April 8, 2010

Constitution and the Process


Today we’re mired in the process mentality. It has brought us disasters like the health racketeering bill and a widespread willingness to accept the rogue “supreme” court’s Citizens United decision. Those who are actuated by principles of justice and the love of freedom have always insisted that core principles must guide all politics and judge all policy. The process ideology denies this, sometimes in principle, always in practice. Instead it will toss around the empty names of ideals while accepting any result no matter how offensive to the essence of the real ideals, as long as it can go through the motions of a spurious formality, the established “process”. If this is done by the book, then the book is judged only by whatever exalted word is scrawled on the cover, no matter how pornographic the contents inside.
So there’s an abyss between principled activism and fraudulent process-mongering.
This divide is not new, however. It goes back to the dawn of this country. In the struggle over the great question of constitution itself, the first time this rift opened up it gaped wide enough that it could bring forth a revolution.
As America entered the 1760s, as Britain began its attempt to impose a far more ponderous control over the lives of the colonies than it ever had hitherto, the question, What is the constitution?, loomed large.
The conventional view was that the constitution was co-extensive with existing institutions and mechanisms. In particular, the constitution was the body and action of Parliament itself. Principles like the right to life and liberty were considered part of this, but to exist in reality only insofar as they were embodied in institutional action. So in a sense, “liberty” was whatever the law said it was.
The loyalist Charles Inglis gave one of the best statements of this concept:

What is the constitution, that word so often used – so little understood – so much perverted? It is, as I conceive – that assemblage of laws, customs, and institutions which form the general system according to which the several powers of the state are distributed and their respective rights are secured to the different members of the community.

