COMMENTS CLOSED: The ankle-biters seem to think that repeating the same fallacious argument over and over again amounts to moving the ball forward in some way, and I don't have the time or inclination to respond to the same bad arguments five or six times. (This will be viewed as a "victory" by the ankle-biters, but rest assured, it's merely shaking them off to address more pressing things in my day).
Anyone wanting to make up their own mind about whether Aaron Worthing misrepresented Richard Stengel's Time article can do so without any more "help" from me or Aaron. Read on.
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Oh, Aaron Worthing. What a sad little man. Look at him — pounding the drum relentlessly at Patterico's Pontifications, trying to get people all worked up that NPR and Time magazine have turned to a guy named Richard Stengel as a constitutional expert. Stengel used to be President and CEO of the National Constitution Center and still works with their Peter Jennings Project for Journalists and the Constitution. On the other hand, Aaron Worthing — never came close to that.
But Aaron thinks he has the goods on Stengel. He thinks he has discovered fourteen clear factual errors in a piece Stengel wrote for Time magazine about the Constitution.
The problem with Aaron — and I have crossed paths with him before — is that he is one of those nutballs who — either by evil design or stupidity (I haven't figured out which yet) — likes to take people to task (or "fisk" them) for things they didn't say or write. His case against Stengel is a prime example.
I will address only six of these so-called factual errors — ones that Aaron claims relate to the Constitution and supposedly show that Stengel should not be considered a constitutional expert.
What you will see that that Aaron's mental processing is suspect, at best. Here's what A.W. wrote (link) based on what Stengel wrote (link).
STENGEL'S SUPPOSED FALSE CLAIM NUMBER ONE: "The Constitution does not limit the Federal Government."
Threshhold question: Did Stengel actually make the claim that "the Constitution does not limit the Federal Government"?
Relevant passage that A.W. relies on: "If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed." [Emphasis added by A.W.]
Analysis: So what Stengel was ACTUALLY saying was that the Constitution does not specify its intent. It is silent as to whether it intends to limit the federal government, or expand it. That's not the same as saying "The Constitution does not limit the Federal Government."
So already, you can see the little sleight-of-hand that A.W. pulls.
He then proceeds to show how it can be INFERRED that the Constitution was intended to limit the federal government, by pointing to certain passages which show limitations on Federal Power.
A.W.'s not wrong about that — if you look at certain passages of the Constitiution, it clearly limits federal power. But if you look at other passages of the Constitution, it clearly grants federal power. So, taking both together, A.W. hasn't proven Stengel wrong. He just looks at different parts of the Constitution, and comes with a different implication.
Unfortunately for A.W., Stengel wasn't talking about what the Constitution implies. He was talking about what the Constitution SAYS. Or more to the point, what it doesn't say. And it doesn't say what its intent is viz-a-viz the size/role of federal government.
Point: Stengel
STENGEL'S SUPPOSED FALSE CLAIM NUMBER TWO: "The Constitution is not law."
Threshhold question: Did Stengel actually make the claim that "the Constitution is not law"?
Relevant passage that A.W. relies on: "Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance." [Emphasis added by A.W.]
Analysis: Once again, we see that A.W. changes what Stengel actually wrote.
Stengel wrote that, in the minds of the framers, the Constitution is a set of principles, and "not a code of laws". A.W. says that Stengel wrote that the Constitution is "not law". Does "not a code of laws" and "not law" mean the same thing?
No, of course not.
Law comes in many forms. Most commonly, the law comes in the form of statutes — i.e. a written, detailed, formalized codex of laws, each with (ideally) clear and fixed meanings. Example: the United States Code.
But there are other types of law, equally binding on the citizenry. Common law — law that by its very nature exists and has been handed down through the ages, even though it doesn't appear in statutes — is binding. Judicial-made law — law that comes from judicial decisions (example: desegregation) is binding law — even though it does not appear in statutes.
And so too the Constitution. It is a set of principles AND the law. And Stengel does not contradict this. He merely states the truth: the Constitution is not a CODE of laws — statutes written with clear fixed meanings.
A.W. pretends that the word "code" is not there. Well, he HAS to, or else he doesn't have an argument to make. Or perhaps he just doesn't know what it means.
Point: Stengel.
STENGEL'S SUPPOSED FALSE CLAIM NUMBER THREE: "The Citizenship Clause of the Fourteenth Amendment emancipated the slaves."
Threshhold question: Did Stengel actually make the claim that "The Citizenship Clause of the Fourteenth Amendment emancipated the slaves"?
