Random Constitutional Thought
It seems to me that the two sides of the political spectrum interpret the Constitution thus:
The left side sees some things in it that aren’t there (right to abortion, right to education) and doesn’t see things in it that are there (second and tenth amendments).
The right side pays attention to what is there but figures that anything the government isn’t forbidden to do by the Constitution is OK (such as ban sexual things they’re not fond of).
Discuss.
August 22nd, 2005 at 10:04 am
The left hates the NRA for defending the 2nd Amendment.
The right hates the ACLU for defending the 1st Amendment.
August 22nd, 2005 at 12:30 pm
I tend to think that both sides ignore those parts of the Constitution that are inconvenient to them. Take the Tenth Amendment, where the right is just as likely to ignore it as the left, albeit over different issues. Or the Second Amendment, where the “left” wants to ignore the “right of the people” stuff, and the right wants to ignore the “well-regulated militia” stuff (which, as any gun proponent can tell you, is completely meaningless, and the amendment would be no different at all if the stuff before the second comma disappeared tomorrow).
As for the ACLU, I don’t necessarily think they’re as purely principled as I’d like, but that doesn’t mean that the charicature painted by much of the right (and, apparently, Xrlq) is true, either. Until someone can point me to the part of the Constitution that says its protections don’t apply to “hardened criminals,” I’ll continue to support them. They’re hated in no small part because of their willingness to defend unpopular people and casuses (including ones I despise), but that’s what makes them necessary. Popular people and causes don’t exactly need a champion.
August 22nd, 2005 at 12:40 pm
right to education
I’ve never heard of this one..explain? (I’m curious not necessarily questioning that you put it there?)
I would quite frankly summarize as both sides see what they want to see in the Constitution, no more nor less. The 6th doesn’t seem to apply to the War on Terror, the 2nd is a “collective” right”, both sides have chipped away at the 4th, the answer to runaway lawsuits (in some quarters) is raising the limit on small claims to avoid jury trials (see 7th).
As for the whole 10th Amendment, my own theory is that neither side particularly cares for it except when it helps them. The 10th has been associated with the conservative movement because, IMHO, Democrats controlled Congress for a long time and conservatives latched onto the 10th Amendment as a means of getting their own policies into place. Now that the Republicans have control of the Senate, House and Whitehouse, there has been little concern for the 10th by Republicans.
the Establishment Clause means everything and the rest means nothing
explain the rest means nothing.
August 22nd, 2005 at 1:27 pm
Not really on topic: With luck and hard work, perhaps we can have a third party that sits in the middle and draws votes from the center-left & center-right. I think the key point on that though is that Congress is where the majority of this “Center” party would have to get votes. A Congress that has 50+% of something other than R or D will have a “cooperative” president, I am sure.
Then mebbe our parchment can be returned to having full meaning.
August 22nd, 2005 at 4:49 pm
Manish, I’ve heard a lot of lefty politicos mention right to educaiton and right to healthcare.
August 22nd, 2005 at 4:57 pm
Perhaps I should have been clearer. Nobody would fault the ACLU (nor, I might add, woudl too many people disagree with it at all) if it took a principled stand in favor of hardened criminals enjoying constitutional protections. It’s the extra-constitutional protections that cause the ire – much like the judge-imposed, extraconstitutional right to abortion. Add to that the 2003 recall election in California that the ACLU attempted to block (and very nearly succeeded), plus having the cheek to smarmily describe their agenda as “the Constitution” (which it’s not) rather than simply “our political preferences” (which it is, and that’s fine), and there’s good reason for them to be unpopular. Contrary to common ACLU rhetoric, just because your views are unpopular does not make them right. Maybe they’re unpopular for a reason.
On religion, the ACLU consistently errs on the side of construing everything imaginable as an impermissible state-sponsored endorsement of religion. That’s fine in cut and dried situations where the activity in question is 100% state, 0% private action (where there is no individual liberty issue to be concerned about), or where it’s 100% private and 0% state (where even the ACLU will concede the First Amendment doesn’t apply), but it gets sticky in situations that involve a mixture of public and private actions. Case in point: school vouchers, which the ACLU dubs unconstitutional because private choices result in states funding religious education. On the flip side, a public school monopoly, where individual choice goes away completely, is A-O-K by the American Civil “Liberties” Union.
