I don’t know whether it’s a point in my favor or not that I think I understand what Rep. Michele Bachmann, R-Crazytown, is trying to argue here:
Bachmann is trying to argue that Congress didn’t have the Constitutional authority to pass TARP. Of course, she’s completely wrong about that, and she made her argument so haphazardly that Tim Geithner can be forgiven not for understanding her.
As for the question she actually asked, the answer is pretty simple: the Treasury is acting under authority granted by Congress, under Article I of the U.S. Constitution. Article I regulates the Congress, of which Michele Bachmann is, sadly, a member. You would think that being a member of Congress would spur Michele to understand things like the elastic clause and the way Congress has functioned for roughly the last 200 years or so, but this is Michele Bachmann we’re talking about, a woman who is widely considered by members of both caucuses to be completely insane.
“EARTH2OBAMA.ORG”?!?
I’m guessing that’s the 6,000 year-old earth where dinosaurs and unicorns froliced peacefully with humans before the Fall of Man…
Interesting that in both recognizing her and in calling her time as up Frank referred to her as the “Gentleman from Minnesota”, even while he then called upon the “Gentlewoman from New York” to speak next. I mean, I know the man’s confused, but that’s a bit ridiculous.
I agree that where she apparently was coming from was not so much the idea that he had the authority because Congress granted it as wanting to know where in Article I the Congress has the right to grant the authority that he was using in the first place. That’s why she was asking him to quote the Constitution instead of simply referring to the acts of Congress. I would say, though, that such a question is more appropriately directed towards Congress than the person she was talking to.
After reading that Wiki link that the anti-Federalists appear to have been correct in how that clause would lead to great expansion of the Federal government’s power at the expense of the states.
i don’t think bachman’s all that wacky, she’s just not quite ready for prime-time. i’m sure there are some constituional professors at obama’s old school (richard epstein) who’d seriously consider the “tarp is unconsituional” arguement.
now, article one appears to end debate but one must square this the 10th ammendemt: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
i guess we’d have to then rely on the commerce clause, but fdr almost failed to get his new deal thru b/c scotus interpreted the commerce clause narrowly, wanting to retain property rights to the states and people. it was only after intiating a constituional crises (court packing) that fdr’s new legislation went thru.
so, my guess is bachman was talking of pre-new deal constituional law, a tad outdated perhaps, but not quite totally bizarre. but again, she couldn’t quite articulate herself.
If Bachmann is arguing in favor of a limited meaning for the interstate commerce clause, I hope she opposes the federal “partial birth abortion” ban, as that’s a pretty egregious use of the clause in order to legislate on how doctors treat patients.
TARP, on the other hand, has quite a bit more to do with interstate commerce, what with dealing with national banks (interstate + commerce). Even pre New Deal constitutional interpretation would admit that, so Manju’s argument above sounds like a strawman and rather libelous of poor Epstein to claim that he would support it. (What the pre-New Deal Supreme Court opposed was federal legislation dealing with purely intrastate matters, such as the wages paid by a factory that was wholly within a single state’s borders. The Court also opposed limiting freedom of contract, but that Lochner stuff had nothing to do with the interstate commerce clause and instead was based on an unenumerated “Constitutional right to contract.”)
i don’t think bachman’s all that wacky, she’s just not quite ready for prime-time.
You obviously don’t live in Minnesota.
I’m not sure what her most insane moment has been — spying on the gay rights rally was good, and alleging that lesbians were trying to beat her up was classy. But Michele is 100% crazy from her hair to her toes. (And this isn’t just me as a partisan saying this — I have it on good authority from a GOP House staffer that she’s viewed even more skeptically by her fellow Republicans.)
And Bachmann has not just a JD but also a LLM (in tax law, from the quite respectable William & Mary), so she doesn’t get a pass for fudging and fumbling these points. It’s one thing to be a lawyer and to misspeak (for example, saying Article II when you meant Article I, as I think Biden did in the VP debate). It’s another to be apparently blank on what the Constitution does and doesn’t empower Congress to do.
Please do not use insane when you mean ignorant.
As I pointed out by noting that Bachmann has legal degrees, she is not ignorant of the law. Would ‘crazy’ be ok here?
