Uncommon Denominator

The Newsletter of the Commonweal Institute
www.commonwealinstitute.org



"Ignorance is preferable to error; and he is less remote from the truth who believes nothing, than he who believes what is wrong."
-- Thomas Jefferson, Notes on the State of Virginia


CONTENTS

Talking Points: Against originalism

Wit and Wisdom: Karl Rove in ethics class

Eye on the Right: Financing intelligent design

Quoted! A Marine in Iraq; Bill O'Reilly in San Francisc
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Featured Article: "A Separate Peace"

Happenings: CI conference funding received

Endorsements: Nancy Pelosi

Get Involved: Spread the word; become a contributor




TALKING POINTS

With the ongoing transition in the Supreme Court, we've been hearing a lot about "originalism" when it comes to Constitutional interpretation. This doctrine, espoused by conservative judges Antonin Scalia and Clarence Thomas, along with much of the American Right, including President Bush, holds that the proper approach to interpreting the Constitution is to be guided by the "original" intent of the framers. It is associated (rhetorically, at least) with "strict constructionism," which stands opposed to the supposedly liberal judicial tendency to "legislate from the bench" by pursuing all manner of social engineering and expanding the scope of the federal government in ways the Constitution does not authorize. As a practical matter, the doctrine of originalism leads to restrictions on the federal government's role in American life (particularly on its ability to help people), and - if the new Supreme Court moves sharply in that direction - it could mean the reversal or evisceration of much of the social legislation of the last half century. Far from the promised "judicial restraint," the originalism of Scalia, Thomas, and their ilk conceals an activist, even aggressive, approach to established precedent that would curtail the gradual expansion and protection of individual freedoms which have been the hallmark of Constitutional jurisprudence since the nineteenth century.

As a theoretical matter, and as a matter of just common sense, originalism is seriously flawed. It sounds good -- for it seems to connect us organically with our founding fathers, and it appeals to our gut preference for the "real thing" over the bastardized knock-off -- but originalism is both unworkable and logically inconsistent. To see why, it is necessary to pull apart its central claims and consider them carefully.

The basic idea is that the intentions of the Constitutional framers - James Madison, Gouverneur Morris, Rufus King, et al. - are enshrined in the document itself, that their meanings are unchanging and eternal, and that the duty of scholars, judges, and justices is to figure out what those meanings are and then apply them to matters of law. The problems with this originalist approach are more complex than can be fully addressed here, but that is all the more reason to identify those problems in their broad outlines. Regular Americans, not just constitutional scholars, need to be conversant in why the judicial philosophy of Scalia and Thomas is misguided.

First, the "intentions" of the framers do not form some kind of monolithic slab. The purposes of human beings engaged in serious political activity are always complex, shifting, various, obscure -- even when they are not represented that way. Get a group of them together, as at Independence Hall in 1787, and the complications undergo what the mathematicians would call "combinatorial explosion." There were many people in that room, many ideas, many motives, many conflicts, many compromises, many shifts of perspective. Which intentions do we go with? Those with which they began the process, or those with which they ended it? What about the personal doubts of the framers, even as they signed the Constitution? Should we make room for the views of those figures who were not officially involved in the Constitutional debates, like Thomas Jefferson, but whose views informed the proceedings? What do we with all the bargaining and horse-trading it took to reach consensus? A consensus was achieved, certainly, but about the only thing the framers seemed to agree on (barely) was the need for a stronger federal government than that which had existed under the Articles of Confederation. It is only sensible to conclude, therefore, that when delegates as different in outlook as William Few of Georgia and John Langdon of New Hampshire signed on to the written testament to that consensus, they had very different ideas about how it should actually work.

