The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Lunch With Noah Rothman

Posted on | April 7, 2015 | 83 Comments

by Smitty

You may have seen this a few years back:

That ad comes to mind reading Noah Rothman over at Hot Air as he surveys a few recent URLs concerning the Convention of States notion. Rothman makes a fair point: there is no risk-free way to revisit our founding document:

For conservatives who ostensibly venerate the Constitution, it is odd to see so many of them fail to acknowledge that proposing it’s[sic] complete revision undermines their political position dramatically. Displaying respect for the Founders’ ideals and creating the conditions whereby their work might be entirely demolished are mutually exclusive.

Do you mean the way Wilson planted the IED in the form of Amendments 16 & 17, plus the Federal Reserve Act back in 1913? Or do you mean the way the size of the House froze in 1910, making our government substantially less representative?

Many on the right have contended that a Convention of States is distinct from a constitutional convention. What’s more, they might say, that process could be the only way to rein in the unelected elements of the federal government, like the judiciary or the nation’s unwieldy and proliferating regulatory agencies. Some on the right contend that the Constitution has been so perverted that it is already essentially defunct. But these same conservatives, who often lament the fact that Republican lawmakers are so regularly rolled by left-wing organizations and liberal politicians, would be foolish to vest in these GOP officeholders the authority to remake the system entirely. They would quickly find that conservative politicians who regularly fail to outmaneuver liberals in Congress don’t find their luck has improved on the convention floor.

OK, so: do the homework. Got it.

From a conservative perspective, the ideals and priorities of those who came of age in the Enlightenment are vastly superior to the self-obsession that masquerades as political principle today. The document that emerges from a modern convention would not look anything like the 18th Century accord that harnessed human imperfection and utilized one man’s basest impulses to check another’s. That divinely inspired document, while perhaps flawed and frequently misinterpreted, remains preferable to the technocratic, anti-federalist charter that would emerge from a 2015 convention (presuming that anything at all could possibly pass such a body).

Perhaps I’m putting too fine a point on it, but I wouldn’t go further than “divinely informed”, and even that’s a stretch. The Constitution is a secular product. Full stop.
“preferable to the technocratic, anti-federalist charter that would emerge”
Again, that’s precisely where Wilson’s Folly has taken us. The guy at the table is choking. Technology is seeing progressively oppressive use. Technology should liberate, instead.

When liberals like Justice Ruth Bader Ginsburg gush over national charters like South Africa’s 19-year-old constitution, they are often only fetishizing the new and the foreign. That’s a nagging and unattractive trait that conservatives laudably fail to entertain. The right’s frustration with the current state of affairs cannot be satisfied by attempting to change the rules of the game. To convene a Convention of States is to open a Pandora’s Box.

And you, young apprentice, are caught between the Scylla and Charybdis.

It’s time for some bold, Tea Party-driven Heimlich action to dislodge the Progressive projectile currently choking our politics. Lead, follow, or get the focaccia out of the way, Noah.

Category: Constitution, Hot Air

Comments

83 Responses to “Lunch With Noah Rothman”

  1. Squid Hunt
    April 8th, 2015 @ 12:28 pm

    Yeah. States like Indiana? Because states never feel political pressure.

  2. K-Bob
    April 8th, 2015 @ 5:00 pm

    The convention of 1787 in Philadelphia was:

    A) Called under the Articles of Confederation, and was fully legal and not unusual in any way, since similar conventions of states had already been held. Also, under the Articles, states were entitled to hold conventions outside the framework of the Articles, and did so on several occasions.

    B) Called at the recommendation of a prior convention in 1786, the Annapolis Convention, which recommended that the states take a serious look at provisions necessary to “render the constitution of the Federal Government adequate to the exigencies of the Union”

    The delegates (actually each delegation sent to such a convention is given a “commission” by their respective legislatures so they should more properly be called commissioners) were empowered by their states to discuss the entire framework.

    They did exactly as intended, and discussed the constitution (literally, the “makeup”) of the United States. They drafted the articles and titled it exactly that.

