Taking the 14th

By Capt. Fogg

"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

14th Amendment, U.S. Constitution
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Now, I'm no lawyer, which means that I generally take such statements at face value and have no knowledge of what pretzels they've been twisted into by various courts in various cases, but it seems to me that if congress can't question the validity of our public debt, then congress can't refuse to pay it or more importantly say it's only valid under a certain amount authorized by Congress after they've already deemed it legal. What do you think?

I hate to bring up the Constitution at a time when the Tea Bag Patriots are pretending to worship it while claiming that those who would like to actually conform to it are "shredding it," but the situation is getting serious.

Of course, this whole controversy is about "taking down" the president we elected by a good margin and replacing him with a Tea Party Republican of their choice hell bent not on reducing the debt, but killing Social Security, Medicare, all forms of welfare, and any protection for the public against the health insurance cartel -- and all to make sure people like me can put an extra tank of fuel into the yacht every now and then thus creating jobs in the Bahamas and Taiwan.

After all, they raised the debt ceiling every year a Republican was in office since the beginning of the Reagan administration and authorized Bush's massive debt explosion like a well-disciplined private army. Remember when "debt doesn't matter" was the slogan? No? Well I do.

Obama would be impeached if he blocked debt payments,

says Rep. Steve King (R-IA) and he'd also be impeached if he invalidated the debt ceiling based on the 14th Amendment, says Rep. Tim Scott (R-S.C.) Talk about a poker player with a "tell." Might as well lay the cards on the table.

It's all about impeachment and all about finding some flimsy excuse for forcing the president into a position where they will impeach him if he does and impeach him if he doesn't. No more revolting, I guess, than impeaching one for asking his secretary not to tell his wife he was having an affair. Talk about insurrection and rebellion! No sooner did we lose the Cold War gravy train then we embarked on the Cold Secession.

President Clinton told us recently he wouldn't hesitate to use the 14th to raise the debt ceiling and "force the courts to stop me." You'll remember the attempts to impeach him on any pretext and how the talk of the "failure of the Clinton presidency" preceded the Clinton presidency and how he would certainly be a one-term president and how his tax policies would bankrupt the economy. They hope you won't remember, of course, because we're hearing the same damned bullshit again.

I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,

said Bill Clinton to The National Memo last week. No wonder slimy things like the Newt are challenging the Constitutional basis for even having a Supreme Court.

Meanwhile that extra 3% tax cut I get on anything I earn over $250,000 is going to prompt me to create jobs for those struggling people now paying for the longest, most expensive wars in American history while losing their houses, jobs, and medical insurance, waiting for the voodoo to kick in and save us all -- and all will be fine just in time for a Tea Party president. I can feel it in my bones.

(Cross-posted from Human Voices.)

Scalia says Constitution allows discrimination against women, gays

By Michael J.W. Stickings

As HuffPo's Amanda Terkel is reporting, right-wing Supreme Court Justice Antonin Scalia gave an interview recently during which he said that the Constitution does not prohibit discrimination against women and gays:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that.

Scalia went on to say that regardless of what is, or is not, in the Constitution, laws may be passed prohibiting such discrimination:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

To a certain extent, Scalia is right. The Constitution obviously does not, and cannot possibly, address every single matter of public policy, and it is the responsibility of democratically-elected legislators and executives (the president, governors) to enact laws within the general framework established by the Constitution (along with individual state constitutions). 

But on this matter, Scalia is simply wrong. As Terkel writes:

For the record, the 14th Amendment's equal protection clause states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them."

In other words, while Scalia asserts that the Constitution doesn't currently require discrimination (it would if many Republicans had their way and an amendment prohibiting same-sex marriage were adopted) and that legislatures can prohibit discrimination, what he is saying, essentially, is that discrimination is up to "society," with no legal recourse whatsoever for those facing discrimination.

So if a legislature passed a law, say, barring homosexuals from government employment, that would be that. Or if a legislature passed a law, say, keeping women with children out of the workforce, that would also be that.

But, again, Scalia is simply wrong -- either that, or he knows better and is being disingenous. Indeed, based on his view here, why even have a Constitution at all?

As Tristero writes over at Digby's place:

I realize that this flies in the face of widely held conventional wisdom but I can't escape the conclusion that when it comes to understanding the founding documents of the United States, Scalia is a mediocre intellect. If that.

On the other hand, if we were to agree that this man really is as brilliant as everyone says, then that can only mean that Scalia is deliberately misreading these documents to make them say the very opposite of what Jefferson, et al, clearly wrote. Furthermore, it can only mean that a justice of the Supreme Court is, for reasons we can only guess at, consciously adopting a distinctly un-American, if not blatantly anti-American, bias both to his judicial philosophy and to his rulings. In other words, to believe that Scalia really is smart enough to understand the founding documents, and therefore deliberately misread them, is to believe that he is an activist, a reactionary, and a royalist openly seeking the destruction of this country.

I tend to believe that both are true. Scalia holds a limited, right-wing interpretation of the 14th Amendment, and of the Constitution generally, basically because he holds a right-wing, anti-American judicial philosophy and political bias. In a way, he is both brilliant (in a nefarious way) and mediocre at the same time.

Is this possible? Well, perhaps he is "brilliant" enough to distort the Constitution to suit his own partisan and ideological ends, while the intellectual limitations of right-wing ideology render his distortions "mediocre," at least in terms of the accuracy of Constitutional interpretation.

In this sense, he's a lot like Karl Rove and Bill Kristol, two very smart men who are wildly wrong about just about everything. Now, in all three cases, and even more so with respect to Rove and Kristol, I suspect that what drives them is partisan cynicism. Perhaps they all know better, more or less, or at least knew better, at some time, but I suspect that their right-wing delusions have blinded them to the very possibility of truth. The question is whether they actually know any better. Or at this point whether they are even capable of knowing any better.

Regardless, such delusion, however deep, should not be allowed to exonerate them, to rid them of all responsibility. Ultimately, they are fully responsible for their beliefs -- there's no false consciousness here.

And when it comes down to it, I'm on the side of brilliance over mediocrity. Which is to say, I tend to think they know what they're doing. In Scalia case, I tend to think he knows his interpretation (or misreading) of, say, the 14th Amendment is a limited, right-wing one, even if he wouldn't put it that way.

But, again, it's not clear whether he thinks he holds the right interpretation, one of multiple equally legitimate interpretations, or a distorted partisan interpretation. And so it's not clear whether he's being deliberately misleading or whether he's just plain wrong.

Who's to say what goes on inside such a brilliant mind? Then again, maybe that mind is so sick, so polluted, so twisted, so distorted, that he himself doesn't know what's going on, and what he's really all about.