Saturday, May 19, 2012

What's Wrong With This Sentence? (and everything else)

Attention all grammarians, armchair shrinks, and nitpickers. This was the last sentence in an article by Helene Cooper in today's New York Times:
“As the wealthiest nation on earth, I believe the U.S. has a moral obligation to lead the fight against hunger and nutrition and to partner with others,” Mr. Obama said Friday morning in remarks in Washington.
a) The professorial prez has used a dangling modifier. President Obama inadvertently refers to himself as the wealthiest nation on earth. He should have said: "As the wealthiest nation on earth, the U.S. has a moral obligation...."  I,yi yi, yi yi! (I just never got over my eighth grade sentence-diagramming days in Catholic school.)

b) He said we have a moral obligation to lead the fight against hunger and nutrition. Does this guy like to always have it both ways, or what? If I were a Freudian, I would call this a slip. Our president satiates our hunger with his populist speeches, yet fails to follow through on actual policies that would nourish the body politic. He calls Jamie Dimon the greatest banker of all time at the same time he says we need to rein Jamie Dimon in. He brags about the Volcker Rule now, even though his team of banker enablers has been working to delay it until 2014 or later. 

 We are all, of course, keeping a close watch on the happenings in the Chicago Police State, where the paramilitary thugs have already pre-emptively arrested some demonstrators in front of Obama's campaign HQ and elsewhere, and even charged a group of OWS protesters with being terrorist threats. I think that after this week, the meaning of NATO might be changed to "New Austerians Tase (Terrorize? Torture? Threaten>) Occupy". Most of the international bellicose bubbleheads gathering for the power elite confab are calling for the hoi polloi  to share the sacrifice. But somehow, money is never an object when it comes to perpetuating the military-industrial complex. Except for Francois Hollande, who is still too much of a newbie to have been co-opted, the NATO apparatchiks and their guests are there to celebrate the hegemony.

Meanwhile, the judge who just declared the indefinite detention clause of the NDAA unconstitutional wisely listened to Chris Hedges and his co-plaintiffs, who'd asserted the intentionally vague law was having a chilling effect on their writing and their activism. Would merely having a conversation with someone the administration arbitrarily calls a terrorist make the interviewer also a terrorist in the government's eyes, and thus subject to detention without trial? Since the government left that question dangling by refusing even to answer, the judge ruled in favor of the plaintiffs. That, of course, did not prevent the House from voting for indefinite detention yesterday. And not only that, the phony deficit hawks also proved their austerity rhetoric a sham once again by approving expenditures for useless military hardware and the construction of a massive East Coast anti-missile system. This, from GOP pod-people like Eric Cantor and John Boehner, who keep insisting the debt is destroying the country.

President Obama has threatened to veto the bill, not so much because of the money or the indefinite detention clause (which he is totally for, as the wealthiest nation on earth) -- but because of the clause banning same-sex marriages on military property. Far from being concerned about the death of due process and free speech and assembly, the White House worries that the anti-gay clause might be illegal:
 The defense budget would also prohibit same sex marriage ceremonies on any military installation. The White House described the provision as a “troublesome and potentially unconstitutional limitation.”
And it might really get sticky if two gay Occupiers want to get married at West Point and have as their witnesses journalists who once interviewed suspected Yemeni militants. But as an obscure blogger, this scenario may probably never cross the president's mind. Like that clumsy sentence and the one at the top of this post, vague statutes are deliberately kind of left dangling, open to whatever interpretation any future leaders care to give them. In the meantime, Obama can indeed get away with claiming "L'√©tat -- c'est moi."


Denis Neville said...

Obama is the Emperor, and is above grammar.

He is an emperor with no clothes, an empty suit, who speaks of moral obligations…yet, as always, “fails to follow through on actual policies that would nourish the body politic.”

Neil, in a previous post, told us about the tragedy of Connecticut mother-daughter murder-suicide.

We do live in Dickensian times.

“I thought it very touching to see these two women, coarse and shabby and beaten, so united; to see what they could be to one another; to see how they felt for one another, how the heart of each to each was softened by the hard trials of their lives. I think the best side of such people is almost hidden from us. What the poor are to the poor is little known, excepting to themselves and God.” - Charles Dickens, Bleak House

Simon Schama writes, “the cruelties and iniquities Dickens devoted himself to savaging with unsparing antic fury are still with us today, and not embalmed behind some vitrine of Victoriana. The suffering of the destitute still shames our complacency.”

Schama asks, “How many of us read him? Most urgently, do our children read him?...We make much of the collapse of English into the squawk of the tweet and the text. To read Dickens, now more than ever, is to experience its opposite: to be caught up in an abundant tumble of words - and in language juicy with the flux of life. Sometimes it’s used to drag us to places we would rather not go…Though politicians might denounce Dickens’s humane pathos as socialist, in truth he had no program for altering the atrocities of his time beyond a passionate craving for decency. Out of that simple instinct he made imperishable masterpieces.”