No, neither crazy nor insane is the most apt word in this context. Is this not an anti-oppression blog? Do not insult mentally ill people by comparing them — I mean, us — to this person.
As a mentally ill person (major depression, ADHD), I’m not being cute with using insane to describe Bachmann. She is not ignorant, she is dissociated from reality. When I say she’s “insane,” it’s because I believe she is, literally, insane.
So is it OK when one self-identified ‘slut’ uses the same slur to describe another woman? Why not find some other descriptive word instead of a word that has been used to control and shut up those with different views for far too long?
I get where Joy-Mari is coming from. I get tired of seeing references to mental illness peppered throughout political commentary as a way of saying that a person is worth dismissing. I tend to separate it out when I see someone use terms like “crazy” or “insane” from when someone says something like “sheesh, she’s right off the psych ward huh?,” but at some point it phases over from a word being used to describe a general set of behaviors to a way of invoking a class of people that can then be subject to blanket dismissal. The line there is kinda blurry. I wonder if I have gone too far in desensitizing myself to it.
And while I get that major depression and ADHD are mental illnesses, and I’ve experienced some amount of bias as someone who has been clinically depressed myself, I do think it’s on a whole other level when you get into the psychotic and dissociative disorders.There is major work that needs to be done around the way these illnesses are portrayed and the way people with these illnesses are excluded and demeaned on a regular basis. For example, it has been strongly suggested to me on more than one occasion by otherwise educated folks that I ought not breed with my hubby because he has bi-polar I disorder. And the folks I worked with for years who had schizophrenia, many of whom I would have much preferred to be running my country than folks like Rep. Bachmann — they lived in such fear of having their rights taken away, losing their jobs, being excluded from family homes when children were present, you name it.
I also get the insane = disconnected from reality definition you were going with. But there’s a huge difference between an illness that disconnects you from reality as a result of neurochemical processes and the condition of being willfully disconnected from reality because you don’t want to have your opinions challenged. One is an illness, the other is a character flaw, and the two ought never be confused. The problem is a lot of our terminology quite purposefully does confuse the two.
Pretty much word for word support of Dona Quixote.
Jeff, I agree with you – stick with “insane”. It is an apt description of this woman. Anyone who calls for citizens to be “armed and dangerous” over a sitting President’s tax plan is insane in my book, or at the very least, the ideas she promotes are insane. Words have the meaning and the weight we give them. And they have multiple meanings. And many were in common usage way before modern medicine used them to diagnose an actual medical condition. When an advertisement talks about “insane price slashing” or even more aptly, journalist refers to this “insane economy”, I understand that the user isn’t a licensed medical practitioner making a clinical diagnosis about the price of a new car or the state of our economy.
I’m not from Minnesota, but if I was I would wonder about the sanity of the people in her district who vote for her, and how it reflects on the rest of the state.
Pingback: Alas, a blog » Blog Archive » The Metaphors we use
PG:
I’m not to sure of this. There appears to be a tradition advocating a higher level of judicial review when the govt interferes with the free market…a school of thought that has lost but is not exactly wacky.
For example, in the first new deal test, Panama Refining, SCOTUS seems to recognize FDR’s legislation as a regulation of interstate commerce but still finds it unconstitutional. FDR wins subsequent cases but there is dissent. Social security and railroad retirement came close to being deemed unconstitutional, because the dissenters had a narrow view, based on original intent I suppose, of what constitutes interstate commerce.
So i saw Bachman views as in the tradition of property rights as an intricate part of the doctrine of the inalienable rights of man…a tradition that goes back to the enlightenment. I’m not necessarily agreeing with it, just saying I didn’t see it as completely out of bounds.
Or reverse it. Lets say a congresswoman faces down an executive who wants to ban pornoagragpy. Now anyone who knows anything about the 1st amendment knows obscenity is not constitutionally protected. Would the congresswoman be insane? Out of her mind? Stupid as hell? Maybe. Or maybe she taps into a school of thought that believes the first amendment should cover porn: its a logical extension of free speech, the constitution is living, etc.
Its possible to be completely wrong about the current interpretation of the constitution , as Bachmann certainly is, while still having a plausible argument that need not invoke mental illness to explain.
