Thursday, March 14, 2013


I'm supposed to be pumping my fist triumphantly in response to a confrontation that took place this morning in the Senate, some time before the Judiciary Committee approved a bill to ban assault weapons:
The 10-8 vote came after a heated exchange between Sen. Dianne Feinstein (D-Calif.) and Sen. Ted Cruz (R-Texas), who Feinstein scolded for giving her a "lecture" on the Constitution....

Feinstein became furious at one point with Cruz, who she saw as lecturing to her about the meaning of the Constitution and why the framers of that document used certain language.

"I'm not a sixth grader," she told the freshman Tea Party favorite. "I'm not a lawyer, but after 20 years I've been up close and personal to the Constitution. I have great respect for it ... it's fine you want to lecture me on the Constitution. I appreciate it. Just know I've been here for a long time. I've passed on a number of bills. I've studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture."
Here's the problem: Right-wingers (e.g., The Weekly Standard and Fox Nation) think the exchange was a win for their side -- and if people in the middle see a clip of this, I'm far from certain that they're going to think Feinstein was in the right.

As a good liberal, I'm supposed to see a veteran legislator with firsthand experience of gun violence lecturing an arrogant young whippersnapper. But when I try to imagine the way someone without preconceptions would watch this, I see Ted Cruz coming off as a reasonable and well-informed guy -- and Feinstein coming off as dodging his opening question, which is as follows:
If I might pose a question to the senior senator from California: In your response to Senator Cornyn, you mention that there's some one hundred pages of the bill that specify particular firearms that, if this bill were passed, Congress would have deemed prohibited.

It seems to me that all of us should begin, as our foundational document, with the Constitution. And the Second Amendment of the Bill of Rights provides that the right of the people to keep and bear arms shall not be infringed. The term "the right of the people," when the Framers included it in the Bill of Rights, they used it as a term of art. That same phrase, "the right of the people," is found in the First Amendment: "The right of the people to peaceably assemble and to petition their government for redress of grievances." It's also found in the Fourth Amendment: "The right of the people to be free from unreasonable searches and seizures."

And the question that I would pose to the senior senator from California is, would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment's protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?
I know it's hard, but try to watch this if you didn't have a rooting interest. Cruz isn't heckling or patronizing Feinstein -- he's asking her whether his analogy is valid. It's a reasonable question -- and not a particularly hard question to answer, particularly with regard to the First Amendment, because we have all kinds of laws that restrict what people can read that are regarded as constitutional: laws against libel, laws against child pornography, laws against adult pornography, laws restricting the release of government secrets, copyright laws, laws restricting false claims in commercial speech.

Feinstein should know that this is the answer. Feinstein should also know that there are a tremendous number of other ways in which the right to free speech is restricted. You need a permit for certain kinds of demonstrations. You can be prevented from standing outside a house at three in the morning and hectoring the residents with a bullhorn if noise restrictions forbid that. You have only as much workplace free speech as your boss allows. You don't have First Amendment carte blanche to threaten and intimidate people.

The answer to this question is that every constitutional freedom is understood to have limits except the right to keep and bear arms, at least as the gun community interprets that right. (Cruz's citation of the Fourth Amendment is absurd -- the Fourth Amendment restricts only "unreasonable" searches and seizures, leaving a fair amount of leeway for lawful ones.)

Faced with the opportunity to trump what Cruz regards as his ace, Feinstein fails. After her complaint about his "lecture," Cruz restates the question: "would it be consistent with the Constitution for Congress to specify which books are permitted and which are not?"

She replies: "The answer is obvious: no." Thus giving the round to Cruz, and passing up the opportunity to point out that the answer is not obvious.

Pat Leahy compounds the problem by bringing up the utterly irrelevant issue of Texas curriculum standards -- now, I yield to no one in my contempt for those standards, but every education board selects some curriculum materials and rejects others, so even if Texas's choices are far worse than others', that's not a free speech issue.