“The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.” - Franklin D. Roosevelt

Instead, we wield axes that chop domestic programs that help the poor, creating a new class of untouchables.

“Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well- warmed, and well-fed.” - Herman Melville

Valerie said...

I can feel the waves of despair washing over me! I am so worried about those poor protesters arrested as terror suspects! I am sure the militarised police are just waiting to see if there is a huge public outcry about this. Let's hope there is! And I am completely disgusted with those in the House who voted in favour of indefinite detention. It sure feels like "game over!" if the Occupyers start getting arrested as terrorists.

I suppose, as Chris Hedges pointed out, the Black Block is actually helping make the militarised police acceptable to the disinterested public at large. I remember reading commenter somewhere who was in DC at the XL Pipeline protest. He said he spoke to a policeman about some scary looking people in hoods further back in the protest and suggested they might be up to mischief - and the police completely ignored him. The commenter noted that it was if the police WANTED someone to act up as opposed to peacefully protest.

Anne Lavoie said...

Obama does indeed believe that 'l'etat c'est moi'. Recall that just recently he stated that the troops were fighting on HIS behalf. In his mind, there is no difference.

So if the Chicago dissidents are alleged terrorists, I guess anyone who associates with them can be indefinitely detained now also, which is exactly what the legislation was crafted for.

I wonder these days what would have happened to the big protest that was scheduled for last October in Washington DC if Occupy Wall Street didn't steal the thunder early and move the action from the relatively tolerant and protest-friendly Washington DC area to the very restrictive, police state environment of NYC.

It strikes me as being very fortunate for the legislators and Obama that the Canadian AdBusters put out that slick advertising campaign with the ballerina on the bull to promote preemption of the DC action with their own. There is so much space in DC to gather in great numbers for long periods of time, but the October protest essentially fizzled due to OWS' September action. Couldn't AdBusters have advertised the October DC protest instead of creating their own? A power grab of sorts happened.

I thought it then, and I still think it now, that the real enemies and traitors are sitting in Washington DC, and I don't mean the corporate lobbyists. The elected legislators pass these bills, give the tax breaks, remove our Constitutional protections, etc. despite taking an oath of office. Corporations don't take oaths.

I think the focus needs to be placed squarely in Washington DC where it was originally planned to be last October. There have been a lot of power plays and it feels like we have been outplayed for the most part. We really need some generals on our side.

Kat said...

Also, why would you fight against "nutrition"?

Kat said...

Ignore my previous post! I read what you wrote again. Didn't catch it the first time.

Kat said...

That article from the Tribune is sickening.

Valerie said...


Those of us who appreciate the Liberal Arts don't think it is a mistake that English Literature and History have been so cut out of high school curriculums. If they hadn't been, students might connect the dots and realise that history is repeating itself before their very eyes.

Karen Garcia said...

Off-topic, but since I wrote earlier today about Catholic School sentence-diagramming, I went on a little trip down memory lane,(probably an early sign of senility) and then wouldn't you know -- Maureen Dowd came up with another Catholic column. My comment:

As the product of a mixed marriage (non-practicing Baptist father, staunch Catholic mother), my schizo religious upbringing had its ups and downs. One of the ups was that I got another side to the story, even as I spent my childhood in a whirlwind of confession, communion, and holy days of obligation.

While I learned my catechism by fearful rote, and was taught that Catholicism is the “one true faith" I began to question the morality of a religion whose God barred non-Catholics like my Dad from Heaven.

When I questioned my Dad about this, he defined the word “catholic”-- which as Maureen also points out, means all-encompassing and universal. So I got my first lesson in irony at 7, which the Church ironically calls "the age of reason".

Meanwhile, throughout my parochial school years, I was constantly being urged to pray for my Dad's conversion, lest he be doomed to limbo or worse. It slowly began to dawn on me that religion was pretty much an abusive crock.

The Church has been going after heretics since Day One, or whenever it was that a group of autocratic control freaks got together and decided to co-opt the life of a radical humanist, perverting it into an empire riding roughshod over both rulers and hoi polloi. The dwindling faithful (and a few pandering politicians) are still there for the Churchmen to exploit. But global awakenings and the outing of their own psychopathy have them flummoxed. So -- long live heresy and dissent!

Unknown said...

Love all your comments, especially the ones you regularly post in the NY Times. Keep it up! You should be published in a regular column!

domina said...

Thanks you for your insightful comments, especially these that you post in the NY Times. I look forward to reading them! You should be published!

4Runner said...

