, or no action is taken, except those authorized by previous generations. AS IF INACTION CAN NOT BE DANGEROUS. Inaction when it means we are not educating the next generation as we should is dangerous. Inaction as unemployment surges and the discontent of the population rises is dangerous. Inaction when deficits and the debt rise to eventually unsustainable levels is dangerous. Inaction to correct previous legislative mistakes is dangerous.

You know what the remedy is for bad legislation by Democrats or by Republicans? Good legislation by the other party after they win the next election. Republicans should go ahead and try to repeal whatever Democratic initiatives they don't like after the next election. With the filibuster in place, they can talk about it, but, for any important decisions, they can't do it.

And THAT is the most important thing the Constitution does. It provides a base structure for government and channels our diverse political aspirations into peaceful rather than violent competition. The most important parts of the Constitution are found in Articles I, II and III. Not the bill of rights or any of the rest. So, when you turn against that, you really are inviting danger.

I should point out another thing. You know the rampant cynicism that exists among the population concerning our government? That is fed by the dysfunction that is a direct product of the filibuster. As Benjamin Franklin put it after the Constitution Convention:

"Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors"

This cynicism that is bred by the filibuster, which directly results in dysfunctional government and tends to make elections useless, destroys the belief of ordinary people in the goodness of the government which is necessary for it to procure and secure our happiness and poisons our politics.

I could go on with further objections to the filibuster, but I think I have given you a sense of them.

Jack

Well, a good discussion with almost too much on the table to handle in this forum.

Chris, Since I disagree with about 80% of your views on integration and the need for government, especially the courts, to take a leadership role, let me begin with an area of agreement:

"I see human institutions as very fragile and the need to preserve and nurture them. I think we could go the way of the Soviet Union as quickly as they disintegrated, and we might have already sown those seeds of destruction in attempts to achieve egalitarian understandings of social justice."

I think about this fragility often and especially so when implementing a "democracy" and a body of contract law where it hasn't existed before. The strength of the US is that, as David points out, is that our written Constitution is our keel with a body of law emanating from it. Most importantly a high percentage or our population knows the basics of the law down to what recourse there is if we buy a pair of defective shoes. ie. When we own something much of the strength of that ownership is what resides in the minds of our neighbors. In the USSR and its aftermath, instead, from the pair of shoes, to a co-op home or oil rights it was the wild west with the result being that the asset grab after the fall has created the seeds of their next revolution.

In short, if democracy is not in the mind of the majority of the citizenry it's very tough to get it there or to implement a functioning democracy.

As for losing our own, I've those concerns as well, but as in the 1920's, the last time wealth and income was as skewed toward the top few percent as it is today, my concerns run more to the last rounds of a game of Monopoly and what happens after the last player lands on Boardwalk and one player has all the money.

While "government" may have become more intrusive in terms of EPA etc as we struggle with a more crowded nation, I'd point out for most folks the aggregation of corporate power is much more insidious and destructive. Much of this decade will be one of struggling with the social contract and proper role for, increasingly, nationless corporations.

On the Constitution David says it better than I can with the essence being that of:

"Why does the Constitution have authority today? It is not because the framers were perfect human beings or the Constitution was a perfect document. It is because the alternative to following the Constitution is anarchy, civil war, and death."

And the one area where should be able to do much better is that of following the dictated of the C in regard to requiring a Congressional declaration of war, except in the most immediate short term responses to a TRUE emergency. Not sure why I have next to no support for Constitutional conservatives.

Aaah....... the subject of "race" (quotes as today we know from DNA that "race" is but a cultural device) as de Tocqueville mentioned as being "America's Achilles Heel" is still a huge problem. I've lived through most of the "civil rights era". I was just a kid when Rosa rode in the front of the bus, but will never forget trying to stop in an Army gate beerhall with some fellow basic trainees most of whom were in Class A uniforms that had just passed inspection only to be told they'd not allow "him" in here.

No......... we'd not be where we are w/o the courts and the affirmative action that Sandra Day O. agreed was needed for at least the next couple of decades. BTW, I've never heard a single lament from a conservative on the sort that allowed young George Bush to jump the line for a safe spot in the Texas Air Guard, or that got him into a top Ivy college on mediocre grades.

Something that often seems over looked in the matter of "race" is that of the numbers. As "blacks" for example are but 1/8th of our population, the majority relates to them on 1/8th of the time, while for them they are dealing with the "white" majority 7/8ths of the time and that figure made worse by the majority have vastly more economic power. And yes, it has been relatively easy for most of that 7/8ths to afford a home in the suburbs and leave the problems of our once great cities behind, be they "white" or "black" poor.

I don't buy the following at all:
"Concerning fragmentation, we are fragmented now largely due to increases in diversity. As I have pointed out in citing the Putnam study, as people encounter large numbers of other people who are racially, ethnically, linguistically (a different language or even dialect), and culturally, they tend to withdraw from one another, even people who more closely resemble themselves. We are destroying our "social capital" that informally and spontaneously facilitates cooperation and a sense of "civic friendship," as Aristotle put it."

Here there is something to do with the pace of immigration. My Dad came here in a wave of immigration at a young age from Ireland to grow up amidst signs stating "No Irish Need Apply". I'd say that having the benefit of knowing the language, and access to either public or Catholic schools, and knowing a craft, it was less than a one generation integration, while for those of differing languages or more identifiable features (handy for prejudice) others may have taken a generation or more but language "barriers" soon go away.

I don't think diversity fragments our society and surely it makes for a culturally richer nation; consider the diversity of foods, musical and dance influences etc. It seems to me that healthy folk gather around common interests be it sports, hobbies, religions etc. A while back I caught the last concert of Tina Turner's Private Dancer tour in Honolulu on New Year's Eve. The audience ranged in age from perhaps 18 to 70 or so and was as "racially," ethnically diverse as any I've seen, but that night we were all Tina fans, and Americans.