Eventually, other Democrats (and ultimately Feinstein) mention child pornography. As the clip cuts off, Dick Durbin says the right thing: "None of these rights are absolute. None of them."

But it shouldn't have taken all the Democratic senators on the Judiciary Committee that long to arrive at the right answers. If the right is going to continue generating cockamamie ideas at its current furious pace and disseminating them relentlessly through all available means (everything from Fox News and talk radio to your uncle's e-mail forwards), and if the mainstream press is going to continue to treat the party of these ideas as a serious and responsible partner in governance, and if this party is still going to continue to win plenty of elections and control much of the government, then Democrats have to be able to refute this cloacal tsunami of bad ideas on their own terms. If a guy like Ted Cruz is going to go all "constitutional" on Dianne Feinstein, then she and her fellow Democrats need to know precisely how to throw the way the Constitution has actually been applied in the real America (as opposed to Tea Party Fantasy America) back in Cruz's face.

Otherwise, we're going to wake up one day with Ted Cruz as President Rand Paul's first Supreme Court appointment. And low-information heartland America will have no idea why anyone would have a problem with that.


Victor said...

"Feinstein should know that this is the answer."

Yes, but she she stooped to the Republican level.

The problem is, that this smug and impudent weasel-faced ratfucker, comes across as such a smarmy know-it-all, that people, even Senators, want to take him down a notch or two, or twelve, and respond emotionally, instead of intellectually.

Republicans do "emotional" very well, but can't do "intellectual" at all - Democrats are the opposite.

Democrats in Congress need to remember to stick to their strengths.
Let the Republicans stay on the low-road.

Cruz is obviously highly intelligent. But he is not "emotionally" intelligent at all.
He is a classic sociopath.

He's a smarter "Tailgunner Joe."

trnc said...

In what should have been Feinstein's answer, I would add that Article 2 section 2 of the constitution explicitly gives congress control over the training and organization of the militias, and it's highly disingenuous to pretend that such authority doesn't include the ability to decide which tools to use.

Matt said...

Just wanted to highlight "cloacal tsunami of bad ideas." That's just brilliant.

Steve M. said...


Uncle Mike said...

trnc--kudos for remembering that clause. In the rush to own personal cannons and anti-aircraft guns, many on the right forget (or ignore) about the 2nd amendment being "well-regulated."

Unknown said...

Totally disagree with you here, Steve. Cruz is mansplaining; Feinstein knew he was mansplaining, and she responded as one would expect a woman to respond to mansplaining.

I would, as gently as I can, suggest to you that perhaps the reason you see nothing unreasonable about Cruz's reply is that you don't recognize mansplaining when you see it, for obvious reasons (which does not mean a man cannot recognize mansplaining, but clearly it's something women are much more sensitized to than men are, in the same way a black person would be more sensitized to and quick to recognize subtle racism.

Unknown said...

"Anonymous" is me, Steve. Kathy Kattenburg. Sorry about that.

aimai said...

No, we are not going to wake up with Ted Cruz as President. The asshole vote is never going to go above 27 percent. No single incident, no single play for the peanut gallery, is going to add up to a knock down win for these assholes. There are going to be millions more incidents before he even gets to the primary and he may well win the primary but no one who can win the Republican primary can pull liberal/independent votes anymore. Its just not going to happen. Romney got as close as he did because (some) people couldn't believe he wasn't just posing as a wingnut. From now on out, however, none of the Republican contenders will ever have had a different pedigree, a different life, to point back to.

Neither Ted Cruz nor Rand Paul will ever pull the "sensible centrists" to the right. And they won't even bother to pose as centrist for the sake of getting over. Cruz lost that battle with Feinstein with everyone except people who already agree with him and basically stick their fingers in their ears when old broad dems speak. Nothing she said would have disturbed their comfort.

I think, contra what you are arguign, that she used very specific and highly effective factual language: "I've seen bodies...we need to do something" is, in fact, EXTREMELY persuasive to the majority of Americans who don't give a fuck about constitutional fetishism.