August 22nd, 2005 at 5:06 pm
I’ve heard a lot of lefty politicos mention right to educaiton and right to healthcare.
I’ve never heard anyone claim that either was a Constitutional right.
XRLQ..what is your point? All of the school voucher programs that I am aware of where the ACLU has taken a stand have been ones that have explicitly allowed for funding of religious schools. If a voucher program comes out that explicitly doesn’t allow for funding of religious schools and the ACLU still challenges it, then you have a point.
August 22nd, 2005 at 6:44 pm
Manish, I made my point clear enough the first time around, as did you yourself by admitting that the ACLU will only be OK with vouchers if parents have fewer choices. You would have a point if voucher proponents advocated a system that only allowed religious schools – or worse, only schools affiliated with a particular religion – to participate. They don’t so you don’t.
August 22nd, 2005 at 9:03 pm
X..where is it enshrined in the Constitution that people should have the right to choose a religious-based school for their child AND have the government pay for it?
August 23rd, 2005 at 12:28 am
Xrlq:
You say shit like this, and you accuse liberals of making shit up? There’s an old saying about stones and glass houses…
Christ on a pogo stick, where to begin? First the issue with vouchers isn’t the “private choice,” it’s the state funding of religion, an activity which is explicitly forbidden by the constitutions of several states. (Damn that anti-Catholic Blaine!) Second, the public schools have nothing approaching a “monopoly” until such time as private schools and homeschooling are forbidden an all students are compelled to attend public schools and public schools only. But hey, let’s not let silly “facts” get in the way of our rhetoric…
Manish:
[Uncly-Wuncly] I’ve heard a lot of lefty politicos mention right to educaiton and right to healthcare.
[Manish] I’ve never heard anyone claim that either was a Constitutional right.
Agreed. People who talk about “right to health care” and “right to education” are generally talking not about Constitutional rights, but about basic human rights. But we don’t much care about those…
August 23rd, 2005 at 12:29 am
D’oh, sorry about the tag. Uncle, can you fix?
August 23rd, 2005 at 12:50 am
The same place where it’s enshrined that government can’t fund religious and non-religious schools alike on a neutral, evenhanded basis, as the ACLU claims – which, of course, is nowhere. Nor did I ever claim anything different. Unlike the ACLU, I’m not in the habit of dressing up my own personal preferences as some lofty constitutional principles – except, of course, when discussing an issue the Constitution actually has something to say about.
The other difference between my fake position and the ACLU’s real one is that one *could* reach my non-conclusion without torturing the Free Exercise Clause anywhere near as badly as the ACLU routinely does to the Establishment Clause. Imagine the outrage if government were to impose a similar “no religion” condition on any other benefit it doles out. “Sure, Mr. Jones, you can keep your overpaid government job, spend your money on anything you want, just don’t contribute any of it to any church.” The argument would be exactly the same (we didn’t have to offer you this job to begin with, nyah nyah nyah nyah nyah); there just wouldn’t be an ACLU or a powerful teachers union (but I repeat myself) to advance it.
August 23rd, 2005 at 12:52 am
Crap, I should have clarified that the last comment was in response to Manish’s post.
August 23rd, 2005 at 1:02 am
TGirsch:
Tell that to Microsoft, and to the judge who had no trouble at all finding a “monopoly” where no one was forced to use Windoze 98, only to pay for it.
August 23rd, 2005 at 11:46 am
Xrlq:
Well, that’s a bit more nuanced (I know conservatives hate nuance). The question here is whether or not these neutral, evenhanded funds are financing religious indoctrination. If they are, as is generally the case with religious schools, then I’d submit that this does run afoul of the establishment clause — tax dollars being used for religious indoctrination seems a no-no to me, although you’ll likely disagree. Tax dollars funding secular work performed by an organization that just so happens to be religious and for which the government can and does also pay non-religious organizations to do are probably allowable.