Getting back to the filibuster, the debate here has me moving more toward getting rid of it or again lowering the percentage required for the super-majority. On the other hand while it makes it tougher to pass H/C reform, or re-institute needed contraints on our WS thieving class, in the near term it would be almost impossible for those flacking for the "insurance" industry to over-turn the reforms. Guess I don't think much of the status quo and have a general trust in a closely watched majority to move in the right direction.

Chris Graves

Well David, I see that you have returned to your less civil tone. Have you ever thought of enrolling in a Dale Carnegie course? In any case, let me address some of your points. First, I do not agree that if the state takes some action that in some slight way "redistributes" wealth such as the example you cite or providing police and military services which are funded by taxing some people at a higher amount than they might pay for the same services privately that such incidental redistribution opens the legal floodgates to Federal policies that are designed to force people into a pattern of equality of result. One has to have a sense of proportion here. Clearly, efforts to more thoroughly redistribute wealth to equalize condition and status are inconsistent with the right to private property and personal liberty. Consider Article 1, Section 9's prohibition on using a Federal income tax to redistribute wealth. The Sixteenth Amendment changed this provision, but it shows where the Founders' intentions lay on such issues. The prohibition on granting titles of nobility that you cite as justification for leftist policies is better explained in terms of equality before the law rather than the state taking an active role in equalizing status that occurs as a result of the free interchange of autonomous individuals.

Next, I see the sources that the Founders drew from as indicative of the underlying philosophy that provided the background against which they made more explicit decisions about governance. So, Locke, Montesquieu, Blackstone, English common law, traditions dating back to Greece and Rome are informative of the American Founders' understanding of political institutions. Much of what people explicitly espouse is simply the tip of the proverbial iceberg that lies in a sea of implicit beliefs shaped by culture and philosophical zeitgeist that they are immersed in. Those influences that I touched on in my previous post in reply to Jack challenging his claim that the Founders invented the United States out of whole cloth should be considered in order to gain a deeper insight into the intentions of the Founders as they founded American political institutions within the bounds laid out by the social, religious, philosophical, and cultural milieu they lived within.

Another disagreement that seems to emerge as we go back and forth is that we differ on the degree of specificity in referencing the Founders' views for purposes of constitutional interpretation. I do not see that exploring original intent in order to better grasp the Constitution's meaning binds us down to the particular twist on the common political paradigm that an individual participating in the Constitutional Convention pushed. That is especially true when we consider that others who participated in the process reasonably tweaked the political paradigm in a different way. For example, all of the Founders shared an underlying Lockean political philosophy that evolved from the practices and attitudes prevalent in England during the Seventeenth and Eighteenth Centuries that continued into the Nineteenth Century. But, as we have both touched on, Jefferson and his allies and Hamilton applied the same basic political principles in different ways that were reasonably consistent with the English and American traditions. The French classical liberals accepted the same basic principles as the American and mainstream English liberals but with a very different emphasis. While all these variations on a liberal theme could claim a common political heritage, each still differed significantly from the others in how best to implement the same abstract principles. The common political schema created a degree of consensus but simultaneously the different slants on the common principles led to the different political parties in the U.S. and ultimately different regions of the country with the South embodying the Jeffersonian perspective as the North made the Hamiltonian vision concrete. Of course, France moved in another direction entirely. Each of these developments reflected not only individual intellectual differences of the political leaders at the time, but demonstrated how ideas are translated into a living practical reality in different environments.

A conservative view of law should include not only a careful understanding of the abstract principles written into a legal document but also adapting those principles to fit the contingencies of the particular setting people live their lives in. As different people in different locations apply the same fundamental principles, most likely significant differences will emerge within an underlying unity. The variety of implementations of principle in accord with practical reason might very lead to apparent contradictions. These seeming inconsistencies may seem troubling to some as one considers the positions taken by the various cultures and sub-cultures’ political leaders. Thus, while Madison was more interested in centralizing government at one stage of his career, his primary interest at that moment should not lead us to conclude that we should give the Constitution a one-dimensional reading. Madison and Hamilton's views at the time that the Constitution was up for ratification are certainly informative and should be considered as you argue. But the problem with reading them so closely and looking for an enforced consistency when later Madison took other perspectives is that it locks in a set of concerns that were ascendant at that moment as if those concerns were the only ones in play at any time. When the Founders showed an interest in a problem or set of problems and how to deal with them, their focused attention on those problems should not necessarily force us to the conclusion that they had no other countervailing concerns that were latent at the time. We can think of the implicit set of beliefs as the reservoir from which particular explicit discussions arise as evoked by the press of immediate circumstances.

We should also avoid a slavish adherence to the views of any single Founder or even the entire body of the Founding generation as if they were the source of law. While they were especially insightful, we should be able to verify their findings via reason, evidence, intuition, and the accumulated body of knowledge that has been passed on to us as their understanding has been substantiated in the collected experience that spans generations. The quotes we produce from Hamilton, Jefferson, Madison, et al should be appealed to for clarification and to stimulate us to see the truth for ourselves. I am more interested in the truth than following authority without reflection.

I am wondering if you are a Hobbesian legal positivist or a Northern conservative in the Federalist tradition? I am not a legal positivist. I coming from a Lockean natural rights position implemented very pragmatically that encourages people to attend to a feedback loop that fosters adapting universal principles to localized conditions. I do not see law simply as the written code that can be implemented as if one were following a mathematical formula. Rather, as I have suggested, law should be applied in a holistic way based on intuitive judgement with rational analysis used primarily to clarify closely made distinctions that are central to coming to just conclusions. Of course, these judgements must be tethered to the text of the Constitution. As Michael Polanyi observes, the explicit is derived from the implicit that synthesizes highly complex information that the conscious mind can only get glimpses of.

Finally, as for your arguments for banning filibusters based on making the legislative process more responsive to the needs of society, I agree that the drawbacks to filibusters that you identify are real. I would agree that the filibuster should not be used as frequently as it has been in recent years. It should be reserved to challenge significant changes that the minority truly feels threatened by. The benefits that I identified above are also real. There are some very hard trade-offs on this issue, but I believe that the judicious use of filibuster can make our political, economic, legal, and social institutions more stable over time by avoiding dramatic fundamental changes when incremental ones would be more prudent in addressing public problems. In reply to your point about the need to avoid violent conflict, I think the violence that you abhor is more likely to occur if certain groupings of people feel that they are completely ineffectual due to their minority status and feel threatened by a central power’s policies that are perceived as existential threats to their way of life.