    But more to the point, under the terms of the Constitution as ratified, states may not call conventions outside the framework, and may not scrap the existing instrument. They may only propose amendments.***

    And a long-standing concept of contract law is that you may not propose a new section of a contract that essentially invalidates all the others unless you have specific language in the existing contract that entitles you to do so. (You may, of course violate the existing terms and start over if everyone agrees not to sue to prevent it. The states could attempt such a maneuver, but it would not be legal, and could involve war.)

    So it’s not like Harry Reid’s shenanigans where he replaced the entire text of an existing, House-originated revenue Bill, and turned it into Obamacare as if it were merely an Amendment to the bill. They may have gotten away with that in the Senate, but you can’t do that under the Constitution. Besides, good luck getting such an abomination ratified.

    ***I’m guessing that a proposed Amendment could be drafted that had language that calls for a specific Constitutional Convention to discuss a new framework, but that would have to be ratified. I seriously doubt such an Amendment could be ratified. No one wants a Constitutional Convention (other than a few crackpots and University leftists who don’t have to run for office).

  3. K-Bob
    April 8th, 2015 @ 5:19 pm

    While I think I agree with the point you are making, I’d probably quibble over word choice. (Not worth discussing, though.)

    I’ve always felt that it was a bit of sublime genius for Jefferson to use the word “Creator” instead of “God” in the second sentence of the Declaration. Atheists are thus held to inherit the same unalienable rights as the rest of us, regardless of whatever agency they believe created them.

    Also, since that sentence follows the opening sentence, where Jefferson explicitly referred to “the Laws of Nature and of Nature’s God,” it makes doubly certain that God may not be removed from the foundational principles, even where people choose not to believe in His existence (they can cling to “Laws of Nature”).

    So yes, our founding documents are both a) secular with regard to the institutions and laws of man, and b) proactively Christian in that they embody and encompass Christian belief and doctrine, which itself contains (and this is the important part) respect for properly moral secular institutions of man, and which pointedly limits the degree to which Christians may interfere with the beliefs and institutions of others.

  4. theoldsargesays
    April 8th, 2015 @ 5:20 pm

    Because it’s what we do?

    What happened prior to the age of exploration, I wonder?
    Did we invent this raping ( meaning in the braodest sense of the word, not just “rape rape” or “real rape” ) of indigenous peoples, the environment and natural resources of newly discovered lands?
    These are, of course, rhetorical questions but the SJWs of the world would answer “YES!”

  5. K-Bob
    April 8th, 2015 @ 5:23 pm

    Yes.

    I’m not talking about Congress. Look who Reagan had to accept as his VP, for instance. Also, he ended up with a Bush guy as his Chief of staff. That was instrumental in the marginalization of the folks among the Reagan coalition. who actually understood Ayn Rand. The undermining began on day one.

  6. Quartermaster
    April 8th, 2015 @ 7:36 pm

    I understand where you are coming from. My point is that it’s a quibble to say it’s not a constitutional convention when the function is exactly the same as the original constitutional convention.

  7. Art Deco
    April 8th, 2015 @ 9:15 pm

    Discussed in published work of Walters, of Milton Friedman and Anna Schwartz, and of Barry Eichengreen.

    There was tremendous deflation during the three years and change running from the summer of 1929 to the spring of 1933.

    You had a rapid increase in the demand for real balances while the monetary base remained fixed and M1 was imploding as banks failed and demand deposits disappeared or were tied up in bankruptcy proceedings.

    One of the Roosevelt Administration’s tonic acts was to discontinue the convertibility of the dollar into gold and devalue the currency. You had a resumption of economic growth almost immediately, and quite rapid growth from the spring of 1933 to the end of 1936.

    See Walters on this point: the British recovery began immediately consequent to the end of the gold standard and the devaluation of the pound in September 1931. The U.S. stuck with gold for another 18 months. The economic contraction extending from the summer of 1929 to the summer of 1932 was violent, with real production declining at an annual rate of 10% per annum. A stabilization was achieved co-incident with attempts at open market operations in 1932 and the work of the Reconstruction Finance Corporation. The economy did not return to grown until the following year.