A second, related, problem concerns how the framers perceived their own intentions and the degree of deference that later generations should accord them. In fact, one of the principles on which there was greater agreement than not was the idea that the Constitution should be a "living document," that it should be able to respond to changing historical circumstances, and that later generations should -- within reason -- apply it flexibly to their particular needs. The founders recognized that they had produced an imperfect, if extraordinary, document and they did not intend for us to be slaves to their worldview. That is why the Constitution allows for amendments, as we all learned in eighth-grade civics class. The framers did not see their intentions as the final word or the only word. And thank God, for else the intentions that produced the three-fifths clause and the fugitive slave clause would still be in force. Those intentions deserved to be superseded by more modern social and constitutional thought. It's called progress.

Let's assume, however, for the sake of argument, that we do want to reconstruct the intentions of the Constitutional framers for guidance on interpreting the law. This presents such a raft of problems that it's hard to know where to begin. But let's start here: Since we can't read the framers' minds, we have to try to infer their intentions, their meanings, their aims, from the words they left us. Immediately, however, we are brought up short by a striking contradiction in the originalist approach. To reconstruct the framers' intentions fully and responsibly, we would have to consult all sorts of writings besides the Constitution: correspondence, diaries, the Federalist papers, retrospective accounts of the debates, and so forth. And what would this reveal? Exactly the kind of chaos that shows how difficult it is to judge intention accurately. So the originalist or strict constructionist imperative is to narrowly limit the act of interpretation to the words of the Constitution itself (where, for instance, there is no written-down "right to privacy"). We are obliged, in short, only to consider what might be called the deconstructive logic of the text - but this is not really an intentionalist method at all. Indeed, it is antithetical to intentionalism because it rules out an investigation of what lies beyond the text. This contradiction between an approach based on what amounts to biographical research and one based on textual analysis cannot be explained away without exposing the political expediency behind much of what passes for "originalist" Constitutional interpretation.

The third major problem with originalism is that it involves a simplistic and misleading view of the nature of language. The meaning of words is not so clear as the originalists would have us believe. The "referentiality" of language, as the linguists would put it, is both historically contingent and intrinsically murky - which means that there is not a transparent and stable relationship between words and the things or ideas they refer to, their referents. In the first place, the meaning of words evolves over time, sometimes dramatically, as anyone who has thumbed through the Oxford English Dictionary can attest. Words such as "queer" (which acquired connotations of homosexuality around World War I) or "web" (whose recent Internet-related meaning now predominates) are obvious examples. But terms of politics and civic culture also evolve over time. Indeed, as Gerald Stourzh has demonstrated in his essay in Conceptual Change and the Constitution (1988), the word "constitution" itself only came to signify "paramount law" in the late 1700s. So while we may think we know what a person meant centuries ago, we have to reckon with the fact that language is dynamic rather than static, and that words are always responsive to their historical and social environments.

Moreover, linguistic meaning is not a simple matter of one-to-one relationships between words and referents. Meaning is ambiguous, subtle, elusive. It emerges from a wide array of psychological and cultural and textual conditions. This is not, let it be said, some kind of postmodern rant. In fact, this view of language arose during the eighteenth century, in the wake of John Locke's seminal insight, in Essay Concerning Human Understanding (1690), that words have no "natural connexion" to things, and that "in their primary or immediate signification, [words] stand for nothing but the ideas in the mind of him who uses them." With a deepening sense of the arbitrariness of words, the eighteenth century began to recognize what Anselm Bayly, in his Introduction to Languages (1758), called the "mazes in language," and to question the received wisdom that language functioned as a mere sluice for reality. Indeed, no less central a figure than the great constitutionalist James Madison, in Federalist no. 37, cited the "cloudy medium" of language as a confounding factor in political discourse. The deliberate straightforwardness of the Constitution, therefore, reflected a desire to clear that cloudiness as much as possible, not a desire to dictate meaning to all subsequent generations. The dry simplicity of the document confirms rather than disproves the framers' belief that their language was an imperfect guide to their meaning.

What all this adds up to, then, is a rejoinder to the claims of conservative originalists and strict constructionists that the job of Supreme Court justice is simply to determine and then follow the intent of the framers as expressed in the text. If that's all there was to it, we wouldn't even have constitutional debates. The fact that we do, all the time, just goes to show that interpreting the Constitution and shaping our law accordingly is a robust, messy, animating process rather than the originalist equivalent of plundering the grave and propping up the corpse of "original intent."