As a Catholic school student and altar boy, I learned long ago how to keep my modifier from dangling. Beyond that, your comment on Maureen today was especially timely. My son emailed that he is regrouping his old punk rock band and asked me to suggest some names. So, with thanks, here are a few I'm copping for him directly from your post:

Autocratic Control Freaks
Fearful Rote
An Abusive Crock
The Churchmen
Them Flummoxed
Long Live Heresy

BTW, if you were ever a fan of New Order, YouTube has a fairly good live version of "True Faith" taken from Top of the Pops 1987.

Valerie said...

Interesting point, Anne. I have read that Occupy went after the right people - the financiers - but I have always said the politicians are equally to blame. They have whored themselves out.

But I always wondered the same thing you voiced. The Washington March - October 2011 - was well pulbicized so it isn't as if Adbusters didn't know about it. Maybe their intention was to just distract from the REAL march in Washington and the Occupy Movement took on a life of its own. Something to wonder about for sure.

Denis Neville said...

My little trip down memory lane…I only went to Catholic School for one year (fourth grade), after my mother (bless her heart) finally relented (which she regretted for the rest of her life) to my staunch Irish Catholic father’s dying wish that I be properly instructed in “The Faith.” There were 48 kids in my class.

Catholic School sentence-diagramming? My nun didn’t have time for English. Her total concentration was on the catechism (the only book I ever learned to totally despise). Like you, I learned my catechism by fearful rote…the Catholic Church was the one true faith; Catholic (heart shaped) souls were pure white, and all other lost souls (non-Catholics) were dark black; no association with people who were not Catholics (my mother was severely chastised by the priest for allowing our neighbors, an Episcopal minister and his wife, to care for me while my parents were at the Mayo Clinic; she told the priest to go to hell!), but told to pray for their damned souls; descriptions of hell (much like Father Arnall’s long description of the Catholic conception of Hell in James Joyce's A Portrait of the Artist as a Young Man), etc.. And when I had memory lapses, as my mind tended to wander off the gloomy subject, her ruler smacks to my hands were a quick reality check.

The experience was much like Frank McCourt description in Angela’s Ashes: “He tells us we have to know the catechism backwards, forwards and sideways. We have to know the Ten Commandments, the Seven Deadly Virtues, Divine and Moral, the Seven Sacraments, the Seven Deadly Sins. We have to know by heart all the prayers, the Hail Mary, the Our Father, the Confiteor, the Apostles’ Creed, the Act of Contrition, the Litany of the Blessed Virgin Mary. . . . He tells us we’re hopeless, the worst class he ever had for First Communion but as sure as God made little apples he’ll make Catholics of us, he’ll beat the idler out of us and Sanctifying Grace into us.”

In this way, and others, I, too, learned at a young age that religion was an abusive crock.

Charlie said...

A line from Robert Caro's great book "The Years of Lyndon Johnson: The Passage of Power comes to mind.

When one of LBJ's advisers told him that a President shouldn't spend his time and power on lost causes,no matter how worthy those causes might be, Johnson replied, "Well, what the hell's the Presidency for?"

This is the question we should all be asking President Obama.

Charlie said...

I wanted to get a couple of comments on the Dowd article also but comments were closed by 7:30 a.m.

So, I'll vent here.

Let's make the assumption that Ms. Dowd is familiar with the theory of evolution. Therefore she knows Adam and Eve were non-existent. I'll let Richard Dawkins take it from here.

"Adam never existed. The story was symbolic. Symbolic? Symbolic! In order to impress himself, god had himself tortured and executed in vicarious punishment for a symbolic sin, committed by a non-existent individual. Mad! Barking mad!"

Which leads to another quote by Sam Harris.

"Religion allows people by the billions to believe things that only lunatics could believe on their own."

Denis Neville said...

@ Neil – re: “The Founding Fathers knew what they were doing, but that was not necessarily a good thing. The U.S. Constitution was designed from the start to empower the one percent of its time, land-owning white men.”

“No single fault has been the source of so much bad history as the reading back of later and sharper distinctions into earlier periods where they have no place.” – Charles Howard McIwain, The American Revolution: A Constitutional Interpretation

The original intent of the Founding Fathers isn’t that easy to ascertain. The Constitution is an extraordinary document. However, it is only a document. It did not hold the nation to ideals that it was determined to betray. Its checks and balances were dependent upon the same checks and balances within American society. The Constitution lives only if it embodies the spirit of the American people.

“There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves, and lose their roughness and spirit of defiance. Tyranny may always enter – there is no charm, no bar against it – the only bar against it is a large resolute breed of men.” – Walt Whitman,

“The Constitution was intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” –Chief Justice Marshall, McCulloch v. Maryland

Neil Gillespie said...