David Welker

Chris Greaves,

First, I want to compliment you on the depth of your responses. They are very interesting. Nonetheless, they also seem to me to be mostly non-responsive in terms of providing actual evidence for your views regarding the filibuster.

(1) You have not produced any evidence in support of the filibuster.

I appreciate your desire to think for yourself. But the meaning of the Constitution is public and its meaning is coercively binding. Which means that what the Constitution means is not about your own personal thoughts about what is best or makes sense. I agree, for example, that the filibuster has benefits. Just as I would agree that a benign dictatorship would have benefits. But neither the filibuster nor a benign dictatorship are Constitutional and neither are legitimate.

So, lets just start with some basic premises. You need to produce specific evidence for your views, not generalizations based on your readings of particular historical works. I of course agree that "Locke, Montesquieu, Blackstone, English common law, traditions dating back to Greece and Rome" all influenced the understanding of individual framers at Philadelphia and individual ratifiers in the state ratifying conventions, although obviously in diverse ways and to different degrees. That is fine. But the question is not whether these things influenced them, the question is how that influence manifested itself. For example, it is quite clear that the framers were not entirely happy with English law and institutions, otherwise the Constitution would have set up a King, Parliament, and House of Lords. So, the Constitution is a rejection of parts of these historical sources as well as an affirmation of other parts. It was not only the benign exercises of power by historical institutions that influenced the debates at Philadelphia, but abuses that they wanted to prevent from happening again as well.

So, when I talk about evidence, I mean you have to move away from generalities. Just citing something that John Locke (who voted him King?) wrote in his Second Treatise on Government does not count as evidence of the meaning of the Constitution. Instead, you need to connect these historical sources to the text of the Constitution, the debates at the Constitutional Convention, the public debates preceding ratification, or the debates that occurred at the ratifying conventions held in each of the states. Those are the primary sources of evidence regarding the Constitution's meaning. Maybe in discrete cases, you might make a connection to other practices, but you need to make a specific linkage and establish that (1) the framers and ratifiers were aware of a particular practice and (2) intended to affirm rather than reject that practice. It is quite clear, for example, that the idea of separation of powers into three branches was influenced by Montesquieu. There are parts of the Spirit of Laws that are affirmed by the Constitution. But there were other proposals in that same work that were clearly rejected. Given that, how do you feel about people citing the parts of the Spirit of Laws that were clearly rejected as evidence that the Constitution means the same thing? What is to prevent this perverse result if mere generalizations are allowed to stand as evidence? Clearly, such generalizations and the rule of law are simple incompatible. That is why the Federalist Papers, which are directly precisely to the question of the Constitution's meaning, are so much more authoritative on the meaning of the Constitution that John Locke's Second Treatise on government or Montesquieu's Spirit of the Laws.

I am not a formalist. I do not think there are mathematical formulas that determine the precise meaning of the Constitution. That does not mean, however, that anything goes. That does not mean that the Constitution, which is a coercive public document whose meaning has profound implications for our entire society, means anything you want it to mean.

(2) On redistribution.

A final point, unrelated to the topic of filibusters. The protections regarding requiring that "direct taxes" be equally apportioned were mainly motivated to prevent discriminatory taxation of slavery. That was its rather narrow purpose, although it gained a larger meaning when the Supreme Court decided to use that provision to forbid the imposition of an income tax. Needless to say, that Supreme Court decision was overturned by the 16th Amendment. The more relevant provision regarding redistribution would be found in Article I, Section 8 which authorize Congress to spend in order to "provide for the common defense and general welfare." It is quite clear that, whenever the government spends for the general welfare, it is engaging in redistribution. If the government provides national defense, obviously people who are so poor that they do not pay taxes nonetheless benefit. Likewise, when the government pays for education, those who are too poor to pay taxes nonetheless benefit. Your objection is that such redistribution cannot go "too far" and it has to have a "sense of proportion" according to your own personal tastes. But the Constitution does not reify your own personal tastes. That is just plain wrong. The wisdom of spending is left to Congress, who are themselves accountable to the People. If you want either less or more redistribution, your appeal must be to Congress or the next election, not the Constitution, which clearly leaves Congress considerable discretion to do things both you and I disagree with.

Remember. The most important thing that the Constitution does is provide a structure with checks and balances for political competition among people with diverse beliefs.

Chris Graves

Thanks for your courteous and well-reasoned reply to my previous post, David. I shall reply to your two main objections. Before I do, I believe that we are conflating two related but distinct issues in our discussion. One issue is the constitutionality of the filibuster and the second is the fundamental nature of law and the U.S. constitution in particular. I shall touch on each of these in turn.

First, I am not seeing any specific provision in the text of the Constitution to forbid filibusters nor am I seeing anything other than your quote from Hamilton showing that the Founders intended to ban filibusters. As I said previously, the Congress is free under the Constitution to set its own procedural rules and these rules have included the possibility of a filibuster since the early 19th Century. I am not aware that the filibuster has been challenged since this time on constitutional grounds. Has it? If not and since it has been recognized as legitimate, if annoying at times, for the better part of our history, it seems that it is you who have the burden of proof to show that the practice is unconstitutional. The practice has merit on its own terms as I have argued and it has been long-recognized as legitimate as it has been practiced since early in our history. It seems that a more constructive route for you to take is to argue that the filibuster while not being unconstitutional is an obstacle to good government and should be banned by changing the rules of the Senate.