What did he mean by “perverted”? Although this viewpoint was the consensus in 1760, Inglis actually wrote that in 1776, in reply to Paine’s Common Sense, which was a fervent expression of the opposite concept: that the constitution was not the procedures which in theory animated the principles, but the principles in themselves. The procedures, including the very sovereignty of Britain over the colonies, were to be judged valid or invalid according to whether or not they enlivened the principles and enhanced their reality.
This idea was an outlier at first. Even aggressive patriots like James Otis tried at first to reconcile greater colonial independence with established constitutional ideas. But as the controversy intensified the evolution of thought accelerated, and the concept of constitution as fixed principle spread along with the other great political innovations of the day.
In 1768 Sam Adams wrote, “the constitution is fixed; it is from thence that the supreme legislative as well as the supreme executive derives its authority.” That same year William Hicks denied that statutes were part of the constitution as opposed to tools of it. The next year John Zubly made the strongest assertion yet, that Parliament “derives its authority and power from the constitution, and not the constitution from Parliament.” This was the most forceful direct contradiction of what had been gospel just a few years before (and of course still was to the British). “The constitution is permanent and the same”, while Parliament and its processes are just executors.
From then onward the schism became clear. It was the constitutionalism of fundamental principle vs. the constitutionalism of institutions and processes. The innovation was to separate principles and exalt them as the transcendent boundaries of government action, of the “process”. This was the true constitution, while the mechanism, the process, was degraded to a tool of this constitution, only to operate within its bounds.
(On a deeper level, this struggle of principle vs. process is a manifestation of one’s view of morality and legality in themselves. Does morality exist, or is it simply coequal with what’s legal? Do you believe the law is to serve man, or man the law? The former means the law must serve the principles which make us human, while the latter degrades the definition of “human” to being a slave of the process.)
So what’s our thesis? Just as the first time round constitutionalism and the action which springs from it had to shift from the process mentality in the 1760s to the fixed constitution of principle in the 70s, so today again freedom activists have to reclaim our constitution from the mire of “process”.     
Today we’re in a situation where the process mentality has largely engulfed the space previously dedicated to constitutional and public interest action. I’ve written about this before and don’t need to reprise the basics here.
I do want to explore this one more case study, however, since where it comes to the Citizens United case even usually good activists like the ACLU and commentators like Glenn Greenwald were capable of taking a radically pro-corporate, anti-public, anti-constitutional stance. That’s how pernicious the process mentality is among those beholden to it.
Just like with health care, with the SCOTUS case the dividing line is corporatism vs. constitution and democracy. That’s the defining struggle of our time, all issues are defined in light of it, and all political positions are positioned according to it, whether people are aware of that or not.
That’s why looking at anything from any kind of “process” point of view, like so many supposedly rational commentators have with the corporate speech case, is always wrong, and will always put you on the wrong side of things. It’s because the process itself has already been hijacked.
Yet when it counted Greenwald, sometimes able to see this big picture, chose to exalt “process” over every other value in shilling for this nonexistent “right” of racket speech.
(He also went to great lengths to analyze the decorum of the process.)
Shortly after the decision Linda Greenhouse analyzed the contradictions which mix you up when you’re beholden to process instead of principle. Greenwald thought this decision was good constitutional process? But what about jurisprudential processes: activism vs. restraint, and being consistent in how a particular court operates? As Greenhouse highlights here, the Roberts court contradicts itself in both of these process ways. Doesn’t Greenwald care about those processes? (Greenhouse wasn’t actually directly replying to Greenwald in her analysis, but I couldn’t help reading it as such a reply.)
Those of us who focus on outcomes, and are guided by principles, and who respect the true underlying constitution and not just the current process constitution, don’t get into such messes.
Even corporatist Stanley Fish wrote a good piece focusing on the process vs. the consequentialist legal philosophy, which basically means that equitable, common sense outcomes should be sought within the bounds of the law, and if a law is such that it refuses to allow such outcomes, this in itself compels the strong presumption that the law is unconstitutional.
“What is the 1st amendment for?” The process ideology without further ado ignores the question and blithely says, “The 1st amendment is the process of entities speaking, and the process of courts (and pundits) talking about and deciding what it is.” With Citizens United we see how this leads to the same outcome as the law which “majestically proclaims” that rich and poor alike are forbidden to sleep under a bridge. Here ExxonMobil or ADM are the equivalents of a penniless, despised radical. The noble ideal that the 1st amendment must most of all protect fringe, weak, despised speech, is now hijacked to claim that because the people have a well-founded fear that massively wealthy corporations will use this tremendous wealth to buy influence, that this qualifies as lonely, despised speech.
The basic ideological motion here is to go from the right to be let alone to the “right” to swing one’s fist anywhere you want, no matter whose face is there.
Although Fish didn’t delve into Revolutionary history here, we see how we’re back in the original debate, asking with James Otis whether an odious law passed by Parliament, odious and therefore constitutionally void, must nevertheless be obeyed. In other words, whether the constitution is the water in which the law swims, or whether the constitution is nothing more than the ephemeral current legislature and law itself. The Founding Fathers had no problem answering that on its face such a law need not and must not be obeyed, for it is no law. The constitution is about principle and consequences, not about process as such.
So in all this we have the process pseudo-principle and a phony process goal. The bogus “principle” is 1st amendment absolutism. But the 1st amendment has to have value toward something. It’s not sacrosanct in itself, especially when a rogue court decision like this would force us into the mode of “the constitution is a suicide pact”. The phony goal is just making sure that the legislature and courts process terms like “speech” punctiliously, that they hit all the right process notes, without reference to the principle (or lack thereof) underlying it, or the end result.
(Just to make a few points on how shabby is their alleged principle, and how incompetent their “process”. If you’re trying to speak with your unassisted voice, while right next to you someone shouts through a 100′ tall speaker he was able to buy (and didn’t even build himself), you’re being censored just as surely as if you were being censored for your content. Besides, if the “market” financed artificial amplification for him and none for you, it must have done that on the basis of content censorship anyway. Indeed, the “market”, and its rigged law, probably let him steal that money.