Hi Denis, thanks for your response. I take from your comments you do not support the concept of originalism. As for the Marshall quote, it appears at odds with Jefferson insofar as the U.S. Constitution is so difficult to change, or "consequently, to be adapted to the various crises of human affairs". Jefferson in his 1789 letter to James Madison said that every constitution "naturally expires at the end of 19 years" because "the earth belongs always to the living generation.""

Of course, Jefferson had his own contradictions on issues of freedom and slavery.

"Jefferson's views on slavery were complex. As a young man, he opposed slavery, thought it was contrary to the laws of nature, and added an anti-slavery clause in the original draft of the Declaration of Independence. He was a leading American opponent of the international slave trade, and, as President, signed the Act Prohibiting Importation of Slaves on March 2, 1807. However, Jefferson shared the common view of his times that Africans were racially inferior. As part of the Virginia planter elite, and as a tobacco planter, he owned hundreds of slaves throughout his lifetime, and did little to end domestic slavery after 1789."

The operative words - "Virginia planter elite" - a.k.a. the one percent. Then there was the issue of his slave Sally Hemings, and whether Jefferson was the father of her children.

"The historical question of whether Jefferson was the father of her children has been known as the Jefferson-Hemings controversy. Following renewed historic analysis and a 1998 DNA study that found a match between the Jefferson male line and a descendant of her last son, Eston Hemings, a consensus among historians supports that the widower Jefferson fathered her son Eston Hemings and likely all her children. Some historians disagree."

There is an update to report on the challenge to the Voting Rights Act of 1965, a notice of a decision Friday was stuck in my spam filter until today.

"D.C. Circuit Upholds Key Section of Voting Rights Act. A divided federal appellate panel today upheld the constitutionality of the heart of the Voting Rights Act in a decision setting the stage for an eventual U.S. Supreme Court battle."

One problem with a document as old as the Constitution is the nibbling at the edges by lawyers, judges, and legislators over hundreds of years that has effectively shaped the Constitution to serve special interests, not the people. Under our system of laws, the U.S. Constitution does not stand alone, it is interpreted by case law, rules, regulations and statutes.

As an old friend of mine used to say, and I’m paraphrasing him, "The big print gives you rights, and the small print takes those rights away."

Zee said...


Regarding the previous thread:

When Sanford Levinson speaks, I must listen. After all, his 1989 Yale Law Journal article entitled The Embarrassing Second Amendment marked the start of modern scholarly study of the Second Amendment. I have yet to read his new book, and have only listened to part of the video to which you provided the link. Still, I think I understand the gist of things.

I think that I am inclined to agree with Prof. Levinson—and you—that the Constitution could use some updating. And, perhaps the reason that the U.S. Constitution has been amended so few times compared to state constitutions may well be an “over-veneration” of the document.

Still, the Founding Fathers did provide two mechanisms whereby the Constitution can be changed. Clearly, the Founding Fathers did not see the document as perfect and immutable back in 1789, so why should we?

(And, as an aside, if they allowed for change, was their purpose entirely to keep the 1% in power as you state? I think not. Otherwise, the document would have been carved in stone and anyone who dared to suggest changes would have been hanged as an enemy of the state.)

If the process is cumbersome, well, I think that the Founding Fathers rightly made it so. Having come so far and having paid so high a price to achieve the likelihood of ratification, why would they have made it easy to change?

But amended it has been, seventeen times since ratification (not counting the first ten amendments that comprise the Bill of Rights). And of those amendments that were successful, here are the number of days it took from Congressional approval to ratification by the states:

#11: 340
#12: 189
#13: 309
#14: 753
#15: 342
#16: 1,302
#17: 370
#18: 344
#19: 441
#20: 327
#21: 288
#22: 1,439
#23: 285
#24: 514
#25: 584
#26: 100
#27: 74,003

If one overlooks the anomalous 27th Amendment, on average the remaining sixteen amendments took 495 days—or, about one year and four months— to be ratified. Is that too long for a change to our most fundamental Law of the Land?

When the states and the American people get stirred up, it appears that things can happen quickly.

(As another aside, six amendments have been approved by Congress and have failed to be ratified by the states . At least one of these, “The Slavery Amendment,” was morally repugnant, and the “Anti-Title Amendment” was almost silly. Of those that were approved by Congress and yet never ratified by the states, only the “Equal Rights Amendment” puzzles me.)

These data prove Prof. Levinson's point, that the U.S. Constitution has been amended—or has even been attempted to be amended—remarkably few times since 1789. But they also prove another point: that the amendment process has, historically, proceeded very quickly in the earlier days of the Republic when Congress deigned to send an amendment to the states. It is not as cumbersome as it first appears.

I think the problem has less to do with the amendment process than with our pusillanimous politicians at the Federal level. And, yes, at the state level, too.

