"Our Imbecilic Constitution": American Idiot II

Sanford Levinson is the distinguished winner of this months American Idiot award, ensuring his place in the pantheon of American Idiots for a lifelong crusade to have the Constitution for the United States of America discarded and replaced with one he approves of. On May 28th of 2012, Levinson wrote an OP/ED piece for the New York Times titled: Our Imbecilic Constitution. Let's take a look at what this idiot considers to be imbecilic:

Advocating the adoption of the new Constitution drafted in Philadelphia, the authors of “The Federalist Papers” mocked the “imbecility” of the weak central government created by the Articles of Confederation.

Nearly 225 years later, critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.

Ignore, for discussion’s sake, the clauses that helped to entrench chattel slavery until it was eliminated by a brutal Civil War. Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.

What do you say we not ignore the "three-fifths" Clause Levinson demands we ignore - "for discussion's sake"- and while we're at it, let's not ignore his redundancy with the phrase "chattel slavery". Let's not ignore Levinson's redundancy because it is important to understand that Levinson is a priest class lawyer who is well versed in the language of tautology.

Now, let's look at the "three-fifths" Clause that Levinson - "an acknowledged Constitutional expert" - declines to name. His claim is that this Constitutional Clause "helped to entrench" slavery, as if slavery was not all ready entrenched at the time the Constitution was written. While I am no fan at all of compromise and have argued in this very site that the "three-fifths" Clause is a perfect example of all that is wrong with compromise, instead of ignoring this atrocity let's take a hard look at it and why it was written.

The "three fifths" Compromise was an agreement between Northern "free states" and Southern "slave states" that allowed for slave owners to count their slaves as "three fifths" of a person for the purposes of apportionment which would determine how many Representatives could be elected for the states, as well as in regards to any direct taxation Congress might impose upon people. Keep this apportionment in mind when we later discuss the House of Representatives. Also keep in mind that Levinson began this little rant against the Constitution by pointing out that this Constitution establishing federalism replaced the Articles of Confederation of Perpetual Union. It is important to keep that in mind because the concept of "three fifths" of a person originated in an Amendment to that Articles of Confederation in 1783.

While little praise, if any, belongs to the "three fifths" Clause, it is extremely important to understand the language of that Clause and why it was written in the way it was:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

~Constitution for the United States of America, Article I Section 2 paragraph 3~

Why the ambiguity of "all other persons"? Why not just state slaves? Of course, had the Founders stated that all slaves were to be counted as "three fifths" of a person any Amendment later prohibiting slavery - precisely as the 13th Amendment does - would have been unconstitutional and irreconcilable with the Constitution itself, but because the "three fifths" clause was written as ambiguously as it was it allowed for the wholly Constitutional 13th Amendment later.

It was, no doubt, the Founders passing an odious problem onto future generations, and it did undoubtedly lead to a Civil War, but for the idiot Levinson to ask us to ignore that "three-fifths" Clause so we could pretend along with him that slavery was not all ready entrenched at the writing of that Clause, is really too much to ask, and one of reasonable mind has to ask why he even brought it up if he intended for us to ignore it? He, of course, brought it up because any person of reasonable mind would agree that the "three fifths" clause was an odious compromise, but why then ask us to ignore it?

Levinson wants us to ignore it because that paragraph is dedicated, among another thing, to the criticism of the Senate rule of only two persons per state being elected to the Senate:

Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota.

Gee, you would think an "acknowledged Constitutional expert" would know that the House of Representatives is apportioned and California has 53 Representatives to Montana's 1. That's right, Montana only has one Representative to California's 53 but Levinson wants us to be outraged because Montana gets to have two Senators and California - the much more populace state - only gets two also! Levinson wants us to think this unfair, but let's ignore apportionment for the House of Representatives, shall we?

Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.

Yes, let's consider this. Of course, Levinson would like us to believe that the Constitution for the United States of America established a democracy and this is why he stresses the consensus opposing the electoral college, but you would think "an acknowledged Constitutional expert" would know that the Constitution established a republic with the express purpose of restraining majorities.

It is worthwhile digressing a bit and taking a look at an earlier OP/ED piece by Levinson regarding the Second Amendment:

If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.

I have pointed to this remark made back in 2008 to compare it with Levinson's arguments in discarding "our imbecilic Constitution" today, and will contrast the 2nd Amendment OP/ED with more of Levinson's most recent and very disturbing arguments in the next post.

Continued...

Continuing....

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.