    Britain had troubled labor markets (among other things) prior to the Depression, so was at the outset in a worse situation than the U.S. However the contraction occurring during the Depression was in Britain fairly mild (losses in rates of industrial production of around 5% v. nearly 30% in the U.S. between 1929 and 1932).

    We need good monetary stewardship. We do not need gold. There has been one notable attempt in recent decades to introduce updated versions of the gold standard. That would be Argentina’s currency board. Argentina suffered declines in production on the order of 19% between 1999 and 2004. We needn’t go there.

  8. Art Deco
    April 8th, 2015 @ 9:20 pm

    Ayn Rand only had a laconic interest in practical politics. She also had no use for Ronald Reagan. One of her proteges, Alan Greenspan, held a position in the Ford Administration and she was vociferous that she preferred Ford to Reagan.

    One of the appealing aspects of her executors (Peikoff, et al) is that they’ve never had much time for isolationism and magical thinking of much libertarian discourse that the Reason Foundation and especially Ron Paul engages in.

  9. Art Deco
    April 8th, 2015 @ 9:26 pm

    The vice president was made use of as a domestic advisor by Reagan with no specific portfolio. It’s a largely ornamental position and no recent President other than Gerald Ford has sought to give his vp a cabinet position or direction over aught but inter-agency committees and the like.

    As for ‘marginalization’, you sound like Howard Phillips, who bitched and moaned in 1982. He did so because he was alone. Reagan had to cut deals with a Congress he did not control. If you were expecting policy designed by objectivists, you were bound to be disappointed.

    While we’re at it, Donald Regan was not a Bush man but an investment banker with no previous history in public office. David Stockman’s complaint was that Regan invariably played to R. Reagan’s most pig-headed instincts and sabotaged the rest of the staff (including Ed Meese) when they wanted the President to cut a deal with Congress.

  10. Art Deco
    April 8th, 2015 @ 9:30 pm

    The entire committee structure of the House of Representatives was controlled by the opposition throughout his eight years in office and he never had a supermajority in the Senate to get round it’s parliamentary rules with regularity nor would the Republican Senate caucus ever consider eliminating filibusters.

    The notion that wire-pulling back stabbing Rockefeller Republican were what was sabotaging Reagan is chuckle-worthy.

  11. K-Bob
    April 8th, 2015 @ 11:12 pm

    Wow. Escalate much?

    I “sound” like me. My claims have nothing to do with Howard Philips or any other name you wish to drop.

    We all know what position the VP is, thanks. What you seem determined to ignore is that it’s a springboard to running, and usually winning, the party’s primary after the current President’s two terms are up. It’s also a very good position to occupy when building support for your point of view within the party apparatus, AND making sure your people know you helped them get their jobs in the administration and in various departments of government. Bush 41 undeniably had a great deal of success at this.

    Your examples are not germane. If I had somehow claimed none of Reagan’s original team remained, or if I had somehow claimed Reagan didn’t need to work with a difficult and often hostile Congress, or whatever it is you seem to think I wrote, then maybe your examples would be of use.

    Further I have no idea why you seem so determined to push back against historical fact. Reagan staff began making plans to depart as soon as they could see that they were being elbowed aside. After two short years, the more libertarian faction was greatly lessened. That didn’t just “up and happen.” People don’t leave when they feel like they are fully involved in the formation of policy and have future on the team.

    Look, all I did was make a casual observation regarding a well-known fact of Reagan’s administration and the Bush faction. You seem to be really worked up over it.

  12. K-Bob
    April 8th, 2015 @ 11:52 pm

    But that point is what I refuted. It is not exactly the same at all. The only similarity is that they would both be called conventions, *if* that’s what the folks who wanted to go off and have their own “Constitutional Convention” wanted to call it.

    Other than that, the concepts are very different.