Even in the passage from Federalist 75 that you quote from, Hamilton does not seem to have the filibuster primarily in mind in this discussion. Since he says "that ALL provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority"[emphasis added], I think your use of this quote does support your contention because "all" provisions would include legislation, not simply ratification of treaties. I just do not think Hamilton's judgement, however reasonable as it is, is binding on Congress. From my understanding of the history of the filibuster, the bulk of the Founders and members of early Congresses did not think it was a big deal one way or the other. Again, Hamilton has a point of view on the efficacy of the central government not shared by all of the Founders. His is a legitimate point of view. Hamilton shared the same traditional political paradigm with all of the other Founders although he did have a different set of concerns and emphases than did other Founders who all operated from a generic Lockean framework. Incidentally, if you read down a bit in the same paragraph, Hamilton appeals to the experiences of ancient Rome and other European countries to support his point here. Of course, all of the Founders used a common set of references that included Rome and Greece as well as other European political and social history.

The second major point that I want to take up in this post is the nature of the law and the U.S. Constitution. You keep saying that my references to natural law as laid out by Locke and other European and American commentators reflect my personal preferences. While economists tend to re-define just about every judgement as a choice reflecting subjective preferences so as to avoid bogging down in a discussion over whose perspective is ultimately correct, we must not slip into thinking that the economist's methodological device reflects reality. The claim Locke and the Founders are making is that these precepts of social and political order that Locke identified are objective descriptions of laws of nature established by God. As I said in my previous post, I believe in natural law, and that entails that I think that this view is true. My recognition of the truth of natural law is not on the same level as my personal preference for certain flavors of ice cream as you seem to suggest. As I said previously, of course, the Lockean analysis of the state must be tethered to specific language in the Constitution, but we must read the terms in the Constitution from a Lockean vocabulary since that is the "language game" that the Founders were operating from. My claim here is supported by the historical record. For example see Donald S. Lutz and Charles S. Hyneman "The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought," American Political Science Review, Vol. 78 (1984): 189-97. They do include Montesquieu as you have recognized in their list of critical influences on the Founders along with the Bible, Blackstone, and Locke. Of course, all of these theorists were working from the same basic set of assumptions about political institutions.

The same point applies to judgements over what is the issue of redistribution of income and wealth. Certainly, the Constitution does not authorize Congress to engage in extensive redistribution of wealth and status via taxation or regulation of social and business relationships. The General Welfare clause is the opposite of social engineering since it only authorizes the Federal government to lay down broad rules to allow people to act within with the purpose of fostering the conditions for people to flourish by pursuing their own goals, not the social goals of a central social planner. The concept of 'equality' that the Founders accepted (equality before the law) ruled out 'equality of result' since to make unequal people equal, the government must treat them differently.

I suspect that you and I see the Constitution as serving fundamentally different purposes. I see the Constitution primarily serving the purpose of protecting private property, and with such protection a broader range of individual rights, as well as enforcing contracts. I see democratic institutions at the Federal level primarily serving as a break on the power of elites. While I agree with you that the Constitution lays out broad rules that people are free to act within without mandating many specifics, which is the rule of law, I suspect what you might mean by this claim is that the Constitution does not endorse any one political, social, or economic philosophy so that people are free to hash out their differences in the democratic political process. Am I right about your views here?

If so, here are two fundamental problems with your view. One is that it is just plain false. There is no neutral philosophical point of view that the state can take for people to work out their differences within. As I was arguing above, the political system is intertwined with a range of practices and beliefs that are embedded in a culture. It is impossible to disentangle these influences. Our system has a definite origin and a specific point of view philosophically even if there are reasonable variations of it that generate intense controversy from within its basic framework. If people want to change our system to reflect a different political paradigm, then there is an avenue open to them to make the changes they desire, i.e., constitutional amendments. But until such basic changes are made, our rights as understood in the Lockean framework are protected by laws penultimately given shape by the U.S. Constitution, our social contract. Consequently, certain political movements are ruled out of bounds even if their candidates are elected to office if they attempt to pass legislation that is contrary to our constitutional system. These dissenters have the right to speak and write in order to convince people to move away from the Lockean paradigm and pass constitutional amendments that alter the fundamental nature of our society, but until they do, even if elected to office, they have no business acting on those beliefs. Certainly, our constitutional system locks out Marxists or monarchists or fascists or theocrats from the start as far as using the Federal government to enact non-classically liberal policies. That is a conservative bias in our system that I believe the filibuster also acts to conserve.

Chris Graves

Jack, thanks for your thoughtful reply to my latest reply to you. We are still largely disagreeing. I am not sure of the source of the disagreement since you say that you share some of my concerns about social stability. I do think that we disagree on the flexibility of human nature.

I have had similar experiences to yours at the Tina Turner concert. I used to live in Oxford, Mississippi, and loved to go up to Memphis to listen to the blues on Beale Street. Many times I was the only white in black night clubs there. People were always very welcoming and kind to me. I very much enjoyed my experiences in Memphis. But the question is, how typical are our experiences and, even then, how much contact over time are most people comfortable with and exactly how is such inter-racial interaction managed at a personal level? Is that something the state can or should regulate if the experience is to be authentic?

I am not denying that there are benefits to diversity along the lines that you mention. I am just saying that the differences also create conflict and inequality of status. Incidentally, if we did not have racial inequality, then we would have more class conflict as Europe has. I am afraid that conflict and inequality are inevitable.

Secondly, how do you deal with the Putnam study? It has been duplicated around the world and within the U.S. by Duke University.

Finally, on race, even if it is difficult to specify the determinates of racial differences, people seem to make them at the common sense level. How do you account for the results of Harvard's Implicit test results that show the vast majority of people demonstrate a preference for their own race? Have you taken the test yourself? If not, it might be interesting for you to take it. If you are interested, try it by Googling Harvard Implicit Association Test.

David Welker

Chris Greaves,

I am not sure what your saying here. If you wanted to say that historical sources X, Y, Z informed the framers, as I said that would be fine. But if you want to say that historical sources, X, Y, Z is determine the meaning of Constitution without evidence, but merely based on your personal reasoning on the matter, then you are simply crazy. It seems to me that you are saying that latter. But if the Constitution had meant to adopt Locke's Second Treatise on Government or Montesquieu's Spirit of the Laws, it would have said so. Also, it should be noted that the list you have provided of influences on the framers is far from complete, nor are all such sources of influence in agreement on basic points, as you absurdly assert.

