## A Lesson in Constitutional Interpretation

In light of the current debate on Capitol Hill, the quotation of the day comes from the Supreme Court’s majority opinion in D.C. v. Heller:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

h/t Aaron Spuler at Weapon Blog for reminding me of this passage.

## Post-Mortem, Episode II

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

— Benjamin Franklin, upon leaving the Constitutional Convention in 1787

I do not want to say much about the election today, but I do want to share a few thoughts.

I will begin by referring the reader to my post-mortem of the 2008 election. When I wrote that post, much was still unknown: how Barack Obama and his Democratic colleagues in Congress would govern; whether they would unite us or divide us; whether the campaign-trail talk of bipartisanship was at all legitimate or just so much smoke; and so on. Now, four years later, we know the answers. Obviously, half of the people who voted in the last few weeks liked the answers they came up with.  Others — nearly as many, in fact — did not like the conclusions that they reached, and so we are even more bitterly divided than we were four years ago.

As those who know me well — or read this blog — already know, I think last night was a catastrophe. But it was a catastrophe in the sense that a heart attack is a catastrophe for a person who has smoked heavily and drunk too often and too deeply for the first seventy years of his life: terrible, frightening, but hardly unexpected to anyone paying attention. The election was only a symptom of the nation’s condition, not an unforeseeable landslide or a paradigm shift.  This is simply true, whether or not you were happy with the outcome. People went to the polls, and they voted for what they believed in; they did not suddenly reach some new and startling conclusions in the privacy of a voting booth. The results are a symptom: either that we are recovering from many of our maladies, or that we have taken a turn for the worse. Either way, our course of treatment is largely set for at least two more years and arguably far longer.

The good news today is that, as I observed after the 2008 election, we still are a nation, and we have again chosen new leaders with essentially no bloodshed or rioting and with minimal (but not zero) fraud and voter intimidation. The framework set out in the Constitution and its handful of amendments has survived, at least in this sense, for another four years.

As for the bad news, there is plenty of it.  We are a deeply divided nation in countless ways, a reality that only got worse, not better, in the last four years. We are mired in debt, bitter factionalism, and debates that involve more ad hominem attacks than reasoned arguments. There are very few topics that we can talk about without someone hurling (meaningless) epithets such as “one-percenter,” “____-phobic,” “anti-woman,” “anti-child,” and so on. Measured without accounting gimmicks, our deficits and our debt are soaring and are already well beyond levels that can be bridged even with punitive levels of taxation. Indeed, our country’s credit, once seen as the safest in the world, has been downgraded and is on multiple watch lists for further downgrades. Our military is weakening and faced with further, eminent, and debilitating cuts unless action is taken quickly. Our foes are emboldened, while some of our most faithful allies no longer even question whether we can be depended upon; we have proven all too often that, at least for now, we cannot. I pray that our leaders — all of them — can work together to preserve, protect, and defend the Constitution of the United States and the people governed by it.

Whether we can overcome the challenges ahead, only time will tell. A look at the history of nations with such deep debts and deep divisions does not bode well. If we are to overcome the tests ahead, it will be a remarkable feat, and it will take all of our effort. As a start, please pray for this nation and her people. They do sorely need our prayers.

## Musings on History

Never assume that a logical connection exists between some instance of what is and some ideal of what could be. Some things cannot be redeemed, but are best destroyed or simply left alone. Indeed, many of history’s saddest chapters began with efforts to turn a present but dying evil into a lively engine for good.

## $4,284,500,000,000 That’s what the so-called “financial crisis” of 2008 has cost the federal government directly… so far.* Wonder how that stacks up to other crises? CNBC has a slideshow showing the costs (inflation-adjusted) of some of the biggest government projects ever. There are many events not listed in that slide show, of course. Two of the most notable: the Civil War ($60.4 billion in 2008 dollars, for both sides) and World War I ($253 billion in 2008 dollars). For comparison,$4.28 trillion is approximately 31% of 2007 US GDP. It’s also 167% of 2007 federal tax revenues. How’s that for deficit spending?

You may bring your eyebrows back to earth now.

* Some of this money is in the form of loans. Many of these loans are to companies hemorrhaging cash faster than they can borrow it and are explicitly designed as relief against bad assets, however, and the crisis is hardly over. So, counting this money as lost is only wise.

## Post-Mortem

So, America has elected its next President, its next Vice President, 35 Senators, 435 members of the House of Representatives, and thousands of state and local officers. We did it, again, without violence or bloodshed, with a minimum of intimidation, with a minimum of fraud, and, in general, with great dignity. There can be no doubt that the People have spoken. There can be no doubt that skin color no longer determines who may or may not participate in in our common public life, or at what level. We elected a man for what he believes and what he says, not for what he looks like, and that is, indeed, a milestone. Congratulations to America for those accomplishments.

