September
2nd 2009
Posted under Conservatism & Judicial Activism & Political Philosophy
Wow! Austin Bramwell has in no uncertain terms taken issue with Kevin Gutzman on the Constitution. This is a rather brash denunciation. Bramwell seems to revel in being brash. I disagree with his take and am working on an article length reply. Until then chew on this amongst yourselves.
Dostoevsky on 02 Sep 2009 at 8:53 pm #
I found it an interesting article as well. It’s not too big a deal to me — I’m inclined to think that the intent of the Framers has been strangled, regardless of whatever it actually was, and in any event legal theory is not really a discipline I have much business weighing in on — but I must say I found his argument persuasive.
Patrick Deneen at Front Porch Republic makes what is, I think, a similar argument, albeit more scholarly and not brash:
http://www.frontporchrepublic.com/?p=5492
This is a notion which has been growing in steam; I think Bill Kaufmann is a big proponent of it, the idea that getting rid of the Articles of Confederation was actually the first big mistake.
ISI is having a debate on the topic “Resolved: The Anti-Federalists Were Right” this next week in Colorado.
It’s Kauffman pitted against a poli-sci professor from University of Louisville. I hope there’ll be video, it should be a treat.
DanPhillips on 03 Sep 2009 at 1:23 pm #
There are a couple of issues here that shouldn’t be confused. As an anti-Federalist, I agree we should have stuck with the Articles of Confederation. Gutzman may or may not agree with that. Once enacted, I think we all should agree that the Constitution has failed miserably at actually restraining the government. I think Gutzman would agree with that. But the question is, did the Founder’s intend the “enumerated powers doctrine” or not. Gutzman says emphatically yes. Bramwell says no. I think history is on the side of Gutzman. But worse, Bramwell argues that their original intent doesn’t even matter. This seems to me to abandon any pretense of conservatism.
To make the case that the Founders didn’t intend a government limited to certain enumerated powers you really have to suggest that they were being intentionally deceptive. This isn’t out of the question, but if that is what you believe you should say that. Not leave the impression that the consensus openly intended an unlimited cent gov. (Some arguably did, but they lost the debate. That is not the document that emerged and was ratified by the States.)
S.L. Toddard on 03 Sep 2009 at 3:07 pm #
What is the verdict here on Bramwell’s argument? Does the 14th render all arguments about the Constitutionality of gov’t actions (for instance, whether the federal gov’t is delegated the power to construct a gov’t healthcare system) moot? Is Dr Phillips in the house?
DanPhillips on 03 Sep 2009 at 5:18 pm #
My full length article will address this question. I do not concede the legitimacy of the 14th Amendment because it was passed under duress and under questionable circumstances besides. But even if you grant its legitimacy, the incorporation doctrine was not the intent and was a later development. You cannot get past the argument put forth by the Southern Senators in response to Brown vs. Board. The same Congress that passed the 14th Amendment also segregated the DC school system. So the Amendment cannot possibly mean all the things that have been done in its name.
S.L. Toddard on 03 Sep 2009 at 10:17 pm #
Thank you, Mr. Phillips. And let’s leave aside whether the 14th is legitimate – I am entirely with you on that point. Apart from incorporation, how does one refute the argument that the language of the 14th Amendment, being so vague, effectively delegates to Congress the power to regulate just about anything?
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
Is it not the case, as he asserted, that pursuant to this clause “Congress might prohibit the States from discriminating on the basis of race. It might also prevent the States from denying access to free health care, or refusing to advance the progress of minority groups by affirmative action. So long as Congress deems a policy to be a fundamental right, it can force the States to uphold it”? Does it not give Congress carte blanche to “correct” any priveleges they allege to be “abridged” via legislation? To go further than Bramwell, if Congress deems that a State’s laws, as they stand, are insufficiently conducive to the goals of Affirmitive Action and contribute to discrimination against certain groups, does this not give them the power to correct that alleged “abridgement” of priveleges (however wrongheaded their diagnosis)?
Also, I am altogether baffled by his insistence that “the intentions behind an enactment are irrelevant to its meaning”. He blithely disregards the very bedrock of Originalist constitutional philosophy as though it’s some ridiculous, fringe notion he’s never come across before.
Rob on 12 Sep 2009 at 7:04 pm #
One cannot interpret literally a phrase that was loosely worded to begin with. Bramwell is right to suggest that many court interpretations of the constitution are perfectly reasonable in that respect.
The original intent of the authors is a reasonable and perhaps even a necessary aid to understanding the document. Many legal phrases have a very long tradition as to their meaning. As with any written document a word means what it means according to its usage.
Passage of the fourteenth amendment was probably as proper as the process involved in passage of the constitution itself. The passage of the constitution was, in fact, a constitutional breach just as the rebellion against King George was a constitutional breach. Indeed, the constitution had broken down far more at the time of the fourteenth amendment that it had under the Articles.
The Incorporation Doctrine is a reasonable interpretation of the fourteenth amendment which doesn’t necessarily concede, however, that all interpretations of the fourteenth amendment are reasonable.
The “constitution” of the US is as much an unwritten document as the constitution of England is unwritten. The written constitution is only one part of our actual constitution. Tradition and legal precedent are needed to interpret the written constitution. A reliance on the text only could actually produce a far more expansive interpretation than is allowed by an adherence to past procedures and understandings.
A proper understanding of the constitution is probably somewhere in between Bramwell and Gutzman.
T. Chan on 17 Sep 2009 at 6:33 pm #
Bramwell has a <a href="http://www.takimag.com/article/best_of_intentions/"response to Gutzman. I don’t think I’m the only one waiting for the article by Mr. Phillips.
T. Chan on 17 Sep 2009 at 6:34 pm #
Fixed the first link —
Bramwell has a response to Gutzman.