This highlights how, if anti-censorship is the ideal, then the 1st amendment as interpreted by this court and by process liberals like the ACLU and Greenwald does not achieve that ideal, is not sufficient for it, and as a practical measure ends up subverting it.
Regarding the rigors of “process” itself. Some defenders of corporate speech as such asked about the free speech rights of non-profit groups. They’re saying “How can a public interest group have free speech rights if Goldman Sachs doesn’t?”  I have to question the competence of anyone who finds it so hard to distinguish non-profit from for-profit organizations. Sure, not every example is 100% clear, but the basic divide is clear enough, and for all the controversies I’ve heard about the IRS, I’ve never heard that they have much of a problem making this distinction. So I have no idea what Greenwald’s talking about when he pretends not to know the difference, or that you can’t figure out the difference, or that it’s somehow unsafe to impose extra restrictions on sociopathic organizations. Or deny them the full protection of public interest protections.
Needless to say, a for-profit corporation is an explicit sociopath, operating not in the public interest but at best merely amid it, and in practice always against it once the corporation reaches a certain size. This sociopathy is the explicit concept of its existence. By antithesis, the constitution is explicitly the servant of the public interest. By definition, existentially, corporatism has the goal of dissolving the constitution. So again, to say that the constitution must protect an existential traitor to it proposes to turn it into a suicide pact.
By their own congenital basis and their own testimony as to their goal, for-profit corporations are anti-social and anti-constitutional. So clearly, if we’re to tolerate their existence at all, we must allow them to exist only under very tight restrictions and the severe oversight of freedom’s vigilance.)
The best we can say of this mindset is that in mustering pseudo-principles it dreams of the good old days. It’s nostalgic for the heyday of the Warren court, for when the amendment procedure functioned sometimes for the public good, for when elections might sometimes offer real choices and not have been subject to outright theft. (Ironically, Citizens United only further tightens the spiral into the abyss. But it sure is punctilious “process”.) But this is no longer our democratic elections, the people’s SCOTUS, the people’s Congress, the people’s executive; all are rogues. But the process mentality is complacent about the names and the formalities. In order to cover up its bankruptcy of principle and moral shame it makes a fetish of the process, and in this way tries to redeem the simulacrum of everything it threw away.
The process ideology can only trap us in a vicious circle. Something like Citizens United only further corrupts the election process to keep government in the stranglehold of criminals, who further turn the whole system into kleptocracy, while every step of the way the process liberals support the intensifying vice as they implicitly applaud the results even as they often nominally decry them. They may shed crocodile tears, they may rend themselves in lamentations, but wherever real reformers declare that the berserk process must be arrested, even the best of the process liberals side with the process. Never mind that something like Citizens United promises more war, more torture, more assault on civil liberties, and greater assaults on true free speech. To the process freaks, it’s simply incomprehensible that the name and the form and the process “free speech” could be hijacked away from the real principle and the real essence.
[To the extent that these process rogues style themselves “free speech” absolutists, as if they can conjure up a coherent principle there, we see a prime example of how anyone with a special interest is unreliable for the real freedom struggle. I call them myopics. A myopic may sometimes or even usually be able to see the big picture. A generally good principle like free speech may usually lead to the right positions on civil liberties, torture, war, many other things. But it’s a convoluted path, because it derives not from an objective view of the broad anti-corporate struggle, but from the myopic path of some subjective parochial “absolute”.
As I said, under optimal conditions this can usually be alright, but under the adverse conditions of a kleptocracy and renegade structures like this SCOTUS, it forces one inexorably into self-corrupting “process” betrayals if one is to be able to hold onto the myopic principle under those conditions at all.
Only that can lead a good freedom activist into such a perverse result as supporting the Citizens United decision. In the end any myopic, however upstanding when the weather’s fair, is likely to double-cross any bigger cause, no matter how much he claims to support it. The way the whole menagerie of “progressives” happily sold out single payer and then even the meager “public option” crumb (and got nothing in return) will probably go down as the most complete self-collapse, the most thorough scouring of the deepest abyss of spiritual decrepitude and moral cowardice, our age will have the misfortune to experience.]
I should stipulate that the original “process” ideologues of the 1760s were still motivated mostly by principle. Even John Adams originally held that the constitution was “a frame, a scheme, a system, a combination of powers”. Today, on the other hand, they’re almost all mercenary corporatists just seeking the most profitable outcome. (I chose to focus on Greenwald precisely because although he’s the rare exception who is not a shill, when he lapses into process mode he still ends up being just as incoherent and self-defeating.)
[Just to chuck in one more example of process, a truly disgusting one. (I’ve had this note sitting around since the Bernanke hearings waiting to be used somewhere.) In voting for cloture even though he intended to vote “No” on confirmation, Al Franken put on a real clinic in process taken to the level of insanity. According to his explanation, Franken’s principle isn’t that heads must roll, that Bernanke must be punished for his monumental screwups, that he should be punished as one of history’s worst economic criminals, or that he should even be prevented from continuing his crimes. No, his “principle” is the sanctity of the process, without reference to any other principle or goal, utterly unmoored from any moral context. (We can say the same of those who still want to do away with the filibuster on “democratic process” grounds even though we know this Senate will never again pass good legislation, only bad, and so from here on the best we can hope for is gridlock.) Prozess uber Alles.
In this he’s typical of politicians and everyone involved with politics, including the MSM.]
We freedom activists, we creatures of principle, must redeem constitutionalism from its relapse into “process”, and the constitution from its Babylonian captivity at the corporate royal court, where it’s painted and laden with garish jewels to dance for the lascivious pleasure of Wall Street and Washington.
Only by combining direct, on-the-ground democracy, freedom vigilance, and constitutional theory as based on avowed principle, with laws odious to this principle being void in the extreme sense, can we build a coherent, just new society.