There's one more issue that deserves mention. The conservative constitutional approach of the originalists is akin, both philosophically and practically, to scriptural literalism or fundamentalism. These worldviews are linked by the belief that language transcends place and time, remaining always immutable. One invokes the word of the heavenly father and the other invokes the word of the founding fathers. They are also linked by an excessive deference to authority and by a denigration of the critical faculties that allow us to question authority. This harmony between originalism and Biblical literalism should concern us, because it represents another way - admittedly much less overt than school prayer or intelligent design - in which religion is being smuggled into our national politics and civic culture. Hopefully, just as the "higher criticism" displaced literalism in the nineteenth century as the dominant school of Biblical exegesis, so a more sophisticated legal philosophy will stymie the rise of this latest, equally pernicious literalism.


WIT AND WISDOM


Rove Caught Cheating in White House Ethics Class
Top Aide Seen Looking at Cheney's Paper During Pop Quiz


"Just days after President George W. Bush ordered the White House staff to take what was called a "refresher" course on ethics, his top aide Karl Rove was caught cheating during the first pop quiz given in the course, the White House confirmed today….

" 'The president doesn't understand why Karl would go and do something like this,' one source said on Sunday evening. 'The pop quiz didn't even count that much towards his final grade.'

"But according to the same source, the cheating incident raises an even more perplexing question: 'If you were trying to get a good grade in ethics, why would you copy off Cheney's paper?'"
-- The Borowitz Report



EYE ON THE RIGHT

Now that the Kansas Board of Education, in the grip of anti-science conservatism, has voted 6-4 to include "intelligent design" in the state's public school curriculum, and to change the definition of science to include explanations of "supernatural" phenomena, it is worth taking a harder look at the politics involved. Those politics, it turns out, involved some pretty unsavory methods in the 2002 elections that brought the conservative school board majority to power. Four of these six will come up for reelection next year.

It's well known in Kansas that Attorney General Phill Kline and the six-member conservative majority on the state school board attempted earlier this year to evade the state's open meetings act. The Feb. 8 meetings - where Kline told conservatives he supports placing stickers on Kansas Biology textbooks - were kept secret from board moderates and the public. Six Kansas news organizations have filed suit against the board and the attorney general, and some legislators have asked the Shawnee prosecutor to open an investigation.

Less well known, until now, is the network of interlocking conservative political action committees that have been constructed to skirt Kansas campaign finance laws and channel money to conservatives on the school board.

Kansas law limits contributions to state school board candidates from individuals and political action committees to $500 dollars each primary and general election cycle. But just as they found a way to get around the open meetings act, conservative board members - who believe they are doing God's work - have found a way to get around campaign contribution limits, as well:


* Despite the $500 dollar contribution limit, the online database of the Kansas Governmental Ethics Commission link lists contributions totaling $1,800 to stealth candidate Iris Van Meter from the Free Academic Inquiry and Research Committee (FAIR) during a two month period in 2002.

* Ken Willard, the board member from Hutchinson, reported $2,000 in contributions from FAIR between July 8 and Sept. 20 of 2002.

* Connie Morris, the District 5 board member from St. Francis, reports FAIR donations of $1,000 in 2001 and $500 in 2002.

* Steve Abrams, of Arkansas City, and Kathy Martin both report contributions of $1000 from FAIR in 2004.

* John Bacon, a conservative from Olathe, reports contributions of $1000 from the FAIR in 2002.
How do they do it? These contributions are legal only because they are divided between FAIR's state and federal PACs -- each of which can give up to $500 during the primary and the general election. The state and federal FAIR PACs are astroturf groups (shell organizations that exist only to parcel out money) that share a post office box with the Kansas Republican Victory Fund -- which also has state and federal PACs. Both are associated with and share a post office box with the right-wing Kansas Republican Assembly.