Relevant passage that A.W. relies on: "In drafting the 14th Amendment, Congress was definitely not thinking about illegal immigration. At the time, the country needed a lot more immigrants, legal or otherwise. Congress was thinking more practically. It wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War." [Emphasis added by A.W.]
Analysis: If you have managed to read this far, you'll have already detected the pattern. A.W. is putting words into Stengel's mouth, and then attacking him for making "false" claims.
This one (like the next one) hardly requires analysis. When Stengel wrote "It wanted to emancipate blacks….", the "it" clearly modified "Congress", not "the 14th Amendment". Stengel wasn't saying that the 14th Amendment wanted to emancipate blacks (an amendmant wants something?) or that that 14th Amendment allowed blacks to vote, but rather that Congress intended — through the 14th Amendment and in conjunction with the other amendments — to give the franchise to freed blacks. That, and not illegal immigration, was Congress's intent.
And again, what Stengel actually wrote, despite A.W.'s spin, is correct.
Point: Stengel
STENGEL'S SUPPOSED FALSE CLAIM NUMBER FOUR: "The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans."
Threshhold question: Did Stengel actually make the claim that "The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans"?
Relevant passage that A.W. relies on: "The 14th Amendment reversed that. In drafting the 14th Amendment, Congress was definitely not thinking about illegal immigration. At the time, the country needed a lot more immigrants, legal or otherwise. Congress was thinking more practically. It wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War." [Emphasis added by A.W.]
Analysis: See above (#3)
Point: Stengel
STENGEL'S SUPPOSED FALSE CLAIM NUMBER FIVE: "The original Constitution declared that black people were to be counted as three-fifths of a person."
Threshhold question: Did Stengel actually make the claim that "The original Constitution declared that black people were to be counted as three-fifths of a person"?
Relevant passage that A.W. relies on: "The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being…" [Emphasis added by A.W.]
Analysis: A.W. points out that "the infamous (and now inoperable) three-fifth clause did not declare that black people were to be counted as three-fifths, but rather slaves were to be counted that way". Well, that's fine, but A.W. apparently hadn't noticed that Stengel was making a sociological point, not a legal one. Stengel was talking about a notion that the framers gave us, rather than the literal text of the Constitution.
And while it is true that there were plenty of freed blacks in the United States at that time, those freed blacks still were affected by the stigma of slavery, and the 3/5ths "tag", if only because they were often referred to as "freed blacks" (is there any writings of the time period which referred to "freed whites"?). In other words, the idea that blacks were three-fifths of a human being inured to black people in general, even if the actual Constitution limited the 3/5ths tag to indentured blacks. It's called stigma, A.W.
Point: Stengel
STENGEL'S SUPPOSED FALSE CLAIM NUMBER SIX: "That the original, unamended Constitution prohibited women from voting."
Threshhold question: Did Stengel actually make the claim that "that the original, unamended Constitution prohibited women from voting"?
Relevant passage that A.W. relies on: "The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote[.]"[Emphasis added by A.W.]
Analysis: Like #5 above, A.W. misdirects his readers into believing that Stengel claims that the Constitution explicitly forbids women to vote. He writes:
So instead I ask you to look at the original Constitution, before the Nineteenth Amendment was added, and ask yourself if there is a single word that forbid women from voting? It isn’t there.
Now, Section 2 of the Fourteenth Amendment allows for gender discrimination in voting without any penalty in representation. But there is a world of difference between allowing something to be prohibited, and prohibiting it. Simply put, the Constitution did not say what he claimed it did.
Aaaand once again, Stengel never claimed that the Constitution actually and specifically prohibited women from voting. He never even used the word "prohibit" with respect to women voting. All he said was that we, as a society, were given the idea that women should not be allowed to vote. And how were we given that idea? Because the original unamended Constitution, for all its protections, failed to give THAT protection.
Point: Stengel
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By now, you should have the tools to go back to Aaron Worthing's original post and see the same game played over and over again. The formula, in short, works this way:
(1) Constitutional scholar Richard Stengel writes X
(2) Ankle-biter Aaron Worthing says that Stengel wrote Y
(3) Ankle-biter Aaron Worthing "proves" that Stengel was wrong about Y
(4) Ankle-biter Aaron Worthing does a victory dance and tries to make a name for himself based on 1-3
(5) Blogosphere yawns
(6) Repeat 1 through 5 until it becomes too embarassing to look at