Is it your view that "natural law" trumps the Constitution? Well, that is clearly a lawless point of view. I am sure that Hitler and Stalin believed in a "natural law" of a sort. Too bad that those who dissented from their visions had to be murdered. What happens when we disagree on natural law? What mechanism do we have besides violence to resolve our differences? The rule of law requires that we move beyond mere personal philosophy (whether or not we self-servingly assert that our own subjective personal philosophy is actually "objective" and thus everyone should believe it) and to actual evidence.

I find your dismissal of the Federalist Papers amusing. What evidence have you presented? None. Before you can bash the evidence on the table, especially from such an important and credible source, you have to produce some of your own. I should say, that this is not the only piece of evidence. The basic understanding of the founders was that under a Republic, the majority would rule. This is evidenced repeatedly in the writings of Jefferson, Madison, and Hamilton. This is why there was an obsession with minority rights. Obviously, the rights of the minority would not need such protection if the minority could just block any legislation it did not like anyway. Just look at Rhode Island under the Articles of Confederation. Given the unanimity requirements, nothing important happened that Rhode Island did not like, no matter how urgent the need to act.

I will tell you another piece of evidence that you are bashing. The lack of debate about the possibility of the filibuster. You actually asserted with a straight face that a filibuster would be no big deal and the framers would not care one way or another. GIve me a break. Your totally nuts. You obviously have not read either the notes of the Constitutional Convention or the subsequent ratification debates. The Constitution was hotly debated. Every single bit of it. Even minor provisions. But, this issue, which is obviously fundamental, was not even worthy of mention, much less debate?

Think about what your saying for a second. The Constitution was meant to replace the Articles of Confederation, which had many flaws, but primary among them was the requirement of unanimity to make important decisions. The fact that the government under the Articles of Confederation was so dysfunctional is precisely why the delegates gathered in Philadelphia with such a sense of urgency. Now you are asserting that the framers would have thought it was fine for either the House or the Senate, through its rule-making power, to nullify all the work that was done at Philadelphia and the hard fought battle for ratification by simply requiring unanimity for the decisions of government, returning us to a system that was every bit as dysfunctional as that under the Articles of Confederation? After all, under that interpretation, the rules could just as easily require 100 votes in the Senate instead of 60. They once required 67. Further, the rules propose to require 67 votes to change the rules. That could be changed to 100 instead. The rules also purport to operate indefinitely across sessions of Congress. So, according to you, the framers would be indifferent to whether a temporary majority either in the Senate or the House essentially undid its work by requiring unanimity for all business. (This is also the flaw in the people who argue that filibuster is special to the Senate. The rules specify that either House may set its rules. Therefore, the filibuster, if allowed despite its plain illegitimacy, is something that could exist in BOTH the House AND the Senate. Arguments about how the Senate are "special" in this regard simple ignore the text of the Constitution.

Under this interpretation of framer indifference, not only could either the House or Senate establish that unanimity is required to pass legislation, they also could basically nullify their own existence. If the House and the Senate can change the requirement that laws be adopted by a majority, they could just as easily change the rules so that only 1 vote is required for that House to approve a law instead of a majority or an arbitrary supermajority. So, you are asserting that the framers thought it was in the power of a simple majority of the Senate to effectively end the existence of the Senate forever. You could have a situation where the House approves a law, and it only has to be agreed to by 1 Senator before being submitted to the President. Or even more perversely, both the House and the Senate could, by the votes of a simple majority to change the rules, act so that only 1 member of the House and 1 member of the Senate are needed to approve laws. Then it would take only the agreement of 1 member of the House, 1 member of the Senate, and the President to pass a law. That would lead to a dictatorship! It would always be easy for a President to find one Senator and one House member to agree with him on anything he wanted to do. Under your theory, the House and the Senate could even entrench this new structure by requiring unanimity to change the rules.

Your statement that the framers were or would be indifferent about the number of votes required to pass a law is not only absurd, but also a major insult to the intelligence of the Founders.

In fact, the issue of representation and the process of passing laws was so important, that the Constitutional Convention actually started with that issue even before discussing what powers the new government would have. There Constitution reflects a hard fought compromise resulting in a delicate balance of power. The conflict was so serious that it nearly derailed the Convention and resulted in a compromise that Madison vociferously disagreed with. But, of course, it would be a matter of indifference whether this hard fought compromise was nullified or the balance of power it struck was fundamentally altered?

Your arguments simply have no credibility. You clearly are arguing just to argue. You clearly don't know what your talking about. You haven't done your homework. You assert that "all of these theorists were working from the same basic set of assumptions about political institutions." But this is just false. Important political theorists (who include more than your selective list) at the time of the founding did not agree with each other. The framers did not agree with each other on basic issues of political philosophy either. The Constitution is more of a compromise between conflicting political philosophies (it is harder to imagine a larger gulf in political philosophies than views supporting and against the despicable institution of slavery) than it is an agreement concerning some sort of comprehensive political philosophy (which CONVENIENTLY you assume to be just exactly what you happen to believe). You are spewing out nothing but garbage.

You keep on talking about the importance of background understanding. Well, the evidence is that the background understanding was that republics were to be run on the basis of majority rule. The reason that this was not mentioned in the Constitution is because this was so obvious and it was thought that this need not even be mentioned. Only deviations from this background understanding needed to be explicitly mentioned. Obviously, this assumption of the framers that this didn't need to be explicitly mentioned was wrong, given the perverseness of human nature and the recklessness with which individuals disregard the "obvious" when it does not suit their own political ambitions or philosophy, as you so aptly demonstrate.

But that something is not explicitly said is not the same as saying that it is not important or even critical. As has been mentioned, if the idea is that the House or the Senate can set the number of votes necessary to pass laws by a simple majority, they could fundamentally and permanently alter the fundamental nature of government. So much for the supermajority requirements for amending the Constitution! Why bother when under your view the nature of government can be fundamentally altered by a temporary majority by simply adopting a new rule of proceedings?