  1. Thank you. Excellent read.

    Comment by dirtyjerzangel — April 8, 2010 @ 2:26 am

  2. Russ wrote:

    “By definition, existentially, corporatism has the goal of dissolving the constitution. So again, to say that the constitution must protect an existential traitor to it proposes to turn it into a suicide pact.”

    Walter Lipmann, who seemed to straddle the line between status quo operative and critic of the status quo, once asserted that one could not simultaneously invoke a right in order to destroy it.

    I argued with my former (and now deceased) father-in-law lawyer about the validity of Lipmann’s claim. I supported it, while my Father-in-law, did not.

    What you are describing strikes me as a sort of variant on this peculiarity of our Constitution where clearly it is a bad faith gesture to use the tool for the purpose of destroying the tool shed, and yet, The Constitution, at least technically, allows for such antics. Or does it?

    Having said that, I think this is one of your most effective posts, and I think you do an excellent job of dissecting the workings of (byzantine) “process” that seem designed to leave what is left of our Constitutional Republic in a shambles.

    Comment by Edwardo — April 9, 2010 @ 5:17 pm

    • Yes, it does technically allow for all sorts of subversions.

      I’d start with the moral and rational foundation that it’s incoherent to demand protection of a right you’re committed to destroy. We owe good faith and fair play only to those with whom we do in fact share some common ground.

      But as you said, this system’s been set up to allow those who want the destruction of society itself to use our own rules against us. We may be able to afford that luxury where it comes to the weak and despised. Common criminals, however odious, are no existential threat to the constitution.

      But where the existential enemy is so entrenched and powerful, it’s absurd on its face to say we have to be tolerant and reverent toward every technicality as if he were some powerless nuisance.

      It’s like facing the threat of nuclear annihilation. Once that happens, it’s all over. There could be nothing left to fight to redeem. So the redemptive fight has to play out before our humanity is destroyed. The real constitution must be asserted even and especially where the paper expression is being hijacked.

      So it is with the annihilation that looms, creeping corporate totalitarianism.

      Comment by Russ — April 10, 2010 @ 2:37 am

  3. “By their own congenital basis and their own testimony as to their goal, for-profit corporations are anti-social and anti-constitutional. So clearly, if we’re to tolerate their existence at all, we must allow them to exist only under very tight restrictions and the severe oversight of freedom’s vigilance.)”

    Yes, totally agree, but what if the oversight folks are crooked? It seems to me, especially these days, the people doing the overseeing are too easily bought off. Hell, I mean, what are our congressmen supposed to be doing? What of the army of beaurocrats and other assorted and sundry government workers running around out there with the charge of enforcing basic honesty and corporate responsibility?

    Russ, this is a heavy (as in deep) bit of thought you’ve committed to electronic paper here. I’m not sure I’m capable of understanding it all. I think I get it, but I wish you’d break it down a bit more. Process – meaning “whatever it takes to get to the outcome we desire”? You seem to be, like me, a guy that just wants to live by the constitution as it was written. We have the Federalist Papers and other writings from the founders to help us interpret some of the passages where we might get hung up on their now somewhat obscure use of certain words and phrases, but overall, if I understand you correctly, you’re saying the constitution just needs to be enforced and lived by – as written – as best as humanely possible. Maybe I’m not getting you on that, but that’s damn sure what I believe. I’m sorry if I’ve got you wrong. I think I told you before I’m definitely not the brightest crayon in the box. But you and your writings here dang sure are adding some color and life to this worn-out and sick-of-being-lied-to “crayon.”

    Comment by Bloodgroove — April 9, 2010 @ 8:06 pm

  4. I hate spelling words incorrectly. “Beaurocrats”? That’s almost funny, but I’m sure a genuine bureaucrat would be insulted. Hey, maybe I’m onto something…

    Comment by Bloodgroove — April 9, 2010 @ 8:08 pm

  5. I want for the people to live by the constitution, and the way it’s written should be good enough.

    That would include rolling back the existence of corporations to the way the Founders envisioned their limits: Corporations can only be chartered for specific purposes which require large-scale capitalization, their activities would be limited to the purpose for which they were chartered, and the charter would be for a limited span of time only.

    Of course such corporations would only be “persons” according to the technical criteria of their charters. The notion that they have something like freedom of speech or religion is odious to the Bill of Rights, a hijacking of it.

    The oversight folks are always crooked, because the rackets will always corrupt them. That’s why if we allow the rackets to exist we must submit to their tyranny, while if we want to reclaim our freedom, we must smash the rackets.

    If we don’t allow the rackets to exist at all, if we were vigilant at the outset, then we wouldn’t need so much “oversight”.

    Getting rid of big corporations is also the key to getting rid of big government, since the main purpose of government today is to serve as corporate bagman and thug.

    It’s only corporate wealth and prerogatives which require the existence of big, aggressive government. You can’t have the former without the latter.

    So anyone who really wants to get rid of big government has to want to start by getting rid of big corporations.