Yes, they may overly-venerate the Constitution—or, at least, pretend to—and, in so doing, refuse to propose amendments. “Don't fix it if it ain't broke,” and such crap.

But our choice of politicians is, in the end, our problem, not the Constitution's. That document gives us the power to change things if we will only WAKE UP!

I realize this is all preaching to the choir, but our problems today have much less to do with our Constitution—Ruth Bader Ginsburg notwithstanding—than with those whom we have foolishly chosen to lead us.

More on "originalism," Ruth Bader Ginsburg and Thomas Jefferson's contradictory quotes later.

Denis Neville said...

@ Neil re: “One problem with a document as old as the Constitution…”

The fault is not in the Constitution, but in ourselves.

“In any state in which the government constitutes itself with what power it pleases, there is in reality merely a form of government without a constitution. A constitution is not the act of a government but of a people constituting a government." - Thomas Paine

In 1940, Charles H. McIlwain, Constitutionalism – Ancient and Modern, wrote:

“If the history of our constitutional past teaches anything, it seems to indicate that the mutual suspicions of reformers and constitutionalists, of which I see dangerous symptoms in the United States today, must be ended if we are to keep and enlarge the liberties for which our ancestors fought. Liberals must become more constitutional than some of them are, constitutionalists must become more liberal than most of them have been. We cannot get the needed redress of injustices and abuses without reform, and we can never make these reforms lasting and effective unless we reduce them to the orderly processes of law. Let us not confuse jurisdictio and gubernaculum, and let us not allow either to swallow up the other. I am not so rash as to try to apply the general principles guiding our past constitutional history to the details of our present constitutional arrangements in the United States; for that I am not competent. But I do believe that these general principles, if they are properly deducible thus from the past experience of our race, ought to have their due weight in determining our attitude toward our present specific problems. We live under a written constitution which classifies some things under jurisdictio, as legal fundamentals, and thus puts them under the protection of the courts, while it leaves other matters to the free discretion of the organs of positive government it has created. The distribution of these matters between jurisdictio and gubernaculum, made so many years ago, is of course in constant need of revision by interpretation or by amendment; and it may also be that the mode of that amendment is somewhat too slow and cumbersome for the best interests of all. But the surest safeguard of a proper balance between the jurisdictio and the gubernaculum — and that even in a government of the people as well as for them — would seem to consist in some such constitution containing some such distribution. There is the problem of restriction and the problem of responsibility, and practical politics involves their interrelation. One of them is legal, and it is far the older; the other is political and in its present form it is much more recent. The people have now replaced the king in these political matters of government; but even in a popular state, such as we trust ours is, the problem of law versus will remains the most important of all practical problems. We must leave open the possibility of an appeal from the people drunk to the people sober, if individual and minority rights are to be protected in the periods of excitement and hysteria from which we unfortunately are not immune. The long and fascinating story of the balancing of jurisdictio and gubernaculum, of which I could give only the barest outline here, should be, if we could study it with an open mind, of some help in adjusting and maintaining today the delicate balance of will and law, the central practical problem of politics now as it has been in all past ages. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.”

Valerie said...

Bill Moyers has a wonderful and uplifting interview with Tom Morello - activist and rock musician. I didn't know him or his work but he is an amazing man - very modest, interesting and positive in an enlightened and sincere way. I highly recommend the interview

Denis Neville said...

@ Valerie re: Tom Morello

“A musician's or artist's responsibility is a simple one, and that is, through your music to tell the truth.” - Tom Morello

We need more like him. He offers a stark contrast to the mindless escapism that dominates today.

Amy Goodman’s interview with Morello:

Another stark contrast, in politics that is, Morello and Obama:

“We both have Kenyan fathers and white American mothers, and we both attended Harvard University at the same time. He was in law school while I was an undergrad. And we’re both from Illinois. And we’re both pretty good basketball players, too, so—though our politics may differ.”

Morello and Obama are staying at the same hotel in Chicago, and Morello hopes to share an elevator with Obama at some point. It will never happen, but that would be one interesting ride:

AMY GOODMAN: What would you say to President Obama if you met him in the elevator?

TOM MORELLO: I’d like to see him in the pit of a Rage Against the Machine show. Let’s start there. Let’s see if he’s really down with the people

”If ignorance is bliss, then knock the smile off my face.” - Rage Against the Machine

Will said...

@Valerie and all,

Here's a sample of Rage's music for those unfamiliar with this amazing band. Btw, besides being a great person, Tom Morello is a GUITAR GOD in the music world. Enjoy!

More info on this song and video:

Zee said...


“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” --Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

“As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. .... the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses. --James Madison (In a letter to Thomas Ritchie, 1821.)

