I must admit… I’ve grown fairly acustomed to idiocy in the mainstream media; lets face it, its everywhere.  And usually, I don’t bother to poke holes in every op-ed article fraught with logical problems.  However, some pieces compel a response because of how important the subject matter is… and how uninformed the author in question is in accurately writing about such subject matter.  A recent Time/CNN article on the Constitution titled “One Document, Under Siege” is a great example of such an article.  Stengel opens the piece this way:

Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

This, my friends, is what the opening of a hit piece on the Constitution looks like.  Rather than acknowledging the historic legacy we owe to our framers… a legacy bosting what are unarguably some of the most advancements in human history… Stengel openes his piece by essentially making fun of how ignorant the famers were of modernety generally.  The title of your piece … “One Document, Under Siege” makes so much more sense now, doesn’t it?   You are making it your business to discredit the framers as out-of-touch ignorant prudish backwoods hicks who’s lack of knowledge about lady gaga entirely disqualify all of their ideas from the realm of serious dialogue.

I’m afraid you are confusing the privilege of, well, living in the future, with the ability to judge the condition of humanity and proscribe social institutions most suited to such a society.  Thats kind of embarrassing if you ask me.

But, before I get ahead of myself, you continue:

People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn’t even dream that man could fly, much less use a global-positioning satellite to aim a missile, it’s hard to say what he would think…

What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress’s authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it’s difficult to know what he would say.

And what would Thomas Jefferson, a man who owned slaves and is believed to have fathered children with at least one of them, think about a half-white, half-black American President born in Hawaii (a state that did not exist)? Again, hard to say.

But what George Washington would have thought about any of this is, well, missing the point, isn’t it?  We don’t have to ask what he thought… we need to ask what powers the constitution expressly allows or prohibits.  In most cases, this is fairly clear; in cases where it is not, we have courts (and constitutional amendments) to work through the issues inherent with modernity.

David Azerrad over at National Review put it this way:

These principles [expressed in the Constitution], although first articulated centuries ago, are not tied to the material conditions of a bygone age. They rest on that most solid and enduring of all foundations: human nature. Madison’s rhetorical question in Federalist 51 rings true as ever: “But what is government itself, but the greatest of all reflections on human nature?” The miniskirt, sexting, and collateralized debt obligations haven’t put much of a dent on good ol’ human nature…

Times changes. Issues flare up and drop off the radar. Science continues to deliver wonders. The Constitution is meant to create a framework for a free people to confront the political questions of their times. The Constitution itself contains no policy prescriptions.[emphasis added] Its words and principles, anchored in the Declaration of Independence, categorically rule out certain laws — e.g., bills of attainder — and create a system of checks and balance between different levels of government. But within the confines of these restrictions and delineations, it leaves the people free to deliberate via their elected representatives on the questions and problems of the day.

In other words… your fascination with ‘what the founders thought’ really misses the point:  They thought that future generations should figure things out themselves in a political climate which would protect them from an oppression by an all-powerful state.  Your veiled criticisms about the framer’s lack of insight into some rather trivial ‘modern’ issues seems to blind you from the incredible nuance, foresight, and insight the framers had about the state of man and the inherent dangers political power can have if left unchecked… which is all the document was intended to address.

And if that were not bad enough, we hear you say this:

If the Constitution was intended to limit the federal government, it sure doesn’t say so.

Really Mr. Stengel!  Ever hear of the 9th and 10th amendments?  Did you miss every time the language insists that “Congress shall pass no law abridging…” [pick your favorite freedom]?  The Necessary and proper clause (which you argue is some sort of license to exercise any power congress wants to exercise) is limited to laws “necessary and proper for carrying into Execution the foregoing powers” — language you mention but don’t seem to understand the meaning of at all.

And if we were honest with ourselves… your piece really isn’t about the constitution at all… its about defending all of the Obama administration’s questionable policies while at the same time  getting your jabs in at the tea party for even questioning the validity of Obama’s spending, his wars, and his health care law (all of which you at least partially defend on constitutional grounds)

We see straight through you Mr. Stengel.  Straight through you.

via U.S. Constitution Under Siege over Libya, Taxes, Health Care — Printout — TIME.

Its not often that you get great constitutional commentary from tech journalists… but hey, I won’t complain when they do.  To sum up things up:  the first amendment is not a license to speak without retaliation… its a license to speak without government retaliation.

Enough. It pains me that I – a Brit – have to lecture Americans – particularly those of you who would be President – on your own laws, but here’s the stark truth of the matter… You do not have a blanket right to freedom of speech: not in stores, not in bars, not in other people’s private homes and not – in almost all cases – on the Internet.

And you certainly don’t have that right enshrined in the 1st Amendment, which reads….

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Read that again. The clue is right there in the first word of the first amendment. CONGRESS shall make no law. Not TechCrunch shall make no law, or Rackspace shall make no law or talk radio shall make no law or I shall make no law or you shall make no law, but CONGRESS.

via TechCrunch Has Breached Your Right To Free Speech? Yeah, Shut Up.

Paul Campos, writing over at the “Lawyers Guns & Money” blog has a piece I highly recommend reviewing if you feel at all inclined. While he unearths little more about Kagan’s political beliefs than was revealed in the nomination hearings, he does begin to show us a picture of Kagan’s past that has not received the attention it probably should receive… but who in the mainstream media would we really expect to do this kind of research anyway?  I can’t think of anyone.  Whatever the piece’s weaknesses, I think anyone would agree with me that the piece is certainly compelling journalism.

I found two things particularly interesting about Kagan after reading the piece:  First, her ability to land not just good jobs… but great jobs… is really astonishing.  If you ever doubted the ability of connections to influence your career, you had best rid yourself of that notion immediately.  Second, it surprised me just how deeply Kagan is connected to Washington Elite… both because of her connections to the Clinton administration as well as those she gained as dean at harvard – a position she appeared to be quite unqualified for albeit groomed for it seems.

Campos concludes thusly:

Indeed, Obama’s nomination of Kagan suggests that, for all his talk of “change,” he is himself at heart a comfortable denizen of Establishment America – that place where people with the right sorts of resumes rotate profitably between Wall Street, Washington, and the Ivy League, while praising each other for having “good judgment,” and being “reasonable” and “non-partisan.”

The relative ease with which Elena Kagan is being confirmed to a lifetime appointment on the Supreme Court illustrates the extent to which Establishment America believes that a member of the club in good standing – someone who has gone to the right schools, and gotten the right kinds of jobs, and befriended the right sorts of people – can be counted on to do the right thing, even though her own legal and political views remain largely unknown. Naturally, from the establishment’s perspective, the right thing is to do nothing that might seriously disturb any of the social arrangements that continue to serve its interests so well. And in the end, Obama’s faith in Kagan is most likely based on a well-warranted belief that, as a Supreme Court justice, she will prove to be as acceptable to that establishment as Obama himself.

While this isn’t really that harsh of a critique… It certainly is not praise… and does not indicate to me Kagan will be much more than a dependable liberal vote on the court… which is exactly what Obama wants.

Elections have consequences people… you gotta remember that.