    (The Republicans are therefore liars when they claim to be anti-government, since what they really want are ever bigger, ever more powerful rackets; therefore it follows they really want an even bigger government, but which is even more corrupted.)

    Comment by Russ — April 10, 2010 @ 2:58 am

  6. Morning, Russ. Just wondering what you thought of this: http://blogs.wsj.com/washwire/2010/04/10/ron-paul-barack-obama-is-not-a-socialist/?mod=rss_WSJBlog

    Sounds like Ron might be reading this blog.

    Comment by Bloodgroove — April 11, 2010 @ 1:21 am

    • Morning. That’s Paul stating what should be the obvious.

      What a testament to political stupidity, that such masses of “liberals” and “conservatives” share the delusion that Obama’s a progressive/”socialist”, when his every action proves to the point of tedium that he’s a corporatist in exactly the same vein as the power structure in general including both Washington parties.

      Comment by Russ — April 11, 2010 @ 3:22 am

  7. “So anyone who really wants to get rid of big government has to want to start by getting rid of big corporations.”

    That’s interesting, and honestly, until I started reading you, I never thought of it that way. With the quote above as your guide, what are your thoughts on organizations like the NRA? I’m sure you know it’s a HUGE organization. Honestly, I don’t know if NRA is considered a “For Profit” by the government or not. I’ve been a life member for a long time, and they do really get on my nerves with their constant begging for money. I used to give them enough money a year to pay for an annual membership (even though as a “Life” member I did not have to) just to help out the organization. But that attracted sooooo much mail from them that I had to stop. Anyhow, kind of off on a tangent there. As I said, Just wanted to hear your thoughts. I can see the principle you outlined above as applying to NRA, but at the same time, I can also very clearly see how if NRA wasn’t around we’d be even more restricted when it comes to firearms freedom.

    Comment by Bloodgroove — April 11, 2010 @ 9:31 am

  8. The NRA’s classified a non-profit. Though I believe you about the solicitations (every group is like that; begging knows no ideology 🙂 ).

    I think non-profits are mostly either beneficial, innocuous, or tolerable, depending upon whether they seek a public interest or anti-public goal. I suppose some of them might get big and powerful enough as to become de facto rackets. I haven’t completely thought it through yet, but I figure that’s nowhere near as much of a problem as the for-profits.

    As far as the NRA, I think most of what it does is good. One of the few things we have going for us vs. incipient tyranny is how abundant and decentralized firearms ownership is. Sometimes I figure the Republicans must secretly think they did too good a job of empowering gun rights.

    Comment by Russ — April 11, 2010 @ 3:20 pm

  9. Well, what you got me thinking was how it’s possible NRA could be paying the opposition to come up with legislation that keeps the NRA membership sending in the bucks.

    Comment by Bloodgroove — April 11, 2010 @ 3:47 pm

    • I guess that’s possible. I think what usually happens is that interest groups on opposite sides of a heated issue have a symbiotic relationship. They use the specter of one another to appeal to their respective bases for funds, and in that way become dependent upon one another and upon the propagation (rather than the solution, if possible) of the controversy.

      Comment by Russ — April 12, 2010 @ 4:16 am

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    Pingback by Hail to Blogging! « Volatility — April 12, 2010 @ 4:03 am

  11. “Symbiotic relationship.” I like that much more than my conspiratorial “paying the opposition” theory. It’s a simple idea, and as such – much more likely to be true.

    Russ, you’re like a surgeon thrusting and parrying with a verbal scalpel. I’m like a club-footed Neanderthal swinging a stone axe made of words.

    Comment by Bloodgroove — April 12, 2010 @ 7:03 pm

  12. […] such as in Greenwald’s case his myopic fetishized version of the 1st Amendment. As I said in my post on Constitution and Process, this fetish of process over substance and result ends up betraying the substance and helps […]

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  13. […] to critique and change the Constitution in the fact that the American Revolution’s ideology established the sovereign constitution to be prior to any written Constitution, and therefore according to sovereignty*, as explicated and practiced in the course of the […]

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  14. […] and human decency into account. And this doctrine of compliance with outrage also contradicts the American Revolution’s fundamental principle of constitution, that the forms of the law are valid only insofar as they uphold basic the verities of human […]

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  15. […] define a society, its true character and aspiration. A written constitution is then supposed to be an adequate expression of this sovereign constitution, and from there written laws are supposed to adequately supplement the written constitution in […]

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  16. […] their residual “conscience” by wanting the “proper forms” to be followed. (This process mentality is characteristic of liberals as a whole, though with Obama’s normalization of fascistically aggressive corporatism, liberals have […]

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