Clarence Thomas, the Universe, And Everything
I’ve been working on a post on the constitution for the last hour or so, only to have it eaten by the tumblr monster. Whenever this happens to me, I’m usually too despondent to actually try to recreate it in all its several-thousand-word glory, so instead you’ll get the truncated version. ( Ed note: This is a highly misleading opening paragraph)
Several months ago, Time editor Fareed Zakaria penned a little op-ed in which he asserted that the constitution was a little outdated and that perhaps a national dialogue on a new constitution would not be the worst thing to happen to this country. If you’d like to see how this was received, just google “Fareed Zakaria constitution” and try not to read too much before your head explodes.
I myself managed to read Zakaria’s thoughts with little more than a passing interest – although I agreed with him, I also felt that undertaking such a venture at this point in history would be far more trouble than it’s worth. We’d spend nine months arguing over moronic amendments (on balanced budgets, on defining marriage, etc) and very little would likely get done. Then we’d probably all just give up and go home.
My mind began to change when an appeals court ruled the whole “universal” part of the “universal healthcare” legislation unconstitutional. In my (entirely unlawyerly) mind, it seems as if a rational argument could be made that either (a) although the good in the legislation (America is no longer the only developed country in the world unable to provide adequate healthcare to its population) greatly outweighs the bad (a possible violation of the interstate commerce clause) and therefore the courts should let it stand or (b) perhaps the founding fathers are not the people who we should be looking to for guidance in the twenty-first century.
For example, the constitution has been amended twenty-seven times in United States history. Some of these are more-or-less procedural, ten of them (the Bill of Rights) were authored by pretty much the same people who wrote the original version and one of them just repeals another one.
However, if we are to take off our red, white and blue colored glasses for a moment, doesn’t it seem a tad strange that we practically genuflect before – not the actual judgment of – the interpretation of the judgment of men who lived over two centuries ago? Furthermore, while these men might have done a bang-up job at the time, should we still be aiming to blindly follow the lead of people who drew up a document that permitted the ownership of one human being by another human being, forbid non-property owning men and all woman from voting and permitted the sending of young people off to die in wars while forbidding them the right to participate in the electoral process that made the decision to declare said war?
This is not to say that the constitution is worthless, outdated or useless. It is to say that the idea that the constitution is the only thing standing between us and tyranny at the hands of the federal government is, to put it frankly, paranoid bullshit. Somehow the United Kingdom, arguably the nation in the world with the closest values and culture to our own, has managed quite handily without any constitution at all. This is where the key, irritating difference comes in: when the government began putting up security cameras all around the country, opponents had to come up with coherent, persuasive and reasonable arguments as to why the argued benefits (security) did not outweigh the risks (intrusion on privacy).
The opponents lost, and depending on your point of view, that is either good or bad – but at least a qualitative dialogue, however perfunctory, was had on the subject. This dialogue would have been impossible in America – the first amendment is pretty clear and even the most conservative judges would have difficulty interpreting it otherwise.
The question then becomes, how does England manage to stave off autocracy and abuse of power while Americans are busy telling each other that without the clear delineated privileges in the constitution, we’d descend into a post-apocalyptic nightmare? Either the rights guaranteed in the Bill of Rights are (or have become over time) culturally enshrined and the Bill itself is just the outward and most highly visible manifestation of those values or we use the constitution to avoid having difficult conversations in the same manner a broken couple will trade barbs over undercooked turkey.
This is the corollary to healthcare – there was no incentive for the opposition to Obamacare to try and mount a coherent, rational and nuanced rejection to the health care mandate. Instead they resorted to scare tactics, fear mongering and misdirection because in the end they knew they could always fall back on constitutionality. In this way, the constitution has become, in effect, the second-to-last refuge of the scoundrel. Why fight fairly and clearly when you know you can win on a technicality?
The further, even more byzantine aspect of this is the idea of constitutional originalism itself – the idea that through scholarly research, one can interpret the meaning behind the constitution and therefore make judgments more in line with those of the founding fathers. Once again, I am certainly not a lawyer, but I feel the need to disagree with this interpretation of law on purely philosophical grounds, for the founding fathers in no way viewed themselves as infallible (hence the provision for amendments) but furthermore, we’re talking about interpreting the intent of men who had no (written) qualms with treating black people as de jure property and women as de facto.
Furthermore, constitutional originalists tend to demonize John Marshall (Chief Justice 1801 – 1835) and what they regard as his rather cavalier and federalist interpretation of the constitution as the point where liberal America started to really get off track. Somehow, the fact that Marshall was at the Constitutional Convention and helped author the motherfucking thing seems of little importance to originalists when discussing his supposedly heretical views on what it was and was not meant to say.