A final point. Your reading of the Constitution deserves no respect. You are trying to put your "opinion" on the same level as mine. But there is a big difference between our opinions. Mine is based on an honest assessment of the actual evidence. Yours, in contrast, is clearly not based on evidence (you have not cited any), but instead your own will and personal political philosophy.

I am pretty much done with this discussion. In a nutshell, I view your arguments, if taken seriously, as tending to create a regime that would be fundamentally illegitimate. I also think you are lazy and ignorant in stating such strong opinions without doing the work to gather actual evidence.

I should note that this most recent comment was a little stronger than the last, and appropriately so. I want to further retract any apology I made to you originally about impugning your motives. I think it is entirely proper for me to impugn your motives at this point, now that you have provided more information on your views.

You need to do two things.

(1) Do your homework. Your opinions are ignorant rather than informed to the extent that you assert such absurdities as how the important influencers on the framers were all in agreement on political philosophy.

(2) Recognize that the Constitution does not comprehensively adopt your political philosophy or any other beyond the basics of republican government (where power is held by the people). You seem to want to put your comprehensive personal political philosophy above the will of the people. As such, you deserve to be ostracized and scorned.

Chris Graves

Final words on this discussion with David: David, didn't your mama teach you any manners at all? If your primary concern in political matters is to avoid violence, then I would suggest dropping the childish name-calling and practice showing your interlocutor personal respect. There is a degree on anonymity on the internet that loosens a constraint on civil behavior allowing some people to feel free to displace their hostility onto seemingly impersonal objects out here in cyberland. Your latest post is an exercise in boorishness. I am serious about trying a Dale Carnegie book or course that I am sure is available in the area you live in. Insults only breed resentment and hostility. It does not change anyone's mind.

On the substance, I shall address each of your concluding points in turn. First, as I have said previously, it seems that the method that you use to establish origin intent is to search for and find specific quotes from the Founders who make explicit references to particular controversies. The problem with that sole approach is that the quotes do not make any sense nor the key terms used in the quotes if one does not understand the overall philosophy that the Founders worked from along with the habits of mind that they cultivated since birth as they were immersed in a particular way of life that that philosophy grew out of. All of the Founders accepted the same basic classically liberal political philosophy that reflected the practices and attitudes of the rising middle class in England (and their American colonies) at the time. They certainly had their disagreements as I have said that included the legitimacy of slavery but none were operating from a radically different political paradigm. I cited political scientists who have carefully studied the writings of the Founders and have cataloged their most frequently cited sources that they drew from in defending their views. So, we do have very clear evidence of where they were coming from politically. If you would like to dispute this point beyond mere assertion, I challenge you to do so. Do you have any evidence of any of the signers of the Declaration of Independence or delegates to the Constitutional Convention showing that they rejected the right to private property, liberty of contract, some democratic checks on governmental authorities, equality under the law, or a market economy?

Perhaps, there is a misunderstanding on this point that I should try to correct. I never said that courts should refer to extra constitutional sources directly to justify a legal decision. I am not sure if you are claiming that judges should do so by using the Federalist Papers as a binding legal document. Surely, you are not making such a claim. But what I am saying is that judges, and legislators and the President for that matter, should be well-versed in the political philosophy that shaped our founding documents and attempt to remain in the spirit of that philosophy as articulated by the Founders as well as Locke, Montesquieu, Blackstone, and others in drafting, enacting, and enforcing laws. No document or legal mechanism can ever serve as a substitute for the living persons who populate a nation to serve as living, breathing exemplars of a political philosophy that shapes their minds, their hearts, and their daily practices. That is why the educational system is so crucial to the perpetuation of a culture that makes liberty a reality as is the type of people and their way of life who populate a country.

Next is your point about natural law. Again, there is no reasonable question that the Founders all relied upon the natural law tradition. Again, I cite the study from the University of Houston on this matter. If you dispute this claim, then once again, I challenge you to provide evidence to support your assertion. There is no way for us to avoid these philosophical and religious discussions. They affect everything we do. We can engage in open inquiry and discussion basing our arguments on reason and evidence as well as intuition but, in the end, there is no way to guarantee universal agreement. This point relates to the ongoing discussion I am having with Jack on race and ethnicity. I do not think that we can have a political community if there is too much difference, either ethnically/linguistically/culturally or philosophically. Another way to avoid violence other than what you seem to be suggesting (democratic bargaining) is to subdivide political jurisdictions either through a system such as we now have only with greater Federalism (i.e., more local and state autonomy) or secession and setting up different political regimes that reflect irresolvable differences. I do not believe that majorities coercing minorities is the answer to fundamental disagreement. The democratic strategy only works over time if the differences among people are not that great.

As for your points on filibuster, I am not dismissing the entirety of the Federalist Papers whatsoever. I think they should be considered and taken very seriously. I just do not think what Madison and Hamilton wrote in those documents should have the same legally binding power as the Constitution itself as I said above. The evidence that we have on the filibuster is that it has been allowed since the first decade of the Nineteenth Century according to the rules of the Senate passed at that time and that continue to be voted on and passed each successive session of Congress. The rules have been modified over time regulating its use, but I am not aware of anyone who has made the claims as you have that it is unconstitutional. The collected judgement of Senators and legal commentators over two centuries has been that it is not unconstitutional. Can you cite someone other than yourself who has made the argument that you are making? If not, the evidence that the filibuster is constitutional, even if it might not be a good idea or it is overused, is that the practice has continued for so long. The filibuster is not the product of my personal opinion nor is the entire philosophical edifice that the Declaration of Independence and the U.S. Constitution are based on. All of these things came about long before I was born. In any case, I am not sure what you are arguing for here on the filibuster. Are you arguing that the Supreme Court should strike it down? Surely, you are aware of the constitutional problems involving Separation of Powers with that possible approach. If you are making this argument to influence public opinion and the opinion of elites to prod the next Congress into changing the Senate rules, then we are in agreement on the procedural path for you to take. I am not sure of the "cash value", to use pragmatists' language, of this discussion centering on the filibuster's constitutionality especially with the vitriol that you bring to it. Finally, on the filibuster, you raise the question whether the House or Senate could substitute rules other than majority vote for legislation. I do not see why they could not, say, vote to establish a rule that required a 3/5 majority for a tax increase. That rule could be changed by another Congress, of course. But even if you disagree here, technically the filibuster does not require a 3/5 vote to pass a bill. In effect, it does, but more specifically it requires a super-majority to merely limit debate. So, the two issues of allowing filibusters and the Congress passing rules to alter the number of votes needed to pass certain measures that do not contradict the Constitution (a 3/5 majority is still a majority) are not exactly the same issue.