Steve M. said...

The asshole vote is never going to go above 27 percent.

Yeah, but 27 percent of people who are eligible to vote now will add up to what percentage of people who are eligible to vote after the Supreme Court mugs the Voting Rights Act in a dark alley?

And who's going to be the "liberal" media darling in 2016? Maybe not Rand -- though he's certainly been the LM darling this past month -- but very possibly Jeb or Marco Prettyboy or Paul Ryan. (Or do you think the media will someday stop jonesing for us societal losers to get screwed out of our entitlements?)

Ten Bears said...

Out here on The High Desert we old timers chuckle when the fools and newcomers predict the weather. Three years out. Let's not let the media rope us into another horserace just yet, it's just another distraction.

No fear...

aimai said...

I'm not even worried about the mugging of the voting rights act. The harder they try to keep people from voting the more people want to vote. Most of the ways they keep people from voting just shave a few people off of a larger, non voting population. If the dems activate all their potential voters there is going to be a fucking tidal wave. One of the voting groups the GOP has lost are women--single women--but no method can be devised that disenfranchises young single women that doesn't also disenfranchise young white men. Same damned category of people.

There's really no coming back from the demographic ditch they've dug themselves. I don't care what they manage to do in places like South Carolina they can only make red states redder and it won't make a damned bit of difference.

Steve M. said...

Let's talk again in November '16 -- or November '14.

Luigi said...

Feinstein knows the answer. It came to her as she tried to revive Harvey Milk's blood soaked body 30 years ago.

Bloggers who don't remember history are doomed to keep publishing the same silly column.

Philo Vaihinger said...

The First Amendment says congress shall make no law, etc.

The Second only says the right to keep and bear arms shall not be infringed.

That first is a blanket prohibition on federal interference.

The second is not, and does not promise a right to keep or bear just any weapon at all.

Clear, now?

And incorporation is a silly fraud, by the way.

Ten Bears said...

Imdeed, Philo, The Second in fact doesn't say one thing about overthrowing the government. Not one word.

No fear...

BH said...

I'm about as skeptical as SteveM is about the electoral future, for somewhat different reasons. Starting with the roughly 27% lumpenright base (which rabidly votes), the R's got up to 47-48% just last year in the Presidential election, without a gutted VRA & with perhaps the most mannikin-like R candidate since Dewey. It was never as close as Ailes, Rove et al. were fantasizing, but it was also never quite nailed down from the D's side either, as witness the disconcertingly rapid & sizable Obama poll drop after the 1st debate. Had he stumbled just one more time, it seems to me quite possible that even the hapless Mitty might have prevailed. In short, nationally the R's start from a larger base of sure voters than the D's, demographics so far notwithstanding; and among less ideologically-committed but likely voters, they retained the ability to sway numbers enough to avoid anything like a landslide except in the EC. The midterms of '14 should be telling, but right now I'd say that come '16, after a gutted VRA, with a candidate almost guaranteed to be a better campaigner than Mitty, & factoring in the inchoate "time-for-a-change" impulse after 2 Obama terms, it would be foolish to be too confident.

Steve M. said...

Luigi, I know the history. I'm old enough to remember the shootings. It just doesn't answer Cruz's question. I still think the wingers need to be rebutted on their terms, not just on ours.

Yastreblyansky said...

Yes, with all respect to the horror of the Milk-Moscone moment, is anybody sure that Feinstein isn't for gun control the way Mr. Portman has become for marriage rights, on the basis of pure (and understandable) emotion? It strikes me now and again that we don't really know much about how these "centrists" think. But I somehow don't think constitutional arguments occupy the same space in her brain.

Paul said...

At the risk of sounding pedantic, the authority for Congress to regulate the militia is found in Article I, Section 8. Cruz is being incredibly condescending. He just wants to show off that fancy book larnin' he got from the commies at Harvard!