As @Denis said, “original intent” is difficult to discern. Nevertheless, it is a mystery to me how the Constitution can be consistently applied without making a serious attempt to understand what the Founding Fathers were trying to accomplish.

Otherwise, application of the Constitution in day-to-day court cases will rely almost entirely upon what the presiding judge's—or panel of judges'— biases, whims and mood happen to be at that particular instant in time.

That's just not the kind of arbitrary judicial system to which I care to be subject.

Based upon the foregoing quotes, it appears to me that Jefferson and Madison are in my camp: that the Constitution should be interpreted and applied based on the understanding of the document by those who ratified it—or its subsequent amendments— at those respective instants in time.

Difficult to do? Though I am not a lawyer, I am absolutely certain that unearthing “original intent” is very difficult to do. Still, at least by the time that cases reach the Supreme Court of the United States, We the People are owed that level of scholarship by its Justices, instead of resort to what Sanford Levinson has referred to as “informal amendments.”

“ ...where Congress or the President will act aggressively and then the Supreme Court will basically uphold it. Or, on occasion, the Supreme Court is innovative and what in some of the American States or other countries might actually be the subject of formal amendment, in this country take place in informal ways...”

Levinson, fairly, goes on to blame this underhanded approach on (1) the difficulty of actually amending the Constitution, and (2) the fact that anyone who proposes amendments these days is met—or blasted—with the response/criticism “How dare you try to amend our perfect Constitution?”

These criticisms are true—though I think the Constitution is easier to amend insofar as the process is concerned—than Levinson and others make out.

So where is all this leading me? Well, first, @Neil, I agree with you and Levinson that important features of the Constitution—even as amended—are seriously outdated. I further agree with you that even the amendment process is outdated.

But I believe —I say this because I am not a trained lawyer or judge—that the “informal amendment” process is quite wrong. It is a form of intellectual and governmental laziness that “Living Document” enthusiasts dress up a legal theory when clearly, the Founding Fathers thought quite differently. And so should any intellectually-honest modern-day interpreter of the Constitution.

Well, once again I appear to be up against my character count, so more later on Ruth Bader Ginsburg and the contradictory thoughts of Thomas Jefferson.

Zee said...


I'm not sure that I can fully comprehend the details of your quote from Charles H. McIlwain. I will have to invest some time in understanding the meanings of such words as “jurisdictio” and “gubernaculum,” having neither a classical education nor your—or so I perceive—photographic memory.

Still, I think that I understand McIlwain's first few sentences.

“If the history of our constitutional past teaches anything, it seems to indicate that the mutual suspicions of reformers and constitutionalists, of which I see dangerous symptoms in the United States today, must be ended if we are to keep and enlarge the liberties for which our ancestors fought. Liberals must become more constitutional than some of them are, constitutionalists must become more liberal than most of them have been. We cannot get the needed redress of injustices and abuses without reform, and we can never make these reforms lasting and effective unless we reduce them to the orderly processes of law. (My bold emphasis added.)

McIlwain seems to be saying what I have been trying to convey to @Neil, at some great pains owing to the “character count” limitation of this forum. Viz., that changing the Constitution to institute reform requires lasting change implemented through the existing processes of law. Not the “informal amendment” process discussed—and criticized—by Sanford Levinson and propounded by the “Living Document” school of Constitutional interpretation and application.

Here's one more quote from a Founding Father that I think is in that same vein:

“If, in the opinion of the people, the distribution or modification of the constitutional powers be in an particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” —George Washington (Farewell Address, 1796.)

In brief, Washington said that if the Constitution is to be changed, it should be as described in Article V of the Constitution, and not by “informal amendments” as outlined in one of my previous posts.

I'm also guessing that McIlwain was more an “original intent” reader of constitutions than he was a “living document” enthusiast, but correct me if I'm wrong:

“I am not so rash as to try to apply the general principles guiding our past constitutional history to the details of our present constitutional arrangements in the United States; for that I am not competent. But I do believe that these general principles, if they are properly deducible thus from the past experience of our race, ought to have their due weight in determining our attitude toward our present specific problems.

Finally, you cite McIlwain as saying:

“The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.”

To which I can only say—if I have understood McIlwain—“Amen!” and “Bravo!”

Zee said...

@Neil and @Denis--

Sorry, but I can't help myself.

One last thought--or maybe two-- on "originalism."

Back in December 17 & 18, 2011, we had a protracted discussion about "originalism" over at

I'll leave it as an exercise to the reader--if any of you care at all--to decide who had the better of the argument.

But as we discussed at Reality Chex, one thought that I'd really like to leave you all with is that I truly believe that we are all "originalists" to some extent, at least when it suits our purposes. And that's because in the end, it's the only proper position to argue from.