As for you final two points in summation, I disagree that the Founders were not working from the same fundamental paradigm that does go beyond republicanism very broadly conceived unless you define 'republicanism' in more specific terms such as including the right to private property (serving as a basic model for all individual rights) and liberty of contract as explicitly articulated and defended by John Locke and the other theorists whom I mentioned above whom the Founders drew from. Second, I do not see that the fundamental assumption that the Founders worked from was a faith in majority voting to resolve differences that now go far beyond differences over slavery. Even here though you and I are still working within the classically liberal framework. We are placing a different emphasis on popular sovereignty and individual rights (and with them the freedom to form distinctive social unions).

I suspect that the root of many of the differences we are having here could be found in discussions between positivists such as Robert Bork and Antonin Scalia on one side with libertarian theorists such as Richard Epstein and Randy Barnett on the other. My view would be closer to the latter two legal theorists. The other set of controversies that we differ sharply over centers on the nature of knowledge with you taking a more scientifically positivist view while I take a more holistic, implicit view. Authors reflecting your view as I understand where you are coming from would be legal commentators associated with the so-called Vienna Circle while I am working from the legal and epistemological thought of F.A. Hayek.

These are honest and legitimate disagreements. In the future, I hope we can revisit them in a more friendly and civil manner.

David Welker

Chris Greaves,

(1)
Once again, you have failed to cite any specific evidence concerning the filibuster.

But that is because you do not have any evidence. You have already decided what you are going to believe about it based on your policy preferences. That is a lawless and fundamentally illegitimate approach. I am fairly certain that the actual evidence is irrelevant to you. After all, who needs evidence when one has all the answers based on political philosophy?

(2)
The Federalist Papers have been cited on countless occassions by the Supreme Court to assist in the resolution of cases. And THAT is entirely proper. The Federalist Papers have an authoritativeness that Locke's Second Treatise on Civil Government does not have, as they purport to explain what was agreed to at Philadelphia and were written by those actually in attendance and also influenced the debates preceding ratification concerning the meaning of what was being voted on. Locke's Second Treatise does not have these properties. Are the Federalist Papers "binding" legal documents? To the extent that they resolve ambiguities in the Constitution and are uncontradicted by other equally valid sources of evidence, they absolutely are binding! If they were contradicted by other equally valid evidence, then they would be persuasive, rather than binding. It is dealing with such contradictions that makes law into an art, and not merely a matter of mathematical precision. But when all the evidence points in the same direction, the law might as well be mathematics. Not all law is ambigious. It is not the case that anything goes, as you would seem to have it with your tendency to stick towards generalities.

(3)
The word "majority" is not used in the Constitution when it comes to the number of votes used to pass a law or make a rule. If the position is that the House and Senate each have the power to set the number of votes required to pass a law, then logically they could set that number at LESS THAN a majority. They also could require UNANIMITY, even though that is PRECISELY the system established by the Article of Confederation that was being rejected.

(4)
Supermajority requirements contradict the concept of "majority rule" since they subject the will of the majority to the minority. When supermajorities are required, the minority can block the majority and the majority can block the minority. It is a matter of pure will. This results in deadlocks that embarass the operations of government. But, since the majority has responsibility for governing and thus the need to act, while the minority benefits from embarassing the majority, in practice the will of the minority will always be stronger than the will of the majority, due to the differences in their incentives. That is why, even though the majority has the power to block the minority, supermajority requirements tend to subject the will of the majority to the minority. Perversely, the compromises that result will tend to reflect the will of the minority MORE THAN the will of the majority. That is why supermajorities, to paraphrase Federalist 75, embarass the operations of government and tend to subject the will of the majority to the minority. The framers were quite aware of this dynamic, having experienced it first hand under the Articles of Confederation, which were a complete and utter failure. (As our government will be, if we continue down the the same path.)

Basically, it is ridiculous to say that a supermajority requirement is a "kind of" majority requirement. It is an entirely different beast.

(Note that supermajorities for Constitutional Amendments do not, in contrast, subject the will of the majority to the will of the minority. No one expects the majority to pass a Constitutional Amendment, although they are expected to proceed in the ordinary business of governing, such as passing budgets and necessary laws.)

(5)
You assert that "of course" each Congress has the power to set its own rules. Is it that obvious? The Constitution does not say that each Session of Congress gets to set its own rules, it says that each House may set its own rules. In fact, the Senate Rules purport to operate indefinitely. Senate Rule V(2) asserts: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." What provisions do the Senate Rules have for changing the rules? Senate Rule XXII requires a two-thirds vote to change the rules. Your assertion that "of course" each Congress has the power to set its own rules is an assertion that the Senate Rules are unconstitutional. Something I happen to agree with. But, that you say "of course" this is true is just another demonstration of your ignorance.

(6)
Your argument that "technically" 60-votes are not required to pass a law, only end debate is simply "cute", not to mention disrespectful of the Constitution. Do you believe that the substantive meaning of the Constitution can be evaded by such manuevers? For example, some people argue (I think incorrectly) that the phrase "public use" in the 5th Amendment in the takings clause which states "nor shall private property be taken for public use, without just compensation" means that the government cannot take property from one private party (say a gasoline station in a slum) and transfer it to another private party (say a private university who has pledged to rehabilitate the area and provide jobs). Let us assume that this interpretation of the takings clause is correct.

If this interpretation of the 5th Amendment is correct, is it your position that this clause could be evaded by the government taking the property, maintaining legal title for itself, but then transferring physical control with a 99-year lease to a private party that pays $1 a year? Wouldn't such a course of action tend to nullify the Constitutional provision?

