14th Amendment vs. the Commerce Clause

More Perfect, a podcast about SCotUS from the Radiolab folks, has a recent episode that really got me thinking. (I highly recommend this podcast, by the way.) The short of it is that progressives have had a lot more success invoking the Commerce Clause than the Equal Protection Clause. In case you've forgotten your high school civics, here are the two excerpts of the Constitution:

Commerce Clause (Article I, Section 8, Clause 3)
The Congress shall have power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....

Equal Protection Clause (Section 1 of the Fourteenth Amendment)
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It occurs to me that only under Capitalism would we find more success arguing for social justice using a call to economic harms rather than calling on basic human rights and dignity directly. Capitalism alienates humans from those very things that make us human, including from the products of our work but also our humanity itself. Moreover, there is a great, though understandable, risk in relying on capitalistic strategies instead of human strategies. Justice delayed, after all, is justice denied. Our dreams should not be deferred. However, a moral demand for dignity is not easily overcome. Once you have convinced others that people should be treated justly because they are humans, the only way to remove that justice would be to argue that some people are not, in fact, humans or that humans have no right to justice. Tortured arguments based on economics are vulnerable to the changing fashions of textual interpretation. In short, our use of the Commerce Clause is risky, even if expedient.

Anti-abortion Amendments and Corporate Personhood

This NY Times article today got me thinking. Would a constitutional amendment aimed at making abortion and some forms of birth control unconstitutional with this wording, "the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof," unintentionally redefine corporate personhood?

Who Is Responsible for the 14th Amendment?

There's been a lot of discussion lately about how the president should deal with the possible failure of Congress to act on the too-low debt limit. Some have suggested that the 14th Amendment grants the president the authority to simply up the debt limit himself. Here is the actual text of the amendment:

The validity of the public debt of the United States...shall not be questioned.

President Obama has made it clear that he does not agree that the Constitution grants him this authority, and as a former professor of Constitutional Law, I would have to bow to his judgment on that one. One thing that I haven't heard anyone mention, though, is that if the nation does default (fully, partially, or technically) who bears the fault? If the president isn't responsible, then the Congress would clearly be in breech of the Constitution. Wouldn't that set the entire Congress up for impeachment or even punishment?

David Barton

The Daily Show (here, here, here, here, and here) and the New York Times have recently devoted airtime and printspace respectively to the "historian" David Barton, champion of the Evangelical right who argues that the United States was explicitly founded on Christian principles. I have a problem, particularly with John Stewart and his extended dialogue with this self-branded savior of American history. To engage in arguments like this does something dangerous. Namely, discussing the intentions, motivations, and even the interpretable actions of the Founding Fathers legitimates a kind of textual essentialism; the Constitution becomes "an inerrant text," only to be interpreted literally. We often are told that the Constitution is a "living document," but many don't take that seriously. Let's face it, the Framers got a few things wrong: slavery and suffrage for women to name just a couple. In the same way that biblical literalists insistently attempt to directly apply books that are as much as four thousand years old to contemporary life, Constitutional dogmatists hearken back to those in 1787 as all-knowing and politically unencumbered. The Constitution has served us well as a rationalizing document, but we shouldn't worship it as a divinely infallible revelation.

Rachel Maddow on Democracy and Rights

I generally find Rachel Maddow to be needlessly polemic and dismissibly polarizing, but she makes some irrefutable points in this piece:

http://www.msnbc.msn.com/id/21134540/vp/38372891#38372891