Sudden Literalists

It’s really silly for people to shriek “but it’s not in the Constitution!” at this point in time. Abortion and gay marriage are not in the Constitution, and it took some very inventive arguing to pretend that they are and that the Founding Fathers wouldn’t have died of horror when presented with either concept.

But it’s still a fantastic thing that these inventive arguments were made and we now have these really wonderful things as a result. We are the side that’s all about “oh, it’s ok to see in the Constitution what’s clearly not there because it’s a living breathing document that should change in the direction that the times demand.” What were the chances that nobody else would want to adopt this argument the moment it was convenient?

I missed all the news yesterday and then woke up to a bunch of scandalized, prissy voices in my feed that have suddenly discovered a profound respect for the literal interpretation of the Constitution.

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29 thoughts on “Sudden Literalists”

  1. It’s very easy for you to call everyone “prissy” and “hysterical” when you know people aren’t trying to threaten your rights or that of your (putative) children. Or when you don’t belong to a group which had their citizenship rights revoked and then reinstated

    Were either you or N citizens of the United States when Klara was born? Because if you weren’t, she gets her natural born US citizenship from the 14th amendment, specifically the ruling in United States v. Wong Kim Ark.

    It’s really silly for people to shriek “but it’s not in the Constitution!” at this point in time. Abortion and gay marriage are not in the Constitution, and it took some very inventive arguing to pretend that they are and that the Founding Fathers wouldn’t have died of horror when presented with either concept.
    Are you some kind of originalist now? You’re conflating “in the Constitution as an amendment after the Bill of Rights” with “what would the Founding Fathers think.” And no, you can’t void constitutional amendments by executive order.

    Speaking of which: did you vote yet? You might as well make the reanimated Founding Fathers die of horror and spin in their graves once again by voting. 🙂

    I dropped off my mail ballot on Friday at the elections office. The parking lot was full and the poll workers told me there had been a steady stream of people all day.

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    1. The guy I linked to isn’t threatened by anything in the least.

      The US citizenship isn’t an end-all and be-all for us. That’s not how we organized our lives. So it would be hypocritical of me to fret for myself.

      But that’s not the point. The point is that this argument is dead. You can’t say that the Constitution is endlessly flexible when it’s convenient but inflexible when it stop being convenient.

      I’m going to vote on election day because I want to experience collective voting for the first time ever and the official election day. It’s going to be a good day because Rauner will be gone.

      I’m not so sure Hawley will lose, unfortunately, do there’s that.

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      1. The guy I linked to isn’t threatened by anything in the least.

        The US citizenship isn’t an end-all and be-all for us. That’s not how we organized our lives. So it would be hypocritical of me to fret for myself.

        I think it’s great that you, Klara and N have multiple citizenships or can claim them.

        But that’s not the point. The point is that this argument is dead. You can’t say that the Constitution is endlessly flexible when it’s convenient but inflexible when it stop being convenient.
        You just made up a straw argument. Constitutional amendments are difficult to pass by design.

        What alarms me is the Overton window shifting.

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        1. My argument is that now that the SCOTUS is stacked to favor conservatives, we must expect a lot of creative interpretations of the Constitution that favor any and all conservative causes. And we won’t be able to say anything without looking like total hypocrites because our most impressive gains of the past half century are based precisely on such creative interpretations.

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  2. Birthplace citizenship isn’t a new thing in the US. That’s why it was — and still is — an issue that some hospitals in the south were refusing to issue birth certificates for babies born in the US to undocumented immigrants. This is actually in the constitution, and has been since 1898. There are ways to change this, but it’s not exactly an easy or simple process — and the Supreme Court has already set a precedence of birthright citizenship. The ways to change this are neither simple nor fast.

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    1. I have nothing whatsoever against birthright citizenship. As has been pointed out, my child is a birthright citizen. But I believe that there are people who are not entitled to make the argument based on what the Constitution does and doesn’t allow. I’m one of these people since I’m very much in favor of gay marriage and abortion rights. Since we’ve decided it’s ok to attach any meaning that’s convenient at the moment to the text of the Constitution, let’s all live with the consequences, both good and bad.

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    2. “The ways to change this are neither simple nor fast.”

      I suspect that this is mostly a way fro Trump to motivate his base by making public an issue that’s been bubbling underground for a while now.
      I don’t anticipate any real change – the US public is far too divided and undisciplined to be able to get an amendment to the constitution passed. Lacking a serious change in political culture the days of amendments are over.
      This is why so many (on both sides) are searching for extra-constitutional ways of doing things – they know amendments won’t happen so they want a god-daddy figure to change the rules for them.