Um, no it wouldn’t. In your example, the government is (over)paying Mr. Jones in exchange for his services, and that’s the extent of their involvement. Mr. Jones can do whatever he pleases with the money.
The voucher example is fundamentally different, because the voucher recipient isn’t being compensated for anything, and the voucher can only be used at participating schools and nowhere else, and oh by the way virtually all of them (in Cleveland, anyway) are religious (mostly Catholic). Sure, it’s hypothetically possible that the money could go to a secular private school, but come on…
And again, there’s the issue of tax dollars funding religious indoctrination.
(Of course, lost in all this is the fact that constitutional issues aside, voucher programs simply don’t work, with studies ranging from no improvement in voucher students, to voucher students actually performing worse. But that’s another thread.)
I suppose if you wanted to make the case that the education system is more like a private for-profit software company than, say, the highway system, you might have a point.
August 23rd, 2005 at 11:48 am
I’m having a hell of a time with tags these days. Sheesh. Sorry.
August 23rd, 2005 at 11:53 am
Me:
August 23rd, 2005 at 11:55 am
Aha! I’ve figured it out. I think there’s something goofy with Uncle’s template. My html above was as follows (using [] instead of less-than/greater-than for illustration here):
[b]Me:[/b][blockquote]Test[/blockquote]
For some reason, it’s ignoring the close-bold tag. Maybe a newline afterward would help?
Me:
August 23rd, 2005 at 12:19 pm
I do, of course, but once the same reasoning is applied outside the K-12 environment, so does almost everyone else. Even the ACLU doesn’t dare challenge the GI bill, which “finances religious education” in exactly the same way every time a recipient chooses to use it to attend a religious institution. The proper test, IMO, is not whether tax dollars end up sometimes financing religious education, but rather, whether such incidental benefits to religious institutions are the result of a state or private action. If the state is deliberately funnelling money into religious organizations, such as by excluding secular schools from a voucher program, that’s one thing. If the state is financing everyone’s education equally whether they choose religion or not, that’s quite another.
I suppose if you wanted to make the case that the education system is more like a private for-profit software company than, say, the highway system, you might have a point.
My point wasn’t that schools are operating systems; it was that monopolies are monopolies. If you want to argue that government school monopolies are good while private OS monopolies are bad, that’s fine. But to argue that government schools aren’t monopolies for precisely the same reason the courts found that Microsoft is one is utter nonsense – unless, of course, you also disagree with the court’s finding that Microsoft is a monopoly.
August 23rd, 2005 at 12:30 pm
X…look at Charter Schools here in California. Anybody can start one as long as they don’t teach religion, and they give people choice and get government funding.
Imagine the outrage if government were to impose a similar “no religion” condition on any other benefit it doles out. “Sure, Mr. Jones, you can keep your overpaid government job, spend your money on anything you want, just don’t contribute any of it to any church.”
This is entirely different. Religious groups are allowed, and do, bid on government contracts to do this or that. They can bid if they follow the rules with respect to not discriminating based on religion. The profits from these activities generally flow back to the church and there is nothing wrong with that. Heck, a religious group could apply to be a charter school as long as it doesn’t actually teach religion.
August 23rd, 2005 at 1:57 pm
Xrlq:
I wouldn’t say it’s “exactly the same way.” In the GI bill, the money for college is part of the soldier’s compensation. So I’d argue that even though the money is earmarked for education, this is still closer to the government employee scenario than to the voucher scenario. Further, the mix of secular/sectarian universities is markedly different than that of a typical voucher program. Further still, most universities with religious affiliations do a lot less in the way of indoctrination than do similar K-12 schools, and with good reason: at the K-12 level, people are generally there explicitly because of the religious affiliation, whereas at the university level, the dynamic is much different.
If only it were so cut and dry. Voucher programs in particular are a good example of this, where *wink wink, nudge nudge* you can use them for (hypothetical) secular schools if you want to, but the deck is greatly stacked against this. How many at-risk students in Cleveland have a secular school (or, hell, even a Baptist school, if they wanted one) anywhere near them participating in the program? This goes directly to the argument that vouchers are simply a way to get in the back door what they couldn’t get in through the front. Even if it’s completely unintentional (which I highly doubt), such programs have the effect of disproportionately promoting and benefiting parochial institutions.