Marilee Martin, the Kansas Republican Assembly Treasurer, is also the Treasurer of FAIR and the Kansas Republican Victory Fund. All three organizations, and their state and federal PACS, list PO Box 626, Topeka, KS 66601 as their address.

According to Federal Election Commission records, the Kansas Republican Victory Fund received $2,900 from FAIR in 2002 and $2,100 in 2004. Although Kansas Republican Victory Fund reported to the FEC that it is unaffiliated with any political party, it nevertheless gives 100 percent of its money to Republican candidates.

In addition to the money she got from FAIR, Iris Van Meter, took in campaign contributions, spread across the primary and general election cycles, of $750 from the Kansas Republican Victory Fund Federal PAC and $800 from the Kansas Republican Victory Fund State PAC in 2002. Van Meter also reports a contribution from the Kansas Republican Assembly, which is run by her son, Kris Van Meteren.

In 2002, Ken Willard, reported contributions of $1,000 from the Kansas Republican Victory Fund Federal PAC and $1,000 from the Kansas Republican Victory Fund State PAC in a two-month period that straddled the primary and general election reporting periods. Connie Morris also reports donations of $500 each from the Kansas Republican Victory Fund state and federal PACs.

Top FAIR contributors include Nancy Hannahan, Harold C. Hutcheson, and Dennis L. Marten who also made substantial contributions to five of the six conservative board members: Steve Abrams, Connie Morris, Kathy Martin, Iris Van Meter, and Ken Willard.

John Calvert, of the Intelligent Design Network, who now seems to have a special relationship with the school board sub-committee which announced recently it will hold Scopes style hearings on evolution later this year, is also a contributor. Calvert made political contributions to Abrams, Morris, and Martin, all members of the conservative sub-committee that has short-circuited the existing curriculum development process in favor of public hearings. Certainly, the privileged relationship granted to John Calvert -- and intelligent design proponent William Harris -- by conservative board members gives the appearance of impropriety.

The ideological divisions between conservatives who support intelligent design or creation science on the one hand and moderates who support evolution on the other has meant that once sleepy state school board elections -- most often run out of pocket by candidates -- are now much more costly.

In 2002, conservatives who were up for election such as Connie Morris raised $18,279. Iris Van Meter, who did not speak to the media during her campaign, raked in the most, reporting $31,539 in contributions. Ken Willard took in $28,959.

The incestuous relationships between FAIR, Kansas Republican Victory Fund, Kansas Republican Assembly, their state and local PACs, and their leading contributors, raise serious questions about whether the spirit of the campaign finance law has been skirted.

In the wake of the pro-intelligent design vote, Kansans may be wondering whether that decision was influenced by large sums of money channeled to conservative board members by a shadowy network of right-wing PACs that have found a way around limits on campaign contributions.

-- Pat Hayes


Pat Hayes is a writer and editor who lives in Kansas. He is married and has two kids who attend Kansas public schools. Check out his blog, Red State Rabble.


QUOTED!

"On the current course we will have two options: We can lose in Iraq and destroy our army, or we can just lose." -- an unidentified Marine lieutenant colonel, on the failure of the American military to train a viable Iraqi security force, as quoted in The Atlantic, December 2005

"Hey, you know, if you want to ban military recruiting, fine, but I'm not going to give you another nickel of federal money. You know, if I'm the president of the United States, I walk right into Union Square, I set up my little presidential podium, and I say, 'Listen, citizens of San Francisco, if you vote against military recruiting, you're not going to get another nickel in federal funds. Fine. You want to be your own country? Go right ahead.
And if Al Qaeda comes in here and blows you up, we're not going to do anything about it. We're going to say, look, every other place in America is off limits to you, except San Francisco. You want to blow up the Coit Tower? Go ahead." -- Fox News Host Bill O'Reilly, on "The Radio Factor," November 8, 2005


FEATURED ARTICLE

The following is an excerpt from Peggy Noonan's "A Separate Peace," which appeared in the October 27, 2005, issue of the Wall Street Journal. (Noonan, incidentally, served as a speechwriter in the Reagan administration. Perhaps, as this article implies, she has finally come around to a recognition that we're all in this together, and that working for the common good is the only responsible way forward).