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      1. I don’t believe anything will happen either. But this is an early warning that the game of creatively interpreting the Constitution is now going to be played by the conservative side just as aggressively as it has been played for decades by the liberal side. And there’s no argument that can be made against this creative game-playing that won’t reek of the rankest hypocrisy.

        This is what comes from having no organizing principles and relying solely on the expediency of the moment. But the real problem is that liberals can’t have organizing principles because that would challenge fluidity. So it’s a trap of their own making.

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  3. Birthright citizenship is the exception in the world and came into being at a time without cheap worldwide travel and the birth tourism industry. There’s room to talk about a (non-retroactive) change in policy without hysteria.

    My preference would maybe be to end automatic birthright citizenship so that non-citizen parents of newborns would have to apply but that would be easy for long term legal residents (such as green card holders).

    The mirror image is that the children of American citizens born abroad do not have automatic citizenship and need to apply to have the baby’s citizenship recognized within a specific time frame (as of around 10 years ago when I knew an American who gave birth in Poland).

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        1. Of course. But that’s exactly what I call creative interpretation. You can find support for absolutely anything whatsoever in the text if you want to. It was naive to think that only one side would want to play this game.

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          1. “creative interpretation”

            My favorite example of double-think were conservative literalists who tried to pretend the 9th amendment didn’t exist (in final form: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”)

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            1. The whole recent freakout over Kavanaugh was motivated by the fear that a conservative majority on the court would start interpreting the Constitution in a conservative direction. But when I say, here it is, it’s going to happen, everybody freaks out and says I’m hurting babies. This is beyond ridiculous. Are people not remembering what happened 3 minutes ago?

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  4. Clarissa loves to call people names. I assume she’s doing it to get clicks. For those of us who have children whose rights are threatened, yes, it’s very hurtful. For those whose rights are threatened, I imagine it’s also hurtful.

    It’s true that Clarissa’s own child might well be threatened, but I assume either she thinks her wealth will protect her in this case, or she just doesn’t care — this is all a game to her, and the clicks are worth it.


    https://polldaddy.com/js/rating/rating.js

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    1. Buddy, you are projecting. If you are interested in clicks – and I actually fear them immensely – I’ll give you a couple of suggestions. What brings clicks is daily wailing about the fascist evil totalitarian evil fascist Russian spy evil fascist Trump. Try this and you’ll be super popular.

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      1. We have a saying where I come from: “The boys throw stones in jest, but the frogs die in earnest.”

        You have literally said on this very blog that you call people names and say outrageous things in order to draw clicks. So don’t play innocent with me.

        My kid is one of those who will suffer for the evil bullshit you are putting out in the world.

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          1. I have no power to pass any legislation, so how will my expressing an opinion that an argument doesn’t hold water make kids suffer?

            God, how I hate this overwrought bleating. And the attempts at emotional blackmail on behalf of imaginary kids are pathetic.

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        1. Buddy, get yourself under control or I’ll ban you. Your kid or any other kid won’t suffer because somebody said something on a blog. He will suffer though if Daddy turns into a ranting maniac. So get a grip, ok?

          I did want to have a popular blog and self-promoted a lot. But that was years ago. Since then, a bunch of earnestly dying frogs won the culture war and now I’m terrified of saying anything that makes them feel earnestly threatened. Which is pretty much anything whatsoever.

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  5. There’s a meaningful difference between removing a right granted by the Constitution and creatively extrapolating new rights from the language of the Constitution. The attempt to limit the birthright citizenship granted in the 14th Amendment is going to get similar pushback as attempts to limit the kind of weapons ownership protected by the 2nd amendment.

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    1. I already saw a convincing argument today on how the very text of the amendment can be used to deny the right to children of illegal immigrants. I didn’t save it but I’m sure we’ll see more.

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  6. The 14th amendment is clear: if you’re born in the US, you’re an US citizen. This is not a creative interpretation.

    There’s no abortion rights nor right to ban abortions, and there’s no gay marriage rights, nor right to ban gay marriage in the Constitution. Those are creative interpretations.

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  7. I never got why bans on gay marriage were ruled unconstitutional by the Supreme Court, so I guess I’m consistent at least.

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    1. Here:
      Obergefell v. Hodges Check out the first paragraph and the section entitled “Majority opinion.”

      You do understand they would have had to either uphold it in all 50 states or strike down all laws allowing for same-sex marriage?

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      1. I can see their argument, but I don’t know that I agree that same sex marriage is a fundamental right. I support gay marriage being legal, but that’s not the same thing. I do think the full faith and credit clause makes it clear that states have to recognize marriages from other states, and that was being blatantly ignored. Anyway, the decision on same sex marriage

        I’m pretty sure they wouldn’t have had to either uphold it in all 50 states or ban it entirely. What evidence do you have for that?

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