Then you are apparently operating from a different definition of “monopoly” than I am. By definition, a monopoly is a business, i.e. an entity that engages in commercial activity for profit. Public schools are not “businesses” in any meaningful sense of the word, they do not operate for profit (nor can they somehow abuse their “monopoly power” to protect this nonexistent profit); hell, they don’t even charge any tuition. If your child is school-age and you live in that school’s district, they pretty much have to take you; even they don’t have much choice about it. This is a far cry from a free-enterprise monopoly, in the sense you seem to be using the term.
Manish:
They could even teach about religion; they just couldn’t indoctrinate or require religious exercise.
August 23rd, 2005 at 4:46 pm
Only because in one scenario, we have a powerful teachers union protecting its turf anyway it can, and in the other, we don’t. That a GI is being compensated for services doesn’t matter; the same principle applies to cash-based welfare benefits, which can also be donated to churches. The only difference is that vouchers are good only for education, as opposed to simply handing parents cash and hoping they’ll choose to spend it on their kids’ education. The latter would be a horrible idea, of course, but for reasons having nothing to do with anybody’s interpretation of the Constitution.
How so? Anybody can start a school if they can convince parents to pay for it. Most of the religious vs. non-religious make up is supply and demand. The only structural advantage some parochial schools enjoy is the ability of a large institution such as the church to subsidize what the state will not. That difference would go away if the state subsidized all education equally, or equally based on religion-neutral criteria. Unfortunately, to the ACLU, religion-neutral isn’t good enough – just as race-neutral isn’t in other contexts.
Oh, please. The fact that a monopolist isn’t for profit doesn’t make the effects of the monopoly any different. Does anyone really think Windoze would start working better if Microsoft became a charity? Your earlier post conceded that government schools would constitute a monopoly at “such time as private schools and homeschooling are forbidden an all students are compelled to attend public schools and public schools only.” Let’s stick with that definition; it’s the exclusive right that is at issue, not the presence or absence of a profit motive. In that sense the government school monopoly is worse, as that monopoly is created by the state, while Microsoft’s arose in large part as a result of Microsoft’s business acumen, combined with the fact that OS standards tend to create natural monopolies while schools don’t (e.g., my OS is worth more to me if you use the same OS and can buy the same applications as I can, but my government school education is no better or worse for me because you did / didn’t attend a government school yourself).
August 23rd, 2005 at 5:13 pm
Xrlq:
That you don’t see a practical difference between “can be” and “almost certainly will be” doesn’t mean that this difference does not exist.
By simple virtue of the fact that the participating schools are almost exclusively religious in nature. (A fact I alluded to in pointing out the disparity between voucher-eligible schools versus universities.) Of course, you could (and probably would) argue that civil rights legislation was unnecessary in the 60’s, because any business establishment could serve black people and treat them equally, even if almost none of them actually did so.
In fact, you’d probably have a better argument if vouchers could be used to go to any accredited school, rather than just the “participating” ones. Anyway, my point was simply that the issue was not so cut and dry as you painted it.
And I was wrong, and I admit it. 🙂
Yeah, because private and parochial schools are just struggling to get by thanks to the unfair competetive advantage given to public schools. Please.
Next you’re going to be bitching about the Pentagon’s “monopoly” on military operations, and the DOT’s “monopoly” on highway construction.
August 23rd, 2005 at 6:56 pm
I don’t think it’s reasonable to force any school to participate if it does not want to. The only legitimate concern of the state is to ensure that the rules are reasonable enough to ensure that all accredited schools can participate, and that there are no structural quirks that would provide any systematic advantages (or disadvantages) to religious (or non-religious, or even anti-religious) schools. The rest should be left to the marketplace.
Please is right. One minute you’re complaining about the dearth of secular private schools, the next you’re acting as though private schools were allowed to compete with public ones on anything close to an even playing field. As it stands, only those who are both willing and able to pay twice can use private schools. Maybe that doesn’t bother you, but the least you can do is admit that the advantage is there.