    An by, “Folks who wanted to go off and have their own,” I mean to underscore that us folks who hang out here at TOM could say, go off and hold our own little Constitutional Convention. We could be as serious as a heart attack about it. But it would be as recognized under the law about as much as the presumed “Con-Con” that the neo-confederates go on about. In other words, not at all.

    A Convention for Proposing Amendments is what many of the Founders insisted be included in the Constitution; it was expressly to make such a limited Amendment process fully legal, and that such Amendments would become as “final” as the rest of the Constitution.

  13. K-Bob
    April 9th, 2015 @ 12:11 am

    Yeah, I know about her dislike of Reagan. She was strangely self-iconoclastic.

  14. Quartermaster
    April 9th, 2015 @ 5:06 am

    I know you think you did, but you didn’t. You are quibbling.

  15. Quartermaster
    April 9th, 2015 @ 5:18 am

    Feel free to chuckle all you like.

  16. Quartermaster
    April 9th, 2015 @ 5:29 am

    Friedman pointed out that our Gold reserve was increasing during that time. It was not necessary to disconnect from convertibility, just issue money in proportion to the Gold we had, which the Federal Reserve did not do. Up to that time, The New York Federal Reserve took care of such things. However, the President of the NY Reserve (the branch heads were called Presidents then, unlike now) was removed and the issuance of money centralized, and money issuance was not done. The economy deflated as a result.

    It is true that growth started quickly, but whether or not it was actually connected with that isn’t known. The growth was still anemic, and regressed over the next several years to the point that it was actually worse in 1938 than in 1932.

  17. Art Deco
    April 9th, 2015 @ 7:50 am

    it’s a springboard to running, and usually winning, the party’s primary after the current President’s two terms are up.

    Since about 1960, yes. Prior to that, no. You can run down the list from 1804 to 1956 and you can find about three examples of a quondam vp nominated to compete for the presidency when he had not succeeded to it, one of them running on a 3d party line and one as a factional candidate after the Democratic national convention deadlocked. The two precedents when Bush was being considered would have been Richard Nixon and Hubert Humphrey, both of whom lost in the 1st instance. Nixon did win the nomination 8 years later, but it required a perfect storm for that to happen.

    Further I have no idea why you seem so determined to push back against historical fact.

    I’m not. I’m pushing back against your historical fictions. Liberal Republicans were not all that numerous in 1982 and they were the least of the impediments Reagan was confronting. As for George Bush the Elder, he was always the sort who had his finger to the wind and made it a point to stay out of conflicts with others in the Administration.

  18. Art Deco
    April 9th, 2015 @ 8:02 am

    It is true that growth started quickly, but whether or not it was
    actually connected with that isn’t known. The growth was still anemic,
    and regressed over the next several years to the point that it was
    actually worse in 1938 than in 1932.

    Nope. Real gdp was increasing at 9% per year from the spring of 1933 to the end of 1936. There was a secondary contraction in 1937 and 1938, but the year-over-year decline in production (comparing 1938 to 1937) was < 4%. Per capita domestic product had by 1939 returned to 1929 levels and had returned to the long-term trendline by about 1941.

  19. Quartermaster
    April 9th, 2015 @ 10:18 am

    The stats you quote don’t add up to me. Things were still horrific during that period, and all the graphs I’ve seen, while showing growth, don’t show it at that rate, and show the 1938 level as worse than 1933. Things did not really start to solidly recover until we started ramping up for war production in the late ’39 time frame.

  20. K-Bob
    April 9th, 2015 @ 12:39 pm

    It’s a fiction that people left Reagan’s team? That the libertarian-minded Republicans were the ones that left and more Bush-style Republicans were the ones that took their place? That makes no sense. Might as well claim Reagan lost the election.

  21. K-Bob
    April 9th, 2015 @ 12:42 pm

    In once case you can dream up a new Constitution and call it a peanut butter sandwich if you want. No one will treat it as law, no matter how hard you try to sell it.

    In the other, you can only Amend the existing Constitution, and such amendments must be ratified individually. Ratified Amendments will become part of the supreme law of the land.