Manju and Jeff–I’m pretty sure that TARP, being a spending program, was actually passed under Congress’s authority under the so-called spending clause (“The Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States . . .”), so the “elastic clause,” (by which I presume Jeff means the necessary & proper clause) and the commerce clause wouldn’t come into it. There may be other parts of the EESA imposing new regulations that are authorized under the commerce clause though.
I agree with what the other commenters have said about mental illness, but Rep. Bachmann is not ignorant either. She actually knows a lot more about this subject than Jeff does, since she’s a lawyer and Jeff isn’t. She’s just wrong.
If she’s an advocate of the more radical versions of constitutional originalism, she could even be right from within that perspective. I think it’s more likely that she’s just spouting nonsense she doesn’t believe, which is a common pastime among members of Congress.
Manju,
You seem to have ignored the sentence right after the one you quoted:
The Court also opposed limiting freedom of contract, but that Lochner stuff had nothing to do with the interstate commerce clause and instead was based on an unenumerated “Constitutional right to contract.”
That’s a view that the Constitution protects a right of contract such that New York State in Lochner could not regulate the hours, wages, conditions, etc. of workers who had signed a contract. However, that would be irrelevant to TARP I unless TARP I involves the abrogation of existing contracts or forces limitations on future contracts.
Panama Refining is an aberration in the New Deal cases because it dealt with Congress’s failure to specifically delegate power to the executive branch, rather than with a lack of Constitutional power in Congress itself. Again, not clear on how this is relevant unless you’re saying that TARP I did not clearly delegate to the executive, which it did (albeit not to the insane degree Paulson’s initial two-page proposed legislation did).
Everyone agrees that property rights are protected under the Constitution. It’s right there in the 5th Amendment. What do property rights have to do with TARP?
There are many differing interpretations of the 1st Amendment. A Congresswoman who believes that pornography is protected by the 1st Amendment actually would be taking the view of Justice Hugo Black, who refused to attend Movie Day at the Supreme Court, where the justices would watch porno to determine whether it had redeeming social/political/artistic value, because Black’s view of the 1st Amendment was that “Congress shall make no law” really meant “Congress shall make no law.” Justice Douglass took a similar albeit slightly less absolutist view. So there’s nothing marginal or unusual in the hypothetical you describe.
In contrast, Bachmann doesn’t seem to be referring to any specific interpretation of the Constitution. She’s just rattling off questions.
PG
You’re right about the unenumerated Constitutional right to contract being the central concept to an expanded vision of property rights, and maybe Bachmann had that in mind. That still relates to the commerce clause in the sense that it puts servere limits on the federal government’s power under this clause, as would any other rights in the constitution.
Now how would this theoretically apply to tarp? I suppose someone who views the right to contract thru the prism of strict scrutiny could argue that those who entered into derivative contracts and stand to benefit by the value of the underlying securites going down are, for all practical purposes, having their right to contract violated by this governmental action.
In fact, one could argue that the holders of these contracts are having their property taken without just compensation under the 5th ammedment that you cite. If I’m short Citi stock for example and the govt bails out citi either directly or by bailing out their counterparty (aig), haven’t they just invalidated my short contract and taken my property, the $$ I’m owed for betting right on the market?
Now I agree that the framers didn’t inted to have this level of scrutiny when the govt interferes with the market, and for that matter the tradition of classic liberalism going back to smith and Locke is to allow the government a lot of leeway in these matters. But actions like tarp still go against the spirit of the constitution, so kudos to bachmann for at least bringing it up, however clumsily.
This might all sound silly to moderates and progressives, and I agree the conservative movement has been reduced to hiding behind theory at this pivotal time in history, but there is a moral quandary at stake here: actions that appear to benefit a select few who have government influence at the expense of the unenumerated rights of other individual does pose challenge to the social contract under which our regime is built.
It either that or bachmann just doesn’t know what the hell she’s doing.
Pingback: Alas, a blog » Blog Archive » Michele Bachmann: Irrational conspiracy theories are awesome.
Manju,
OK, let’s look at this argument piece by piece.
