A Structural Dilemma of Radical Centrism Thoughtful essay , --see the following from the W Post-- as to be expected from Charles Krauthammer, but , in a way, too obvious. By this time, the lines are drawn between originalists and those who favor the "living constitution" hypothesis. But are these the only possible approaches to the subject ? I will have to say that until Krauthammer's article this was my opinion. But it now is clear that something is missing, actually several things. First, there is the operational factor. "How" one takes either position can make considerable difference. On the Left the dominant school seems to say that the Constitution should be interpreted in such a way that the founding document should be no more than a rough guide and that judges should override the popular will through legislation from the bench. However, this isn't logically necessary. A benign approach --don't ask me for actual examples-- might simply say that any number of Amendments are necessary for reasons that almost anyone can recognize ; absent these Amendments, the judiciary should supply approximations for the sake of justice and better governance. On the originalist side of the ledger, operational views can take the form of strict literalism, the narrowest possible reading, or what may be called "contextualism." In other words, to know original intent is it enough to have access to James Madison's papers alone or do you need to look over any number of documents from the late 18th century ? If you favor the latter view then , clearly, the domain is that of professional history. If you favor the former, the domain is that of The Law. This said, there also are attitudes which shape political objectives. Do you want to totally destroy the other viewpoint, deny it legitimacy, or do you regard it as the loyal opposition, to be argued with but respected ? In such considerations it is not transparent which view is Radical Centrist and which is not. This depends on one's purposes. If the goal is a perceived need for moral housecleaning, viz, American society has gone so far down the road to perdition that nothing less will do, then you will arrive at one understanding. But if your meta-goal is maximum co-operations between the parties, it will be something else. Seems to me we have a dilemma. Intrinsic to RC, we would like to do both. For the moment how to do this is anything but clear. But here is a problem that exists not only considering the Constitution as the focus of attention, but in any number of other areas. For your consideration. Billy =================================================== (http://www.washingtonpost.com/)
Constitutionalism By Charles Krauthammer Friday, January 7, 2011; For decades, Democrats and Republicans fought over who owns the American flag. Now they're fighting over who owns the Constitution. The flag debates began during the Vietnam era when leftist radicals made the fatal error of burning it. For decades since, non-suicidal liberals have tried to undo the damage. Demeaningly, and somewhat unfairly, they are forever having to prove their fealty to the flag. Amazingly, though, some still couldn't get it quite right. During the last presidential campaign, candidate Barack Obama, asked why he was not wearing a flag pin, answered that it represented "_a substitute" for "true patriotism_ (http://thecaucus.blogs.nytimes.com/2007/10/04/obamas-lapels/) ." Bad move. Months later, Obama quietly beat a retreat and began wearing the flag on his lapel. He does so still. Today, the issue is the Constitution. It's a healthier debate because flags are pure symbolism and therefore more likely to evoke pure emotion and ad hominem argument. The Constitution, on the other hand, is a document that speaks. It defines concretely the nature of our social contract. Nothing in our public life is more substantive. Americans are in the midst of a great national debate over the power, scope and reach of the government established by that document. The debate was sparked by the current administration's bold push for government expansion - a massive fiscal stimulus, Obamacare, financial regulation and various attempts at controlling the energy economy. This engendered a popular reaction, identified with the Tea Party but in reality far more widespread, calling for a more restrictive vision of government more consistent with the Founders' intent. Call it constitutionalism. In essence, constitutionalism is the intellectual counterpart and spiritual progeny of the "originalism" movement in jurisprudence. Judicial "originalists" (led by Antonin Scalia and other notable conservative jurists) insist that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries. Originalism has grown to become the major challenger to the liberal "living Constitution" school, under which high courts are channelers of the spirit of the age, free to create new constitutional principles accordingly. What originalism is to jurisprudence, constitutionalism is to governance: a call for restraint rooted in constitutional text. Constitutionalism as a political philosophy represents a reformed, self-regulating conservatism that bases its call for minimalist government - for reining in the willfulness of presidents and legislatures - in the words and meaning of the Constitution. Hence that highly symbolic moment on Thursday when the 112th House of Representatives opened with _a reading of the Constitution_ (http://www.washingtonpost.com/wp-dyn/content/article/2010/12/29/AR2010122901402.html) . Remarkably, this had never been done before - perhaps because it had never been so needed. The reading reflected the feeling, expressed powerfully in the last election, that we had moved far, especially the past two years, from a government constitutionally limited by its enumerated powers to a government constrained only by its perception of social need. The most galvanizing example of this expansive shift was, of course, the Democrats' health-care reform, which will revolutionize one-sixth of the economy and impose an individual mandate that levies a fine on anyone who does not enter into a private contract with a health insurance company. Whatever its merits as policy, there is no doubting its seriousness as constitutional precedent: If Congress can impose such a mandate, is there anything that Congress may not impose upon the individual? The new Republican House will henceforth require, in writing, constitutional grounding for every bill submitted. A fine idea, although I suspect 90 percent of them will simply make a ritual appeal to the "general welfare" clause. Nonetheless, anything that reminds members of Congress that they are not untethered free agents is salutary. But still mostly symbolic. The real test of the Republicans' newfound constitutionalism will come in legislating. Will they really cut government spending? Will they really roll back regulations? Earmarks are nothing. Do the Republicans have the courage to go after entitlements as well? In the interim, the cynics had best tread carefully. Some liberals are already disdaining the new constitutionalism, denigrating the document's relevance and sneering at its public recitation. They sneer at their political peril. In choosing to focus on a majestic document that bears both study and recitation, the reformed conservatism of the Obama era has found itself not just a symbol but an anchor. Constitutionalism as a guiding political tendency will require careful and thoughtful development, as did jurisprudential originalism. But its wide appeal and philosophical depth make it a promising first step to a conservative future. -- Centroids: The Center of the Radical Centrist Community <[email protected]> Google Group: http://groups.google.com/group/RadicalCentrism Radical Centrism website and blog: http://RadicalCentrism.org