    No, no difference whatsoever.

  22. Quartermaster
    April 9th, 2015 @ 1:02 pm

    As I pointed out previously, the original convention was called to propose amendments to the articles of confederation. That is exactly what they did. The Constitution of 1787 was sent to the states as an amendment. Another constitutional convention, one called by Congress upon application of the states, will amend the present constitution.

    Given the present legal climate in this country, I think there is as much chance of an Article 5 convention solving the problem as staging a communist coup would solve the problems of this country. The left will still treat it like toilet paper.

  23. K-Bob
    April 9th, 2015 @ 1:35 pm

    As I pointed out that is exactly NOT what they did. They met specifically to discuss the framework, not amending the Articles.

    It was not sent as an amendement to the states. It was sent as a Constitutional framework that had to ratified under it’s own terms, not under the terms of the Articles.

    There can be no, “Another constitutional convention,” without a nice little war first to tear everything down so people are force to start over from scratch.

    Your last sentence goes to the “will it be enforceable?” question. The answer is, yes, the states have the ability to enforce it, just as they have the ability to conduct elections, determine who can be on ballots, and many other important issues related to federal government.

    If the CoS managed to get an amendment ratified that allowed a state’s legislature to recall a Senator, do you imagine any scenario where the Senator so recalled would “keep” his seat in the Senate when the Secretary of State for that state has validated his or her replacement?

    It would not happen. The Senator would be relieved, and his appointed or elected replacement would be seated in his place. Any attempt to stop it could lead to war rather quickly.

    So yes, the new Amendments would be enforceable, and the left would try to undermine them in various ways. But specific remedies are difficult to undermine. It’s why I still have guns.

  24. Quartermaster
    April 9th, 2015 @ 1:40 pm

    It’s a well known story that the convention “escaped its cage.” They realized that the optics weren’t good, and so the new constitution was sent out as an amendment.

    None of this changes what I’ve pointed out. You’re simply quibbling over a name.

  25. Art Deco
    April 9th, 2015 @ 2:10 pm

    People change jobs all the time, K-Bob, including Reagan’s intimates. Were I too look down the list of cabinet secretaries et al to find an example which fit your thesis, the best I might come up with would be Howard Baker replacing Donald T. Regan as chief of staff or Ed Meese being replaced as attorney-general or Lauro Cavazos replacing William Bennet as secretary of education. These were late in the day and Regan and Meese had issues unrelated to their policy preferences.

    The Republican Party is an omnibus of people dissatistied with what the regnant liberal consensus is, so you have various elements in disagreement. You seem to think there is some cabal which keeps pulling the football away from you. The nomination process is much more formally democratic than it was in 1964. What do you get? Opportunists, Capitol Hill fixtures, legacy pols, &c., because the 20 million or so adult Americans who vote in Republican primaries have an affilnity for those types, all of which is to say the Republican electorate are not who you think they should be. (While we’re at it, the two or three consequential Republican presidential candidates post-Reagan who do not fit into those categories above get no respect in comboxes).

  26. Art Deco
    April 9th, 2015 @ 2:22 pm

    The labor market was fairly damaged at that time, and did not properly recover until the war, but those are the production figures. You can check the BEA figures yourself.

    Real GDP in 1937 currency units stood at $65 bn for calendar year 1933 and $93 bn for calendar year 1937. That’s a mean rate of increase of 9.3%. That for 1938 was $90 bn, or 3.3% less than 1937. More granular data would have showed quarters in 1937-38 where the rate at which goods and services were generated was notably less than $90 bn per annum. That annual figure reflects some quarters of contraction and some quarters of rapid expansion.

    Of course, unemployment was severe and a mess of labor was stashed in low productivity service jobs at the WPA.

    While we’re at it, the mobilization for the war began in fiscal year 1940/41, not 1939.

