Hobgoblins of Little Minds

This Peter Suderman post, arguing against a “liberal Scalia” of the type Dahlia Lithwick and I would like to see on SCOTUS, is quite irritating:

Scalia’s views are relatively clear and straightforward: We know what words and sentences mean, and that’s what we use when interpreting the law. And as far as the Constitution goes, we not only know what it means, it’s also always meant the same thing, and it’s always going to.

What’s the liberal alternative to this? We don’t know what words mean, exactly, and sometimes we should use other words outside the law, which may or may not mean what they seem to mean, to help us figure out how to understand legislation? And the Constitution may mean one thing today (although it also may not), but either way it might not mean that tomorrow?

There are two obvious issues here. First, this sort of simplistic militancy isn’t exactly a virtue, as Freddie notes in TAS‘ comments. Second, this narrative isn’t even true. As Jack Balkin has argued, no conservative jurist, not even Scalia or Thomas, fully embraces an originalist interpretation. Applied consistently, that approach would invalidate all independent federal agencies (CIA, FCC, Federal Reserve), end state-level application of the Bill of Rights (incorporation wasn’t the original intent of the 14th amendment), and allow for far more discrimination against women and minorities than is allowed under current Equal Protection clause jurisprudence. All of which is why no one applies it consistently. The idea that they’re some coherent, universally applied conservative constitutional theory that Scalia’s propounding is just plain wrong.

Shameless Self-Promotion

On the same day The Crimson publishes a staff ed praising Daschle’s withdrawal, they also publish a comment from me that more or less says those who pushed Daschle out want sick children to die. Could it be that I’m substantially to the left of the rest of the ed board? Perish the thought.

More seriously, I have yet read a convincing explanation for why Daschle’s tax-problems are relevant to his specific job. Ezra’s piece on the problem they create for Obama’s campaign message is right, of course, but in more pure, “will this make Daschle a worse HHS secretary” terms, I’ve yet to hear a cogent argument. Geithner’s withdrawal would have made sense; it’s a bit weird for the nation’s chief tax officers to have tax issues. But HHS?

Anyway, at this point I think putting Podesta at the Office of Health Reform and Kitzhaber at HHS is probably the best option. Sebelius would make a better conduit to Congress than Kitzhaber, but we really need her to run for Brownback’s open Senate seat in 2010. Moreover, if Obama convinces Podesta to join OHR, that’ll be where the work of selling the plan is centered, not HHS, leaving Kitzhaber to play a more administrative role.

How It Is, and How It Could Be

For someone who’s read Hume – or at least has a Quoteboy who’s read him – George Will really doesn’t seem to grasp the distinction between is and ought:

The D.C. House Voting Rights Act will give the District a full voting member in the House of Representatives. The problem is, or should be, that although the Constitution has provisions that allow various interpretations, the following is not one of those provisions: The House shall be composed of members chosen “by the people of the several states.”

And, of course, Congress next could give the District two senators. Which probably is the main objective of the Democrats who are most of the supporters of this end run around the Constitution. In the 12 elections since the District acquired, by constitutional amendment, the right to allocate presidential electoral votes, it has never cast less than 74.8 percent of its popular vote for the Democratic presidential candidate. That amendment, the 23rd, stipulates that the District shall allocate the number of electoral votes to which it would be entitled “if it were a state.” If.

Will seems to be under the impression that there’s some massive group of ignorant liberals who think that DC is, currently, a state. He’s wrong, of course, but that’s not really the issue. The question is whether DC should be a state. Referring to constitutional provisions doesn’t answer that question. Hell, explicitly partisan and/or racist arguments against DC statehood would at least be relevant to the discussion. What the Constitution says is simply beside the point.

I’d be more sympathetic to the position that we need a full-fledged constitutional amendment were the amendment not ridiculously unwieldy and stupid to begin with. But it is, and so we’re left with things like the D.C. House Voting Rights Act as the next-best option if we don’t want to leave 500,000 citizens without representation. Apparently Will thinks that strict adherence to the anachronistic constitutional provisions on this issue is worth disenfranchising half a million (mostly black, mostly poor) people, but that shouldn’t surprise anyone.