Saturday, July 22, 2017

Can we please stop worshipping the "Founding Fathers"?


I don't give a shit what the Founding Fathers would think about anything in our politics or our legal system today.  Because, for one thing, the Founding Fathers didn't think people like this would be voting for our President:

But there does seem to remain a portion of Americans whose support for the president is unwavering despite the near-constant chaos from the White House. A poll this week found a plurality of both Trump voters and Republicans overall would approve if the president walked onto Fifth Avenue in New York City and shot a person.

There are documents left by Hamilton which clearly indicate even the sweeping pardon power of the President is restrained by "corrupt" usage; but we'd have to depend on the courts to decide what that was, because a plurality of Trump voters and Republicans don't think the President shooting someone on Fifth Avenue is a sign of corruption.  The Founding Fathers would respond: well, we didn't tell you to give the franchise to just anybody, or to make the Electoral College a rubber stamp for the popular vote.

But we did, so fuck the Founding Fathers.   We already have, actually, but we still venerate them and use them to excuse whatever we want to do now.  No matter, because they're dead and their ideas are dead and we have the Constitution we have today, and by the way, fuck Antonin Scalia.  He's dead, too, and his "originalism" should have died with him.  We shouldn't still be asking what the Founding Fathers meant by some choice of words in the Constitution.  I studied Constitutional Law in law school, and what the "Founding Fathers meant" is not a principle of Constitutional analysis. Scalia tried to make it one, and the idea only took hold in the popular discourse where people have no idea what "Constitutional analysis" means anyway!   Screw that!  Get rid of it!  Banish it from your thinking and from public discourse!  I don't care what the "Founding Fathers" thought.  They weren't a many-headed beast with one body, they weren't gods, and they didn't leave us a system of government that had to constantly reflect on what they wanted.  They lived in the 18th century, we live in the 21st.  They approved of slavery and the denial of the vote to women and non-white non-property owning males, and wouldn't recognize the world we live in any more than we would theirs (as I tell my students, why do you see women in floor-length dresses in "Colonial times," and mean in knee breeches and silk stockings?  Because men are showing off their legs, not the women.  Start with that and the acceptance of slavery, and consider how different we are from them.).

I have nothing against them, but this constant "what did the Founding Fathers mean by the pardon clause" is bullshit.  It's not a recognized method of analysis in legal or textual circles, and yet it seems to be the only one we are allowed in popular discourse.  Enough!  The pardon power is broad, but it's not broad enough for a President to pardon himself.  That way lies anarchy and monarchy and the destruction of the rule of law.  As the Supreme Court has recognized, the Constitution is not a suicide pact.  No provision of it is so absolute as to require it be followed to the destruction of the whole.  If Trump is stupid enough to pardon himself, the courts are not required to recognize it because he's got the Presidential seal and the Presidential podium and his momma loves him like a rock!  If he tries to get Mueller removed on flimsy and laughable (or even semi-serious) grounds of conflict of interest, that's obstruction of justice!  If he pardons himself and everyone else, a la George H. W. Bush (who at least did it on his way out the door), that's obstruction of justice, too! The Presidential Pardon power cannot be used to thwart the rule of law, or else we have abandoned the rule of law and elected a monarch.

Could that be any clearer?
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