Sure, any right that one has under the Constitution is a potential limit to the federal government’s power, even enumerated powers; the federal government has an enumerated power to raise armies, that is then limited by the 3rd Amendment’s prohibition on housing those armies in people’s homes except in time of war.
Nope. If you believe there is a constitutional right of contract that cannot be impaired by the federal government — and note that if you actually believe this, you had better be ready to get up and speak out against the existence of minimum wages, maximum hours, OSHA and every other federal regulation of the workplace — that constitutional right only requires that the federal government not abrogate your contract. That does not prohibit the federal government from taking actions that will have the effect of impeding your maximum benefit from the contract.
For example, if I make a contract to pay $10 million to be the recipient of all the oil retrieved from Iraq during the period April 2003 to May 2003, if the U.S. invades Iraq and oil production basically ceases during that period, I’m not getting much benefit from my contract — certainly not what I paid for it. But that doesn’t mean that my “right to contract was violated by this governmental action.” I made a gamble that the oil produced during that period would be more than what I paid for the contract. The government didn’t impede my making the contract. It just took an action that had, as one of its consequences, that I’d get shafted. (Come to think of it, some countries that dealt with Iraq in the Oil-for-Food or in shadier ways probably had something like this happen to ’em. Even under the world’s most expansive contract theory, they have no legal leg to stand upon in making a claim against the U.S.)
See Iraq invasion example above.
You still haven’t explained what “spirit of the Constitution” requires the government to ensure that its actions don’t decrease any expected profits people expected from a contract. In the absence of such an explanation, I’m not handing Bachmann any kudos.
I think its fair to say tarp challenges the spirit of the constitution. In classic liberalism, the philosophical context in which the document was written, govt intervention is not just another market risk, but an extraordinary act strongly discouraged…precisely because (among other reasons) it violates the natural rights of man (with women later to be incorporated).
This is becuase govt action by its very nature constitutes an intitiaion of physical force against individuals…the very act –so central to the state of nature — from which liberalism seeks to liberate us. The entire document can be seen as a project attempting this liberation, from (most notably) the bill of rights to separation of powers. Its intentionally very difficult to get legislation passed in our regime, even in regards to economic matters, because unchecked govt power leads to tyranny.
But violating spirit is not tantamount to violating the constitution. Liberalism is an open philosophy intended to work, and thus recognizes all sort of exceptions, especially in the realm of national defense. This is why your Iraqi war example is not convincing, since war is an exclusive and proper function of government. Market intervention, while certainly not unconstitutional, is not quite at that level.
A similar situation exists with Jefferson’s “separation of church and state” phrase…a phrase that does not find its way into the first amendment. While the constitution clearly discourages an excessive mingling of the two, it does not outlaw it.
In a similar sense tarp is problematic for the American ideal. It constitutes an intitiation of force affecting voluntary and informed exchanges between market participants. Worse still, in rewards the incompetent at the expense of more saavy players. In essence, the natural right to contract is violated (by an intition of force) and property thus seized. It creates the moral dilemma of crony capitalism, undermining the faith necessary to maintain the social contract as well as the efficiency of the market (by rewarding poor decisions).
Its also clearly constitutional, since the founders wanted govt to have such options , especially in the the case of emergencies. But if Bachmann’s cryptic question to Gientner was meant to raise these issue, then i think she should get some kudos.
Which version of “classic liberalism” are you thinking of? Mill is one of the major theorists of classic liberalism — yet he wasn’t even born when the Constitution was ratified. I don’t know what philosophy you are attributing to Madison and the other Framers.
Exactly how do you reconcile the Constitution’s explicitly providing for the federal government’s tariff powers — which are a HUGE interference with the market — with your vision of the Founders’ being “classic liberals” opposed to government intervention in the market?
You seem to have missed the point of the Iraqi war example, which is not about what the proper functions of government are, but whether government action that has as one of its side effects your loss of benefits of contract — WITHOUT ANY ACTUAL LEGAL BREACH OF SAID CONTRACT — is somehow a violation of your rights of contract. It’s not, ever. No one ever has theorized that if the government does something and that causes you to lose out on a gamble you’ve made, the government has violated your rights. That’s the nature of gambling, which is what any speculation in stocks is.
Justice Oliver Wendell Holmes addressed this line of argument in his Lochner dissent: “But a constitution is not intended to embody a particular economic theory.”