This, apparently, is the "dynamism" Levinson is so enamored with. The women's right to vote notwithstanding, praising federal income tax, the unconstitutional 17th Amendment of placing the election of Senators - ironically the latter part of a bicameral legislature he believes should be exactly like the House of Representatives as if bicameralism has no meaning at all - into the hands of the voters instead of the much more laborious and slower method of state legislatures choosing Senators, and Prohibition! Apparently Levinson believes the prohibition of alcohol was a shining moment of federalism, and of course what liberal doesn't love the current income tax that has allowed for the monstrous expansion of government?

However, let's dig a little deeper into Levinson's remarks, and look at his phrase: "establishing the legitimacy of the federal income tax". Levinson is speaking of the 16th Amendment with this remark, and one would think that an "acknowledged Constitutional expert" would know that the 16th Amendment conferred no new power of taxation onto Congress, and that the legitimacy of federal income taxes were well established with the Constitution itself that gave Congress the complete and plenary power of taxation. One would think that an "acknowledged Constitutional expert" would know that the 16th Amendment was written in direct response to Pollock v. Farmers' Loan & Trust Co., where the Supreme Court had struck down the income tax portion of the Wilson-Gorman Revenue Act of 1894 because they viewed the income tax as a direct tax on income without apportionment.

One would think that this "acknowledged Constitutional expert" is aware of Brushaber v. Union Pacific Railroad, and Stanton v. Baltic Mining, where Chief Justice White, rendering opinions for both rulings made perfectly clear that 16th Amendment did not allow for a non-apportioned direct tax on income but rather forced the courts to view any future non-apportioned tax on income as an indirect tax where all income taxation inherently belongs. Congress needed no legitimacy regarding income taxation and always had the power to tax income, what they needed was to flex their own muscles at the Supreme Court and make it perfectly clear that a non-apportioned income tax was an indirect tax and not a direct tax on property.

I suspect that this American Idiot Levinson does know all this, but being a priest class lawyer speaking to his laity he wants to believe that you and I are too stupid to know he is equivocating.

What was truly admirable about the framers was their willingness to critique, indeed junk, the Articles of Confederation. One need not believe that the Constitution of 1787 should be discarded in quite the same way to accept that we are long overdue for a serious discussion about its own role in creating the depressed (and depressing) state of American politics.

Of course, the national government under the Articles of Confederation had not authority to impose taxation whatsoever and could only request funding from the states who were under no obligation to oblige. This was the main reason they "junked" the Articles of Confederation, and I sincerely doubt that if we were to "junk" the federal Constitution and replace it with a document that returned to denying the national government any authority of taxation that our American Idiot Sanford Levinson would be in favor of that. This is not why he is advocating a new Constitution, he is doing so to further the expansionist government agenda, and would like all of us to believe that we're the American Idiots.

Levinson begins his N.Y. Times rant by lamenting the dysfunctional nature of American politics then quickly forgets about this dysfunction to argue that we are functional enough to adopt a new Constitution...yeah, right.

It's idiots like him who are domestic enemies of the Constitution. I find it funny that a bozo columnist somehow thinks he's smarter than the guys who sat down over 200 years ago and hammered this out. The fact he thinks we have a "Democracy" is evidence of why he's an idiot.

reply to post by Jean Paul Zodeaux


Hmmmmm, it seems to me, this person has some confusion between the word "Constitution" and "Corruption". Obviously this person is very misinformed!

Thank you so much for putting the time and effort into educating us!

S&F

It is things like this that do make me think that a copy of the French revolution is what is needed.

If only to teach them a lesson.
S+F my friend.

Well stated commentary my friend. As always, a joy to read.

It fascinates me to no end what we, the American public have bought into from these grifters.
That our form of government is a democracy. And the constitution is outdated, and just a dirty old rag we need to toss. That's not to say it couldn't use a little tweaking. But you're right when you say:

Levinson begins his N.Y. Times rant by lamenting the dysfunctional nature of American politics then quickly forgets about this dysfunction to argue that we are functional enough to adopt a new Constitution...yeah, right.

Our constitution and Republic would be just fine if our leaders would take a cue from the likes of Solon quoted below, among others.

Society is well governed when its people obey the magistrates, and the magistrates obey the law.

And I'm not even going to try and add to the other content you've already addressed so well. S&F.

Originally posted by Jean Paul Zodeaux

It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress.

In my opinion two of the worst Presidents to ever hold office and quintessential examples of rampant Progressivism which has directly lead us to the brink of inslovency by their unrestrained approach to governmental over-reach.