    —

    You’ve got one out. You can go the full Patterico and tell me that production statistics are nonsense because Thomas Woods said so and contradicting Thomas Woods is an ‘argument from authority’. Of course, if you reject quantitative data, you cannot have much of a discussion of social life beyond theory spinning.

  27. Quartermaster
    April 9th, 2015 @ 2:44 pm

    I’m not looking for an out. I’m willing to grant you could be right. The period is not one I’ve studied closely.

    I respect Thomas Woods, but don’t think he’s infallible.

    Provisions for war production had started about the time the Brits and Germans started shooting. It is true, however, that full mobilization was not started until FDR had the full blown intention of getting us in too.

  28. McGehee
    April 9th, 2015 @ 3:59 pm

    So politicians can be cowards. For this you want to surrender?

  29. K-Bob
    April 9th, 2015 @ 5:12 pm

    You are lost in the tinfoil-hat weeds of your own assumptions. What I “seem to think” is that a historical fact is what it is. That’s all there is to it.

    Now you’re inventing mysterious rationales why I would think so. You aren’t even making sense. You’ve tried tying all sorts of unrelated crap into the mere mention of a simple fact. I have no idea why this is such a problem for you, and frankly, I’m past bored with it.

    I let the facts speak for themselves. I’ll leave the wild eye theories and presumptions of strange motive to you.

  30. Squid Hunt
    April 9th, 2015 @ 5:21 pm

    I think you should probably put my comments back in context and realize I said nothing of the sort.

  31. K-Bob
    April 9th, 2015 @ 6:27 pm

    That “well known story” turned out to be false. If you read the article I linked, you’ll see that the history of the conventions held prior to the Constitutional Convention, as well as the documents of commission for the delegations and the Congressional Record have shown that the story is bogus.

    The delegates were empowered by their respective legislatures to discuss a framework for the constitution (literally “the makeup”) of the republic. That’s a matter of record. The Convention was called at the suggestion of the Annapolis Convention to discuss defects in the Articles. The Annapolis Convention Resolution proposed, “To take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” (Emphasis mine) So that is also a matter of record.

    Bear in mind the Union itself was under threat of dissolution, and even Congress eventually got on board the idea of a convention, although their recommendation was for amendments to the Articles. Some in Congress wanted the Convention to be plenipotentiary, so it wasn’t merely a case of grudging support. All of this is a matter of record.

    The commissioners in Philadelphia did not exceed their mandate. It was not a “runaway convention,” and the Federalist papers showcase the entire discussion held in the ratification process. No one in those discussion claimed it was an exceeded mandate. No one claimed it was a change to the Articles. No one claimed the very idea of the convention was wrong. And to your point, the Constitution was most definitely NOT presented as an amendment to the Articles.

    The folks who were vocal opponents of ratification were doing so based on the subject matter or lack thereof within the document itself, not on whether such a process was legitimate.

    It’s not the name that matters. You’re the one who seems determined to make that an issue. What matters is what you can and can’t do under the supreme law of the land.

    One thing you cannot do is propose a new Constitution. You cannot do it by Amendment directly, either. The “Con-Con” alarmists keep claiming otherwise and it’s a total fabrication. They are either willfully ignorant, unable to comprehend the history of the framing, or they are simply lying.

    The Convention for proposing Amendments that is being urged by many of us cannot create anything but Amendments to the existing document. As a matter of accepted contract law, they cannot have one Amendment that replaces the entire Constitution with something new. That is what the Con-Con alarmists claim can happen, and they are simply incorrect.

  32. Quartermaster
    April 9th, 2015 @ 9:22 pm

    You are welcome to believe what you will. Continue your quibble. I won’t argue with you any further as it isn’t worth it.

  33. K-Bob
    April 9th, 2015 @ 11:48 pm

    You can be as dismissive as you wish. You seem to be majoring in that lately. It’s interesting that on perhaps the most fundamental issue of our entire founding document (namely, it’s legal basis), you seem to think it’s a mere quibble.

    If you’re that dismissive of such an important factor of the Constitution, it makes it hard to take you seriously when you weigh in on anything else relevant to the document.