Your answer should be that you would not tolerate games that reduce the Constitution to a nullity. The government cannot evade the substance of the Constitution by employing "cute" technicalities. To do so is disrespecting the Constitution, and if this approach were allowed the entirety of the Constitution could be easily evaded. Again, I detect an underlying unseriousness and disrespect for the Constitution in your argument. I am sure you would not employ or tolerate such illogic and disrespect for Constitutional provisions you actually support.

You are obviously not arguing in an intellectually honest manner. This is just more evidence (as if any more were needed) that you are employing a results-oriented approach.

(7)
Your claim that all the framers had the same views on important matters of political philosophy is absurd. Why do you think our political elites divided into factions nearly immediately after adopting the Constitution, despite the warnings against factions in the Federalist Papers? Did the founders tend to agree on a limited non-comprehensive set of ideas at a certain level of generality. Yes. But as if often said, the devil is in the details. Did they all agree on every comma and period in Locke's Second Treatise on Civil Government. Absolutely not. You seem to desire to elevate political philosophy (especially your own political philosophy) to the same level as actual law. That is lawless and illegitimate.

Not one of the framers "agreed" with the Constitution itself fully as a matter of political philosophy. Everyone had to compromise. Take the 3/5ths clause. Under a sensible and consistent political philosophy, either slaves count for representation or they do not! Each of the delegates at Philadelphia would have come up with a different Constitution had they been able to play philosopher king and did not need to get the agreement of others.

I am not asserting that the framers did not agree on anything. That is obviously false. At the very least, they agreed that their political philosophies and interests were better served by agreeing to be bound by the Constitution, rather than rejecting it. But the story of the founding generation is a story of people with profound even bitter differences in political philosophy. And the purpose of the Constitution was to accomodate these differences in a peaceful manner while enabling the United States to secure the happiness of its citizens.

(8)
In particular, the Constitution does not entrench libertarian policies. Hamilton's Report on Manufactures advocated for subsidies for manufacturing. That is, redistribution in the national interest. Your claim that redistribution is settled in the Constitution rather than a political question to be decided at the voting booth has no support and is thoroughly ridiculous and arrogant. You are basically asserting that the policies adocated by Alexander Hamilton were not only unwise, but unconstitutional. Really? Don't you think that is at least slightly absurd?

(9)
I am familiar with Randy Barnett. He is an advocate of illegitimate judicial activism. Nonetheless, even he acknowledges that the framers were not libertarians. He also blatantly admitted that he adopted his approach to interpretation based on his libertarian political preferences in the public law seminar I took at Harvard Law School that he visited as a speaker. As soon as he admitted that, my respect for him dropped by a factor of 10. He also, it seems to me, has a tendency to engage in "law office history" in order to advance his ideological perspective rather than evaluating history fairly and impassionately while letting the chips fall where they may. Name a lawsuit that Randy Barnett has participated in (not counting his time as a prosecutor or in private practice) that was not designed to advance a libertarian agenda? Frankly, I do not think his approach is legitimate, although he, unlike you, is at least fairly well-informed.

(10)
There is a limit to how civil I am inclined to be to those who make Constitutional claims based on ignorance or those who abuse our Constitution to advance their own narrow ideological agenda. I said it once, I will say it again. The Constitution is MOSTLY substantively neutral. Instead, the most important thing it does is establish a framework for political competition for those with diverse political views. You dispute this claim not based on constitutional history, but instead your own personal political philosophy.

The level of respect I have for those, like you, who purposely misuse and abuse the Constitution to advance their political agenda is much less than those who are intellectually honest and respectful of our Constitution. I will impugn your motives. Because they are clearly improper and the regime you want to impose is fundamentally illegitimate.

I did originally speak too soon. It seemed that initially you made an assertion where you were coming to an opinion on the appropriateness of the filibuster based on your political philosophy. But, that was a hasty judgment, given the limited information I had at the time. After all, perhaps with further discussion, you would clarify your intentions and meaning. But subsequent discussion with you has only confirmed what I before only suspected. You really do base your opinions on your own political preferences rather than evidence.

The following is quite evidently true. Your "reading" of the Constitution is ideologically driven and illegitimate. That sir, is both improper and quite revolting. The Constitution was intended to govern indidivuals with diverse political views according to the will of the majority, although with certain procedural and substantive protection for minorities. Do not expect me to play "nice" with you when you decide to follow a path where you illegitimately and arrogantly assert that the Constitution comprehensively entrenches your political philosophy over everyone else's.

Also, my discussions with you has revealed to me that you are simply fairly ignorant of Constitutional History. The entirety of your argument has relied on generalities and hand-waving. What level of respect should I show to your ignorance, which is quite evident to me based on your assertions?

Of what value is there in civility if I give it in equal degree to those who are disreputably ignorant and have improper motives compared to those who are both informed and intellectually honest and let the chips fall where they may? These are real and honest questions that I am in the process of contemplating.

(11)
That said, I DO prefer civility. Thus, I will tentatively apologize to you. Especially since this idea that people will be intellectually honest and informed when it comes to the Constitution may simply be too high of a standard to hold actual people to. You are not the first to read your political preferences into the Constitution, including Supreme Court justices on countless occassions and sometimes with disasterous results. If I am going to react in a disharmonious manner to everyone who does this, I will probably be acting disharmiously with a majority of people. The idea of a written Constitution has its limits, perhaps because it expects a level of intellectual rigor and honesty from people that is more rare than common.

So, you are probably right about one thing. I should be more kind to you and probably to everyone. Humans are simply flawed, including myself.

(12)
If I am kind to you, it is not because I want to "make friends and influence people," but rather because I have chosen to be compassionate to keep both your blood pressure and my blood pressure under control. I am picky about my friends. I also don't like slick salesmen. Your advice on taking a Dale Carnagie course is hereby heard and rejected.

David Welker

Chris Graves,

One last point.

Just to be clear, whether or not I am civil with you, I want to be clear that I do not view our disagreements as honest and legitimate. I think what you are advocating for is lawless and fundamentally illegitimate.

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