Not bitching about them, no, but neither do I deny that they are monopolies. Of course they are; it’s just that some monopolies make more sense than others. I’m not sure we need a monopolist on highway construction, but I am pretty sure I don’t want competing armies.
August 23rd, 2005 at 11:39 pm
Xrlq:
Well, that’s assuming the state should be farming out education at all, a topic about which we are bound to disagree.
Actually, I’m doing neither. I was only complaining about the dearth of secular schools in the voucher systems, and was doing so because it’s relevant (well, it is if you think effect is anywhere near as important as purported intent). And as to the “level playing field,” I certainly never intended to make that argument. Private schools don’t even want to compete with public schools on a level playing field. If they did, then they would accept all comers rather than just the best students. Private schools are a niche market, and a lucrative one at that. Lucrative precisely because they are a niche market.
Well, only if you strip away the clear implication of commercial activity, as well as the negative connotations typically associated with the term.
August 23rd, 2005 at 11:40 pm
OK, I think I’m going to have to abandon the use of bold tags on Uncle’s site.
August 24th, 2005 at 12:15 pm
Whaddya mean, “effect?” Are you arguing that voucher systems cause private schools to be overwhelmingly religious/sectarian? If so, how do you explain all those religious private schools in the vast majority of cities, where vouchers are not an issue?
There is no inherently negative connotation in the word “monopoly.” If you think the state (or anyone else) should monopolize something, a monopoly is good. If you don’t, it’s bad. Some of us liberals (in the old-fashioned sense of the word) think monopolies are bad economically because they tend to promote inefficiencies. That problem exists whether the monopolist’s motive is money (Microsoft), power (government schools), or something else. Even if the motive were 100% pure, or the monopoly necessary for other reasons, the inefficiencies would still be there. I’m a strong believer in the military’s monopoly, but I’m under no illusion that it’s run as efficiently as competing enterprises would be – the infamous $700 toilet being one of the best known examples of this. If all I cared about was getting the most bang for my buck – and wasn’t worried about possible externalities such as a civil war – I’d favor competing armies.
On that, I think we can agree. Perhaps we can also agree that Uncle’s spam filter sucks ass.
August 24th, 2005 at 12:19 pm
Hey now, I installed it at your recommendation. And why do you Google bomb using ‘no follow’ tags? Or is that a new WP feature I don’t know about?
August 24th, 2005 at 1:41 pm
No. I’m arguing that voucher programs have the effect of benefiting sectarian schools almost exclusively.
And I’m not sure the government “monopoly” on public schools is about power. If you start from the premise that every child is entitled to an education, and couple that with the understanding that educating the vast majority of them will never be a profitable endeavor, then a truly public public school system makes sense. Am I saying public schools couldn’t be run better than they currently are? Of course not. I’m just skeptical that privatization is the answer. And the returns so far on the efficacy of voucher programs confirm that suspicion.
I haven’t had any trouble with the spam filter, although I’ve definitely been having trouble with it eating/munging HTML tags.
August 24th, 2005 at 1:41 pm
See, like right there. I didn’t use any bold tags in that post above. So where the fuck did the bold come from?
August 24th, 2005 at 2:03 pm
It seems to have something to do with the blockquote. Unlike everyone else, you apparently aren’t fond of using the Enter key to differentiate paragraphs. Seems to be mucking up the html as you’re the only who’s having the problem.
August 24th, 2005 at 2:04 pm
Yup, that seems to do it. Went in and edited your first comment and used the enter key before and after each blockquote tag and the bold went away. Not sure why that is.
August 25th, 2005 at 6:01 pm
It’s a legacy habit. Back in the MT days, it would interpret those extra newlines and put a lot of space in between the blockquote and everything else. So I got into the habit of not putting newlines where I didn’t actually want them.
August 26th, 2005 at 4:14 pm
[…] Borrowing a page from SayUncle’s book, I saw this comment (#28) over in this Evangelical Outpost thread by commenter Boonton: The Constitution is living because some of it has purposefully been kept vague and unclear in order for it to be interpreted in light of a changing society. Discuss. Filed under: Legal Issues […]