More toward Locke’s natural rights than Mill’s utilitarianism. But since the founders were diverse and there was tension between Lockean individualism and those devoted to civic virtue, i don’ t think we can assign to them one line of liberal thought, just that the American revolution was a liberal one and they understood liberty as classically defined…freedom from physical force, and preserving this freedom to be the primary role of government.
Well taxes are one of the first limits to our freedom we agree to when we enter into the social contract, a necessary evil if you will. Tariffs fall under international relations, one of the proper role of government and given that not all states are liberal, an asymmetric trade scenario (like say a foreign govt subsidized import) justifies govt protecting the states own industries.
Well, investing is not necessarily a gamble, since the market is not a zero sum game (for every dollar lost there is not another gained, necessarily). But be that as it may, Locke and others did theorize that positive government action, not just government regulation, impinges on man’s natural rights sine it takes us farther from the state of nature. granted, economically the main line of argument is that economic systems based on free markets are more efficient and generate more prosperity, but the rights argument is still there, and is part of the rational for limited government in general.
the founders were also famously concerned with corruption, since a government powerful in the economic sphere is susceptible to this (think license raj). This was sometimes framed as a violation oft he economic rights of the non-elites.
granted, this concern does not raise to the same constitutional level as say the establishment clause (where a similar positive govt action is viewed as a violation of the (in this case religious) liberty of non-elites, but its still there. i think the founders, especially Jefferson (who had concerns about judicial review and even marbury vs Madison) wanted the legislature to ensure these rights and Madison’s concerns about a central bank ran along similar lines.
Manju,
The American revolution was a liberal one in its broad outlines, but I think you’re assigning too many defined beliefs to it. For example, you’re basically making a claim that it was what we’d now call libertarian, i.e. that the government has an obligation to preserve “freedom from physical force.” Yet the Revolution itself was waged using conscription, whereby men were forced to kill others and risk their own lives whether they wanted to do so or not, on pain of criminal punishment. How is that compatible with “freedom from physical force”? The Founders’ conception of both government’s and citizens’ obligations was much more complex and demanding than such simple phrases admit.
International relations are part of the role of the federal government, but tariffs are paid by the citizens who import, not by the foreigners. Tariffs motivated by protectionism are undeniably interfering in the free market, and moreover a cause of strife among states. Learn about the Civil War in the South, and you’ll find out that it was thought justified for reasons beyond slavery, including tariffs on imported finished goods. Interstate commerce is one of the enumerated roles of the federal government as well, and the government is protecting the national financial industry (and by extension the rest of the economy) through TARP. If you can justify tariffs used for a reason other than as trade sanctions imposed to punish a foreign state for its non-trade activity (e.g., tariffs imposed on Japanese car imports to protect the domestic auto industry, not trade sanctions on India and Pakistan for nuclear testing), you can justify TARP.
Wasn’t the origin of your complaint about TARP’s being a violation of people’s rights that “those who entered into derivative contracts and stand to benefit by the value of the underlying securites going down” are losing out on that benefit because the government is propping up the underlying securities? You posited investment as a zero-sum game.
You talk as though the Founders all must have agreed with Locke’s view of government. They didn’t, and using Locke’s views as a substitute for actual Constitutional analysis — including the historical record, Federalist Papers, etc. — just doesn’t work. Either we are concerned about the Constitution, or we are concerned about the violation of certain natural rights described by Locke but in no way enshrined in our founding documents.
Moreover, trying to lump natural rights in with the Constitution’s limitations on the federal government is inherently absurd because natural rights were rights maintained against all forms of government. Locke didn’t distinguish between government at the national and local levels. If the Founders had been Lockean natural rights believers, they would have pushed to ensure that the Bill of Rights — including the First Amendment — would apply to the state governments as well as the federal. After all, the Constitution guarantees the citizens of the several states a right to a republican form of government at the state level; why not guarantee other rights at the state level if those were “natural rights” that every citizen must have? Yet of course the Founders didn’t do that, and so states could have establishment of religion, including enforced Protestantism in the public schools, until the 14th Amendment extended most of the Bill of Rights to protect against state governments as well.