Now, it will be no surprise to anyone who reads my musings regularly (or has read the site description at the top of each page) that I wish the outcome had been a different one ideologically. I did not and do not care about the race or gender of any candidate for any office, but I care very much what he or she says and thinks. If the latter are our primary concerns, this election was a clear defeat for conservatives. As a conservative, I think that constitutes a loss for the nation. Of course, I don’t think the Republican Party ever had much chance of holding ground in this election. For that matter, classical conservatives (as opposed to neocons) had even less. We were hoping for a better result, not an excellent one. Alas, it was not to be.

CNN tells me the U.S. chooses “change.” It’s not clear to me, yet – or, indeed, probably to anyone – just what change America collectively thinks it will get, much less what it will actually get. That said, change is coming. Indeed, in troubled times of war, economic turmoil – the worst of which I sincerely doubt is over – political division, and a deep moral divide on countless issues, change is inevitable. There was never any question that the United States of America will be different in 2012 from what it is in 2008. The world changes fast enough on its own to guarantee that. The question is, given that we can collectively control some of that change, what do we do with that power, which we have now entrusted in President-Elect Barack Hussein Obama? We will start hearing and seeing the answer today, I suspect.

I have one final thought I want to share in this election wrap-up. One of the common responses to the election and re-election of President George W. Bush was to say, “Well, he’s not my President.” Indeed, already, some are responding that way to Obama; others are embracing him as “my” President (Senator McCain took the latter approach). Here is my thought on this topic: George Bush is not my President, nor will Senator Obama be. Nor was any of Bill Clinton, George H.W. Bush, Ronald Reagan, or Jimmy Carter. I don’t have a President, and never will.

We, the People of the United States of America, we have a President, and we have elected a new one. This Nation must stand or fall as one. The trend of claiming and disowning particular officeholders based on their political affiliations is, I think, an extremely dangerous one. Our nation is defined in large part by a simple phrase: e pluribus unum, “out of many, one.” We had better take hold of that concept, before we produce many from the one People and one Nation we have inherited. And we had better all own this new President and claim him not as “mine” or “theirs,” but as “ours.” We need to hold him – and all who claimed victory last night – accountable to the People for what our government does in the next four years.

Members of the military have a time-honored saying: “We salute the rank, not the man.” Likewise, we – all of us – can and should honor the President and the presidency of this nation, regardless of upon whom that burden rests.

We have a President. We have a Nation. We are a People. Let us celebrate that, and let us see if we can unite in respecting those institutions and working in and through them for another four years, so that we still have them at that time.

## A Simple Request

I have one request of Americans this week: Please, don’t immanentize the Eschaton.

## Where It All Gets… Interesting…

I’ve been doing a lot of thinking – far too much, actually – about this election. I am not going to blog here about the relative merits of each candidate – anyone undecided between these two extremely different candidates at this point hasn’t been paying attention. In fact, this will probably be my last election-related blog prior to the first results coming in. There are a few things bothering me, however, that I have to get off my chest:

1. Smoke and mirrors
2. Media spin
3. One party rule by super-majority: threat to checks and balances, or just another day in D.C.?
4. Who really pays

## Journalism =/= Mathematics

As a math major, law school grad, and economic policy wonk, I’m not sure which aspect of this stupidity by the New York Times horrifies me most. Is it: that people think we do tax at those rates, that some people think we should, that no editor caught the logical flaws before publication, or that this kind of thing happens all the time in other circumstances and goes undetected more often than not?

## Why Liberals Will Always Have Better Methods

I had a short series of recent conversations on the nature of conservatism. The upshot of the conversations was this: conservatives don’t really have very many tools at their disposal, while a liberal political theory has at its disposal all the means of the state. This follows from the fact that liberal politics – at least in the sense in which liberal politics coincide with progressive politics – attempt to modify society, to change it and make it better. This activity of modifying society requires the tools and methods of the state – the ability not only to suggest norms, but to codify them in law and enforce them.

A conservative, on the other hand, starts with a suspicion that humans, being fallible even at their best, will often get it wrong. Thus, the conservative holds that there is value in what is inherited from our common past, so change should be brought about incrementally and with great caution at each stage. This stance is, in most cases, incompatible with use of the tools of government. Legislation, like executive acts and judicial decisions, is a blunt tool. Even when legislation or a judicial decision is excruciatingly narrow and detailed – when it also risks futility through its necessarily small scope – it impacts the actions of large swaths of society. To the conservative mind, modifying society through governmental means is akin to performing surgery with a battle axe.

Thus, the conservative in government – or seeking to be there – is fundamentally disadvantaged in the eyes of the public by the reluctance to embark upon sweeping social programs and legislative initiatives. A liberal comes to office with an agenda: fix this, create that, abolish the other. A conservative (not necessarily a Republican, of course) comes to office with fear and, if not more humility, then a different humility: don’t touch anything, lest it break, until it’s clear you have no other moral choice.

At least, this is what came out of the conversations I mentioned. Thoughts?