October 29, 2008

Mr Bojangles, dance

I wrote about it yesterday, but it certainly bears repeating: you conservaghouls need to find yourself a new token brother, one with a little bit of sizzle. Fo’shizzle, even.

Because let’s face it: trotting out “articulate” types like Uncle Tom Sowell won’t win you many fans from the Spike Lee set, who are convinced an Obama presidency is “predeortained.” Which, you know — fuck your bourgeois insistence on intelligibility in language. “Proper” (read: Whitey) word usage is anti-poetic and anti-transformative. It frustrates change. In fact, when you think about it, it’s a new form of slavery. So yeah, “predeortained.”

And don’t think we won’t be asking for reparations for all your grammar school phonics bullshit, either. Bitches.

Here’s Sowell, once again acting as the rhetorical house Negro for the Man. From “Obama and the Law”:

One of the biggest and most long-lasting “change” to expect if Barack Obama becomes President of the United States is in the kinds of federal judges he appoints. These include Supreme Court justices, as well as other federal justices all across the country, all of whom will have lifetime tenure.

Senator Obama has stated very clearly what kinds of Supreme Court justices he wants — those with “the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

Like so many things that Obama says, it may sound nice if you don’t stop and think — and chilling if you do stop and think. Do we really want judges who decide cases based on who you are, rather than on the facts and the law?

If the case involves a white man versus a black woman, should the judge decide that case differently than if both litigants are of the same race or sex?

The kind of criteria that Barack Obama promotes could have gotten three young men at Duke University sent to prison for a crime that neither they nor anybody else committed.

Didn’t we spend decades in America, and centuries in Western civilization, trying to get away from the idea that who you are determines what your legal rights are?

Yes, we did. But it turns out that the path there was paved by Enlightenment thinking, which — having served its purpose — has now been thrown over for the kind of grievance politics that depends on identity group narratives and public sympathy (something Obama envisions as a way to soften up the courts from the grass roots level and bring about “social justice” by essentially cowing Justices into adopting and empathetic, rather than a dispassionately legalistic, understanding of what it is they do).

Deconstructing Enlightenment thinking — undermining the grounds for logic or truth claims, doing away with universals by way of privileging context — have all been calculated methods toward and end game in which particular and refined group narratives are the controlling authenticity around which we must navigate in litigation and attempts at bringing about “social justice.” And whereas the law was at least grounded in concrete ratification and the social contract that demands that we, as a country, live by the rule of law, the current multicultural ethos has us massaging and finessing laws to accommodate particular identity groups who claim they have been unfairly targeted by legislation — and that it is the job of the court to look past the law to find, and rule, from an appeal to “justice” (as it is defined by each grievance group).

In short, it uses the idea of a Living Constitution to undermine the very idea that there is any set or controlling provenance for the social contract.

Good work, if you can get it.

What kind of judges are we talking about?

A classic example is federal Judge H. Lee Sarokin, who could have bankrupted a small New Jersey town because they decided to stop putting up with belligerent homeless men who kept disrupting their local public library. Judge Sarokin’s rulings threatened the town with heavy damage awards, and the town settled the case by paying $150,000 to the leading disrupter of its public library.

After Bill Clinton became president, he elevated Judge Sarokin from the district court to the Circuit Court of Appeals. Would President Barack Obama elevate him — or others like him — to the Supreme Court? Judge Sarokin certainly fits Obama’s job description for a Supreme Court justice.

A court case should not depend on who you are and who the judge is. We are supposed to be a country with “the rule of law and not of men.” Like all human beings, Americans haven’t always lived up to our ideals. But Obama is proposing the explicit repudiation of that ideal itself.

That is certainly “change,” but is it one that most Americans believe in? Or is it something that we may end up with anyway, just because too many voters cannot be bothered to look beyond rhetoric and style?

We can vote a president out of office at the next election if we don’t like him. But we can never vote out the federal judges he appoints in courts across the country, including justices of the Supreme Court.


The Constitution of the United States will not mean much if judges carry out Obama’s vision of the Constitution as “a living document”– that is, something that judges should feel free to change by “interpretation” to favor particular individuals, groups or causes.

We have already seen where that leads with the 2005 Kelo Supreme Court decision that allows local politicians to take people’s homes or businesses and transfer that property to others. Almost invariably, these are the homes of working class people and small neighborhood businesses that are confiscated under the government’s power of eminent domain. And almost invariably they are transferred to developers who will build shopping malls, hotels or other businesses that will bring in more tax revenue.

The Constitution protected private property, precisely in order to prevent such abuses of political power, leaving a small exception when property is taken for “public use,” such as the government’s building a reservoir or a highway.

But just by expanding “public use” to mean “public purpose”– which can be anything– the Supreme Court opened the floodgates.