Here's a link to Al Franken's explanation as to why he opposed the National Defense Authorization Act (and please note, I agree with him entirely).

But observe how many times he relies on the Founders' intentions to bolster his arguments.

But does anybody here think that Al Franken is really an "originalist" under most circumstances?

I know, I know. It's dangerous--probably even wrong--to put myself inside someone else's mind. @Kat once rightfully bit my head off once for doing just that, and for which I apologized.

But really? Whaddya think about Al Franken? Just this once?

Valerie said...

@Zee you wrote "Nevertheless, it is a mystery to me how the Constitution can be consistently applied without making a serious attempt to understand what the Founding Fathers were trying to accomplish." All I can add to that is it is the same people who consider themselves Christians and don't make any serious attempt to understand what Jesus was trying to accomplish.

Denis Neville said...

@ Zee re: “laziness that “Living Document” enthusiasts dress up a legal theory when clearly, the Founding Fathers thought quite differently; the Constitution should be interpreted and applied based on the understanding of the document by those who ratified it—or its subsequent amendments— at those respective instants in time.”

Interpret the Constitution as it was understood by those who drafted it? Does that make sense?How did they understand our ability to add interpretations based upon new dynamics, new facts and new situations? Not allow limitations of government to evolve and adapt in light of changing circumstances and beliefs about justice?

Semantic content -"equality," "due process of law," "fundamental justice," "free and democratic society," "freedom of religion" is not always fully determinate or stable from one generation to the next.

Impose the dead hand of the past upon contemporary society and practice?

As Alice said, words can't just mean whatever one wants them to mean.

Original intentions are often unclear. The original intentions of the authors can vary from person to person. Sometimes the only things upon which joint authors agree on are the words chosen. The intentions behind that choice can vary significantly. They can have different goals and applications in mind and yet settle on the same set of words.

Did the intended applications of an equality provision encompass equal access to the legal system by all groups within society? Or only something more specific like equal access to fairness at trial? Did they perhaps include equal economic and social opportunities for all groups within society?
What is taken to be the plain meaning of the word "equality" is what the dominant group understands it to be. What is taken to be the obvious historical intentions of the framers is whatever intentions fit the ideologies of the dominant groups. What is taken to be the best moral theory underlying the constitution is nothing more than a rationalization of current social structures, all of which systematically oppress the interests of women, minorities and the poor.

Simon Schama, “The miracle is that Hamilton and Jefferson ever collaborated enough to craft the Federalist Papers. Both of them - and it's a lesson for us - were prepared to sink their fundamental differences about what American government was to get the Constitution ratified. The issue that is the hot button issue for us now is actually in the best tradition of American politics. It is whether or not to take a relatively expansive view of what government should do. Is government only entitled to do those things, which were enumerated in the late 18th century? The Founding Fathers in all their disputes and disagreements were children of the Enlightenment. And the essence of the Enlightenment was to understand how to think about power and government. It was in their intellectual DNA to feel things would move on again. Their generosity was to sort of organically provide for the Constitution to flower and bloom and change and mutate as circumstances changed.”

Denis Neville said...

@ Zee - on "originalism" and equality

Constitutional Accountability Center on “Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation’s Long History of Racial Discrimination?”

“At its core, this fight is a battle about whether Brown sets a constitutional minimum floor, or more of a maximum limit, in terms of what federal, state, and local governments can do to redress our nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal opportunity is a reality for all Americans regardless of race…But over the last quarter of a century, in a string of bitterly divided rulings – most decided by a 5-4 margin– conservatives on the Rehnquist and Roberts Courts have redefined the meaning of Brown and of the Equal Protection Clause, invoking the constitutional guarantee of equality to strike down virtually every race-conscious government action the Court has reviewed. Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings have dramatically limited the power of government to redress racial isolation in schools, enact affirmative action programs, and draw legislative districts in which minorities have a fair chance of electing their candidate of choice…

“Under the Roberts Court, the notion of a colorblind Constitution – offered by the first Justice Harlan in his dissent in Plessy v. Ferguson to explain why enforced racial segregation violates the Constitution – may be used to strike down or limit the very civil rights statutes that have helped the nation end the vestiges of Jim Crow and more than a century of racial discrimination. Chief Justice Roberts is nearing his goal of ending all forms of race-conscious legislation. The question is whether this is bringing us closer to achieving the promise of Brown or moving us further away.”

The Constitution at a Crossroads series: The Ideological Battle Over the Meaning of the Constitution focuses on a dozen or more of the most ideologically charged areas of constitutional law and describes the ideological battle on the Supreme Court over the meaning of the Constitution:

Neil Gillespie said...

Glad to hear you are a fan of Sanford Levinson. I’ll have to check out the Second Amendment journal article.