To get slightly more back on track, I’d like to shoehorn Jorge Luis Borges into the discussion. Borges wrote and incredible short story/essay (as was his wont) called Kafka and His Precursors. You can read the whole thing here, but if you’re disinterested I can tell you that basically Borges rifles through history and comes up with a few examples of the intellectual precursors of Franz Kafka – a 9th century Chinese dissertation on the nature of unicorns, Zeno’s paradox and a poem by someone named Lord Dunsany.* Borges notes that although everything he cites is reminiscent of Kafka, that does not make the disparate pieces reminiscent or similar to each other – that without Kafka, no one would ever have spoken of Zeno and 9th century unicorn theologians in the same sentence. It took an entirely new context – Franz Kafka – to link a 2nd century Greek and a 9th century Chinese.
Of course, the more pertinent observation would be that without Borges, no one would have managed to read widely, closely and intensely enough to find Kafka in these wide-ranging miscellanea. Borges even admits to seeing more Kafka in Lord Dunsany than in the early writings of Kafka himself.
The Borges that I’m building towards here is Clarence Thomas and his Kafka and His Predecessors can be found in his dissenting opinion from earlier this year regarding a case that ultimately found a ban on selling violent video games to minors unconstitutional, via the New Yorker:
“A complete understanding of the founding generation’s views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England,” Thomas wrote. Following a survey of child-rearing in the eighteenth century, Thomas concluded that the “founding generation would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minors’ parents.”
Thomas has his Kafka in a method of legal interpretation that places authorial intent above anything approaching reason or lucidity. He concluded that the most relevant evidence to be taken into account on whether or not a state could forbid the sale of violent video games to children was conventional attitudes towards child-rearing in eighteenth century New England.
Because human beings tend to believe that they behave in a rational manner – and even those who declare that mankind on the whole is irrational – we have the ability to twist and turn through the most convoluted patterns of thought imaginable, make countless logical leaps and remain wholly satisfied with our conclusion. Clarence Thomas decided long ago the best way to approach American law was to divine, as accurately as possible, the will of the founding fathers. At some late date, he convinced himself that he was superior to this regard to every other human being in the country. Taken without context, either one of these assertions are not only possible, but also arguably plausible. When you take into account the context – that in 2011, Clarence Thomas is making decisions with rather important and sweeping consequences for the rest of American society based upon his interpretation of eighteenth century views on parent-child relationships – the situation becomes rather worrisome.
During their coverage of the first Republican debate, one of the anonymous commenters at The Economist said of Michelle Bachmann, “[She’s] more sure of everything than I’ve ever been of anything.” The same goes for Clarence Thomas. The man delved into historical records positive that he could divine the secret will of Thomas Jefferson and James Madison regarding the sale of Grand Theft Auto, and like Borges looking for Kafka, he found what he was searching for.
This seems to be the foreseeable future. I’d be less bearish if what I mentioned googling higher up turned up anything supportive – or just not downright hateful.
Finally, in the interest of fairness, I thought I’d give one more example of the left-wing version of this use of the constitution: Glenn Greenwald’s nigh-hysterical attacks on Obama and his Horrifying Illegal War in Libya. I’d link to one but I can’t bring myself to read them anymore, personally because I’m happy that the Libyan people were able to rid themselves of a vicious, bloodthirsty tyrant (the world’s longest-serving, actually) who retarded their economic and social growth for four decades and sincerely hope that they can make it all work out in the coming years.
Constantly reminding people (re: Americans) that the living situation could conceivably deteriorate and things could be just as bad or worse in several years is frankly, rehashing neocon bullshit. We know. You’re not the only person who was alive during the Iraq War. The speed with which those who work overtime to make sure they stick to the left of Obama on every conceivable subject accidentally embraced the rationale of decades of despicable foreign policy is supremely irritating.
But I forgot – Obama didn’t ask Congress to vote on American military involvement in time vis-à-vis legal protocol. So let’s avoid the big questions, the problematic, involving discussions on right, wrong, better and worse and hide behind technicalities in the law.
*Back before Wikipedia was so expansive to have lengthy on entries on people such as Lord Dunsany, such as five or six years ago when I came across this story in a lit. course, someone could ask a professor, “Who the shit is Lord Dunsany?” and said professor could reply, “I have no idea and its entirely possible Borges just made him up.” Ah, the good old days.
