Saturday, March 14, 2009

Lies About History & The History Of Lies

The WSJ has an interesting essay of "progressive originalism," 
So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. The 13th, 14th and 15th amendments radically altered the structure of American federalism, elevating federal power over that of the states, and giving individual rights pre-eminence.
The short and medium term goal of going back to the original intent of the Civil War amendments is to revive the lost power of the 14th Amendment. Its framers had intended the "Privileges & Immunities" Clause to serve as a sort of protection of fundamental rights against . But, the "Slaughterhouse Cases" in the 1870's (unknown today, but notorious in the legal community) interpreted away the potency of the P&I clause, making it a dead letter, and paving the way for "Plessey v Fergesun," Jim Crow, and 90 years of segregation. 

At this point I always think it's very important to note that Republicans were the sole reason the Civil War amendments were passed. Moreover, the only reason the amendments were deemed necessary was the behavior of recalcitrant Democrats in the post-war South, who gave every indication - by doing things like founding the KKK and terrorizing freed blacks - that they had no intention of treating former slaves as equal citizens. And, it was Democrat dominated Supreme Courts that interpreted the Civil War amendments in an overly narrow manner. Thanks a bunch, guys. 

I think it's also necessary to point out that the linked article assiduously goes to great lengths to avoid mentioning the above. 

The real outrage, however, comes from a constitutional "scholar," who lets loose with this cute bit of revisionism: 
Viewed through the Reconstruction prism, the "Constitution turns out to be way more liberal than conservative," says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. "The framers of the 14th Amendment were radical redistributionists. The 13th Amendment frees the slaves and there's no compensation," he says. "It's the biggest redistribution of property in history."
That is wrong wrong wrong wrong wrong. 

First of all, does Amar actually believe that Southern slaveholders should have been compensated for their lost "property" i.e. their freed slaves? Does he really think that? Or, is he trying to get credit for the concept of "redistribution" that it doesn't deserve. After all, the post-war Republicans did not see themselves as redistributing wealth. They were freeing humans from bondage and trying to secure equal rights for all!

Second, there were no "slaves" at the time the Civil War amendments were passed. They had already been freed by executive order (the Emancipation Proclamation, for heaven sake), by the US Army, and by statute. The Civil War amendments were passed after it quickly became clear that stiff necked ex-confederates would not allow southern blacks to live freely and peacefully. 

finally, it is of course left unstated what sort of "rights" this sort of legal & historical dodge is supposed to secure. Certainly, the right to privacy would be better secured under P&I, rather than the Due Process Clause (even proponents of the right to privacy admit it is built on constitutional sand). But, more important is the long-term progressive goal of making the entitlements of the welfare state into constitutional rights, rather than matters of statute. FDR's "second bill of rights" can give you an idea of what they are after:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education

So, do you really think the post-war Republicans who framed the 14th amendment were trying to make sure "every farmer (even Archer Daniels Midland?)" could "raise and sell his products" to earn a "decent living?" Or were trying to secure "the right of every family to a decent home?" and that such rights would be constitutional rights as inalienable as the right to vote or the right to free speech? Doubtful, very doubtful. 

Progressive originalism is yet another legal Trojan Horse from the legal Left. That a person like Amar obviously feels comfortable making historically spurious statements like the above shows the extent to which he would bend history, facts, and the law to achieve his dubious ends. 

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