The Constitution and the Magna Carta

[unixronin]

cipherpunk discusses the differences between the two, and how the government has turned a short and strictly enumerated list of only seventeen things it is allowed by the Constitution to do, all other things being forbidden to it, into "We can do whatever we want".

Comments

[smandal.livejournal.com]

Thanks, and commented there (http://cipherpunk.livejournal.com/262592.html?thread=1088704#t1088704).

[randwolf.livejournal.com]

Of course, a major part of the reason for the restrictions was to protect slavery in the South.

[cipherpunk.livejournal.com]

Unlikely. Good arguments are set forth in the Federalist Papers for a government of narrow and strictly enumerated powers. Even in the absence of slavery, the Federalist’s arguments would still be sound.

[randwolf.livejournal.com]

Why unlikely? The constitution was written to be acceptable to the slave states, and the arguments made in its defense were in part rationalizations of this. The Federalist Papers were after all making a political case for the constitution! In the absence of slavery, and the need to reassure the Southern landholders who made up the governments of the slave states, a different constitution would have been written and different arguments would have been made. The Southern states even got several explicit constitutional guarantees (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/thirteenthamendment.html).

There's a lot more could be said on this, but I haven't the time to research it beyond this. There's been a recent book (http://www.suntimes.com/entertainment/books/1694975,SHO-Books-wald02.article) on the subject, and in a few weeks I may see it & have a bit more to say about the matter. Political science is not a subject like mathematics, where one can, for instance, trust that the Pythagorean Theorem is still a reliable statement, thousands of years after its formulation. The Federalist Papers were political position papers, and, however great, still can only be fairly read in the context of their times.

[cipherpunk.livejournal.com]

Unlikely, because even when those arguments are read from the perspective of someone rabidly opposed to slavery (as I am, as I trust you are), those arguments still make sense. Those arguments may have been presented to help solidify support in the slaveowning states, but to explicitly tie those arguments to slavery is overreaching.

[randwolf.livejournal.com]

It's not that the arguments are tied to slavery. Rather, their applicability is not universal; applied rather than pure political science, as it were. The arguments were chosen to defend the proposed Constitution. To know the theories of government of the day, it is necessary to read what the Framers were reading. I think you are treating the arguments of the Federalists as pure political science, and drawing dubious conclusions because of it.

Historically, opposition to Federal power has often come from a desire to prevent Federal legislation against egregious corruption. The defense of slavery as "states rights" is the archetypal example, but consider also the arguments against anti-lynching (hate crimes) laws. In the time of the Framers, government authority at the state level was extensive. None of the Federalists were modern libertarians, opposed to government power on theoretical grounds; that was the position of the anti-federalists. Pre-civil-war, state governments were allowed extensive powers; the Federal Bill of Rights was not applied to the states, and state governments could support religions, regulate business as they saw fit, and so on. Post-civil-war, the political consensus was that the Federal government was to be granted more power, and that's where matters have stood since.

[copy-editing error corrected.]

[cipherpunk.livejournal.com]

I think you're committing a category error here: ascribing to something properties which it, a priori, cannot possess.

If someone tells me the sky is blue, then it doesn't matter what their context is, or what their agenda might be, or why they're saying it. The sky is either blue or it is not. Their decision to speak might be motivated by selfish concerns, but the proposition "the sky is blue" possesses only one property, true or false: everything else is our projection onto it.

If someone tells me a government of limited powers is a good idea for the following reasons ..., then the only property of that argument is whether the argument by itself is sound.

If a white supremacist were to argue passionately in favor of the First Amendment, would that mean the First Amendment was suspect simply because the person advocating it had an agenda? Absolutely not -- absurd even to suggest it. Likewise, when Southern slave advocates argued passionately in favor of a government of limited powers, that doesn't mean the principle is suspect just because they were villains.

[randwolf.livejournal.com]

And what if you are color-blind? One can of course find a less slippery topic than color perception as a base for discussions of epistemology. One could discuss the spectra of radiation rather than color. But that is my point. Truths in politics are affected by perception.

With political arguments, one may reasonably ask whether or not the person cherry-picked their arguments and facts because they had an agenda. With the Federalist Papers, we need not ask--we know. They were part of a political debate. Does that mean the arguments were invalid? Perhaps not. But the assumptions of the arguments are questionable. They were deceptive even in their own time. It is hard for me, studying this with 200+ years of hindsight, to understand why so many concessions were made to the slave states. Was it necessary to have a union at all, if it was to include slavery? But of course Washington and Jefferson were both slave-holders, though Washington freed his slaves upon his death. (Jefferson died bankrupt and his heirs sold his slaves so that they could keep his estate.)

One may also ask if the theories passed the test of workability. Designs for political systems are like any other sort of designs: they can fail. In the long run, they always do, as changing times invalidate them. The co-existence of slave and free states in the Union was a failure. It failed for many reasons, but one I find most interesting is that the slave-holders kept wanting more and more power and more and more control over the Federal government. It wasn't enough that they had extra votes in the House, and the ability to block legislation in the Senate. They wanted more, wanted non-slave states to defend slavery. And, in the Dred Scott decision, they got that. Finally, they over-reached, and started the war that destroyed their system. So the theory of limited Federal government failed when faced with the realities of power and, especially, the overweening ambition of a ruling class. So I say that the false beliefs at the root of the system destroyed it. I don't think the situation is so very different today. It is not hard for me to see the concessions to the big financial firms made in the past 30 years as similar to the concessions to slaveholders. Modern medicine is a completely new problem. And, now as then, it seems to me that the theory of limited Federal government has failed, leading to horrors.