"I think there is an unspoken subtext in our national political culture right now. In fact I think it's a subtext to our society. I think that a lot of people are carrying around in their heads, unarticulated and even in some cases unnoticed, a sense that the wheels are coming off the trolley and the trolley off the tracks. That in some deep and fundamental way things have broken down and can't be fixed, or won't be fixed any time soon. That our pollsters are preoccupied with 'right track' and 'wrong track' but missing the number of people who think the answer to 'How are things going in America?' is 'Off the tracks and hurtling forward, toward an unknown destination'….

"Our elites, our educated and successful professionals, are the ones who are supposed to dig us out and lead us. I refer specifically to the elites of journalism and politics, the elites of the Hill and at Foggy Bottom and the agencies, the elites of our state capitals, the rich and accomplished and successful of Washington, and elsewhere. I have a nagging sense, and think I have accurately observed, that many of these people have made a separate peace. That they're living their lives and taking their pleasures and pursuing their agendas; that they're going forward each day with the knowledge, which they hold more securely and with greater reason than nonelites, that the wheels are off the trolley and the trolley's off the tracks, and with a conviction, a certainty, that there is nothing they can do about it."
Click here to read the whole article.


HAPPENINGS

Major Funding Awarded for CI-Sponsored Progressive Conference -- The A. H. Zeppa Family Foundation, of Duluth, MN, has generously committed to providing full funding for a major new Commonweal Institute project, Progressive Marketing and Communications: Convening a Working Group to Build Progressive Infrastructure. Marketing and communications represent parts of the nascent progressive infrastructure that will be of immediate benefit in implementing a long-term strategic vision and in moving the national policy and values agenda. In executing this new project, CI will bring together approximately 50 leaders in communications, marketing, framing, media, and strategy from around the country to make decisions about how to market progressive ideas more effectively and how to coordinate progressive communications. The convening will take place in the San Francisco Bay Area in early March, 2006. Invited participants are responding enthusiastically to the potential of this new initiative. A pre-conference website, which will be launched by the end of this year, will make more information available to the wider progressive community. We thank both the Zeppa Foundation and the California Teachers Association for their support. CTA's earlier gift enabled CI to do the preliminary design work and fundraising for the convening project. You can find more information about progressive infrastructure on the CI website, at http://www.commonwealinstitute.org/IssuesPI.htm.

Presentations on Various Subjects -- CI President Leonard Salle had a busy November making presentations to education and civil justice groups. He was invited to Rochester, NY, by the Coalition for Common Sense in Education for several days of presentations and group meetings on strategies to promote public education. Speaking on the topic of "Strategy: It Works for Our Adversaries, It Can Work for Us," he made two presentations at St. John Fisher College, one to a group from the education community, and the other to a consortium of progressive community activist groups. On November 11, Mr. Salle spoke in Carmel Valley, CA, to the Board of Governors of the California Applicants Attorneys Organization about ways in which their professional organization could raise public awareness of problems with the current workers compensation system and push for change. On November 15, Mr. Salle addressed the Governmental Affairs Conference of the National Association of Trial Lawyer Executives, in La Jolla, CA, about the need for more effective public education about the role and value of the civil justice system in American society.


ENDORSEMENTS

"In these challenging times, we need an advocacy think tank like Commonweal Institute to communicate our principles and programs in ways that will resonate with the broad public and empower citizens to take a more active role in our democracy. Commonweal takes a strategic approach to advancing issues in a way that will help decision-makers be proactive in confronting the challenges of the future." -- Congresswoman Nancy Pelosi, D-San Francisco, 8th CD-CA, Democratic Leader of the House of Representatives


GET INVOLVED

If you agree with Nancy Pelosi (see above), there are a number of ways you can help the Commonweal Institute achieve its goals.

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