That’s not “a living Constitution.” That’s a dying Constitution — and an Obama presidency can kill it off.

I won’t bore you with yet another sermon on the importance of what it is we think we’re doing when we interpret — and how, by changing “public use” to “public purpose,” the Kelo court wasn’t paraphrasing so much as it was rewriting the text. And in that rewriting, they created an entirely new text — one that, from an intentionalist perspective, has no claim on the original text.

Changing the meaning of the signifieds by way of paraphrasing the signified “use” substantially altered the document, making it a new document entirely — one whose meaning is diametrically opposed to the intent.

By then tethering that new text to the old text as an “interpretation,” the suggestion is that the old text has grown.

Nonsense. It has been changed. And proponents of a Living Constitution are actually proponents of rewriting the Constitution to fit their needs — and doing so without the bravery to admit to the gambit.

Unfortunately, the last nearly 30 years of “reader response” theoretics has primed the public to accept that what is taking place during these textual coups is “interpretation.” But when one “interprets” by privileging his own intent over that of the original intent of those who ratified the document, one should no longer be allowed to claim he is dealing with the same document.

Living Constitution proponents, therefore, are doing nothing less than promoting themselves into writers of the Constitution.

Don’t let their show of fidelity to the founding fathers fool you.

Posted by Jeff G. @ 11:21am

Comments (26)

  1. Mr. Goldstein … I’m scared. This man is going to hurt a lot of people.

  2. Spike Lee is just being adaptageous.

  3. Speaking from his soulnotes. Or something.

  4. Really? Spike is cool?

  5. I remember a cartoon about the Sarokin flap. Two librarians glance over at a teepee in the library. “And not only does Judge Sarokin say he can live here, the ACLU says we have to bring him breakfast and firewood.”

  6. Some people need to ponder the Declaration of Independence.

  7. Goote Mo’nin’ class.

    Let’s get on our knees for the pledge.

    “I pled jelly gents to you and I, ted, steve and erica. And 2 were public, 4 sandwich stands, animation – undergrad. Invisible Elisabeth Hurley and Justin For All.

  8. Racists. I liked Ramirez’s cartoon this morning.

  9. Penumbrae and emanations are so ’70s.

  10. That is not the Constitution I knew.

  11. “Predeortained” is natural evolution of language, but “strategery” and “misunderestimated” were crimes against humanity?

  12. 11, you have to check the letter behind the name.

    -D, you’re fine.

    -R, you’re a drooling moron.

  13. And this just in . . .

    Front page, NYT (Appeals Courts Pushed to Right by Bush Choices):

    “After a group of doctors challenged a South Dakota law forcing them to inform women that abortions ‘terminate the life of a whole, separate, unique living human being’–using exactly that language–President Bush’s appointees to the federal appeals courts took control.

    “A federal trial judge, stating that whether a fetus is human life is a matter of debgade, had blocked the state from enforcing the 2005 law . . .

    “But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule . . .[arguing] that it is objectively true that human life begins at conception and that the state can force doctors to say so.”

    Never mind the scare words (“force doctors to say so”), what a novel idea: requiring doctors to tell the truth to their patients so that they can make informed decisions.

  14. Technically, can’t the Executive Branch refuse to enforce a SCOTUS decision, or the Congress removed a case from it’s jurisdiction?

    Or is the Judicial Branch only able to be limited by Constitutional Ammendment?

  15. And don’t think we won’t be asking for reparations for all your grammar school phonics bullshit, either. Bitches.

    Does this mean I can’t ax you a question?

  16. “And proponents of a Living Constitution are actually proponents of rewriting the Constitution to fit their needs — and doing so without the bravery to admit to the gambit.”

    They might want to remember that the shoe sometimes is on the other foot. A foot that might go straight up their collectives asses.

  17. No, see, the Living Constitution only goes towards Leftist goals. If it swings towards something conservatives might want, it becomes the TRAMPLED and SHREDDED Constitution.

  18. Techie, that was what the Congress thought it had done with regard to detainees at GITMO. However, the Supremes said “We don’t care if you said these cases were not in our jurisdiction, we’re ruling anyway.” Leaves the courts without check except by impeachment.

  19. i remember the chess board/
    too many colors!
    ZEBRA-park my donkey

  20. Who needs to reinterpret the Constitution when you can just ignoriate it?

  21. Obama + three months + filibuster-proof congress.

    Bull, meet China shop.

    He doesn’t have to change a thing. Just break shit.

  22. Something that Obama should keep in mind is that government of 50%+1 only works as long as 50%-1 are willing to submit.

  23. If the Constitution is Living, it has no meaning except that imposed upon it by the courts, the power to hear case is physically and legally limited, therefore I may cheat on my taxes as much as I want.

    And under His O!ness, I will.

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