[cipherpunk.livejournal.com]

ean–Luc Godard said the way to criticize a film was to make another film. If you want to criticize the arguments made by the Framers for limited government, then you need to put forward arguments of your own instead of casting vague aspersions about how they were not driven by angelic motives. (Of course they weren't. They were politicians.)

I have no patience for the modern idea of literary deconstruction, which is what it seems you're attempting to do here. So, sorry: no, I don't agree, and you're going to need to do better to have me take your thesis seriously.

[randwolf.livejournal.com]

My word. I thought I was just criticizing political theory based on historical outcomes. I don't know enough modern literary criticism and philosophy to know if what I have written would qualify as "deconstruction." I thought that explaining that:
1. The "limited Federal government" model was adopted in part to protect the institution of slavery in slave states.
2. It did so successfully, but the slaveholders over-reached, which,
3. Led to a civil war.
is an argument against the "limited Federal government" model. As an added filip, it seems that in subsequent US history the pattern of a privileged elite over-reaching has been repeated, and "limited government" is one of the arguments such groups invariably make, both to allow their abuses and then to prevent their correction--most recently in the global financial disaster.

In any event, it's been an interesting discussion. Thanks!

[unixronin.livejournal.com]

You make it sound as though the enumerated-powers section caused the civil war. I find your apparent post hoc, ergo propter hoc reasoning indefensible.

[randwolf.livejournal.com]

Rather I'm arguing the the converse. I would say the political leadership of the slaveholders "caused" the war, as much as it is possible to speak of a single cause. The weak Federal government, heavily influenced by the slaveholders, could not control the slaveholder faction and the states they dominated. And some of the main reasons the Federal government was weak, and favorable to the slaveholders, were concessions made to the slaveholders. Viewed in that way, there is nothing post hoc--this is all plain in the history, unless I greatly misunderstand it.

The whole history seems to me a compelling argument for either no Union between North and South in the first place, or a stronger Union. Historically, of course, the conflict was violently resolved in favor of a stronger Union. The stronger Union does not seem to be more oppressive than its former weaker form, nor did it abandon the concept of human rights, the constitution, or the rule of law. I simply don't see the history that makes the argument for a weaker Federal government valid.

[unixronin.livejournal.com]

I simply don't see the history that makes the argument for a weaker Federal government valid.

And that's precisely the problem.

In the words of Gerald R. Ford (yes, that Gerald R. Ford; he was President at the time), "If government is big enough to give you everything you want, it is big enough to take away everything you have." What he didn't mention was that not only is a government that is big enough to take away everything you have not necessarily big enough to also give you everything you want, but it doesn't necessarily even have any pressing motivation to do so.

[randwolf.livejournal.com]

"I dreamt I dwelt in marble halls,/ And woke to find it true;/ I wasn't born for an age like this;/ Was Smith? Was Jones? Were you?"--Orwell, "A Happy Vicar I Might Have Been"

Barry Goldwater, it's said, was fond of repeating that remark of Ford's, in the 1964 campaign during which, yes, he invented the Southern Strategy. At that time, the South was very much resentful of Johnson's laws which ended institutionalized racism. Open racism was no longer nationally acceptable, so they talked about small government and states rights. So the story of the slaveholders continued at that time, and continues to this day.

I would prefer much less large-scale power in our lives. Yet I don't see how we can hope to retain any personal freedoms without a powerful democratic government. Without that government, "we the people" stand no chance at all against the big corporations and the various foreign tyrannies. At least with the US Federal government I get a vote and the benefit of democratic traditions, even if those traditions could be stronger and my vote only makes much difference in one house of Congress.

[randwolf.livejournal.com]

As a very late thought on this: it occurs to me it is the banks and financial firms, with the connivance of the government, that have "taken it all away" for many people. Strikingly, "minimal government" arguments were used to justify this.

The regulation of commerce is one of the oldest functions of government. It seems that abandoning it, or corrupting it, is one way the government can take it all away.

[unixronin.livejournal.com]

Even granted that there were recognitions in the drafting of the Constitution of demands necessary for ratification of the Constitution by the South, I fail to see what this has to do with the enumeration of powers.

[randwolf.livejournal.com]

The limited powers of the Federal government was part of what made the deal acceptable to the South. The limits even, weren't enough to satisfy the Southern delgations and specific concessions were written into the document as well--they even gave the South extra seats in the House for the non-voting slaves. The sense of entitlement of aristocrats, apparently, was hard at work.

[unixronin.livejournal.com]

Considering that the Constitution was drafted between 1778 and 1789, LONG before any political issues surrounding slavery were so much as a distant could ... er ... cloud upon the horizon, and at a time when slavery was also considered quite reasonable in the North, and when most of the Deep South states didn't in fact even EXIST yet, I'd really like to hear how you arrive at that conclusion.

[randwolf.livejournal.com]

Slavery was very much a live issue and subject of controversy at the time. See, for instance, the quotes here (http://www.usconstitution.net/consttop_slav.html#const). See also my reply to cipherpunk above. & I need to be getting on with my day. Good day!

[databeast.livejournal.com]

/me *whistles innocently*

Y'all should keep an eye out for the UPS man tomorrow... just sayin' :-P