A recent pair of U.S. Supreme Court cases shows the emptiness of constitutional guarantees unless a person is represented by competent counsel. The NYT reported March 21, 2012 that criminal defendants have a constitutional right to effective lawyers during plea negotiations.

The Times reported: "The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel," said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

Gideon established that indigents the right to counsel in 1963. Given the high cost of legal representation, many people would be considered indigent, or would soon arrive at its doorstep once the $200+ per hour legal fee clock starts ticking.

So what about the right to counsel prior to 1963? That issue was not addressed by the U.S. Constitution for 174 years. (1789-1963). Imagine how many people were wrongfully convicted, incarcerated, or even executed, during those 174 years while the U.S. Constitution stood silent.

Justice Scalia penned a dissenting opinion in each case. The founders did not mention entitlement to counsel in criminal cases in the constitution.

Lafler v. Cooper, No. 10-209, decided March 21, 2012
Missouri v. Frye, No. 10-444, decided March 21, 2012

Zee said...

@Denis and @Neil--

You raise questions for which I have no easy answers.

@Denis, you are entirely correct when you state:

“Original intentions are often unclear. The original intentions of the authors can vary from person to person. Sometimes the only things upon which joint authors agree on are the words chosen. The intentions behind that choice can vary significantly. They can have different goals and applications in mind and yet settle on the same set of words.” --@Denis Neville

Still, I believe that there are overarching principles expressed in both the Constitution's Preamble and The Declaration of Independence that are clear and can be applied non-controversially to modern-day problems in ways that—had the Founders been able to observe the last 223 years of human progress—the Founders would have found entirely logical and reasonable. @The Doktor and I had a discussion on this topic over at Reality Chex, with Dok suggesting that the Declaration be used as a guidepost to interpret the Constitution, and me suggesting the Preamble.

“We the People... in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Quoting @The Doktor, “In the context of bringing these goals into existence- does that not clarify at least some (if not most) of the "intent" of our constitution? I have heard some people (not here) deride others for quoting the D[eclaration] O[f] I[ndependence], but I would argue the very purpose of the constitution is to bring about the stated goals of the DOI...”

If questions of constitutionality are decided starting from the basic premise that the nation's overarching goal is to expand upon the stated “truths” and intentions expressed in the Declaration and the Preamble, then I think that's a good start toward developing a somewhat consistent interpretational framework.

Of course, I am vastly oversimplifying because it must be recognized that the Constitution declares many rights, some of which exist in tension with each other. So balancing acts will inevitably have to be performed, just as the Supreme Court has always done.

And there will be other questions before the Court that simply cannot be shoehorned into this framework at all.

What happens, for example, when, as you have pointed out, @Neil, something is simply NOT mentioned in the Constitution at all?

Well, then it's definitely time to amend the Constitution. The difficult amendment process is probably one of the great flaws in the document. Still, it must be tried. It's the only right and proper way:

“I am certainly not an advocate for frequent...changes in laws and constitutions. I think moderate imperfections had better be borne with... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” Thomas Jefferson (Bold emphasis added.)

Anonymous said...


I think that my "overarching principles" approach to identifying and applying the Founders' "original intent" is consistent with the way in which Progressive Christians--myself included--attempt to understand Christ's true message.

Confronted with inconsistent and sometimes even contradictory Gospels, written at different times and having differing theological agendas, Progressive Christians look past the details to Christ's overarching message--expressed in all of the Gospels--of love and tolerance.

Zee said...


Sorry. I misunderstood your comment a bit. I agree with you that those who invest no effort in trying to understand the original intentions of the Founding Fathers are often the same people who refuse to invest any time in understanding the true message of Jesus, yet who call themselves Christians.

But, as I said in my prior post--in which I failed to identify myself--the same principle that Progressive Christians apply to understanding the Gospels can be applied to identifying "original intent" in the Constitution: look for the underlying, consistent threads.

In fact, Thomas Jefferson did just that in constructing the "Jefferson Bible." Here's part of what he came up with in his "distillation" (amongst many other comments on Christianity):

"The doctrines of Jesus are simple, and tend all to the happiness of man.

1. That there is one only God, and he all perfect.

2. That there is a future state of rewards and punishments.

3. That to love God with all thy heart and thy neighbor as thyself, is the sum of religion.

Neil Gillespie said...

@Zee, re Whaddya think about Al Franken?

Thank you for the link to Al Frankin’s comments on the NDAA.

In my view it was a typical political speech from a Democrat who opposes the NDAA.

Frankin’s reference to the Constitution was schoolboy rote, an appeal to nostalgia that was missing a reference to mom and apple pie.

The constitution is a hollow document, something the 110,000 Japanese-Americans interred during WWII would understand.