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Posted October 15, 2005
re: Constitution

Will the Real Dumbass
Please Speak Up?

Wirkman Virkkala

Just as the definition of fluff is not itself fluffy, the analysis of comedy is itself notoriously dour stuff. So the analysis of comic material almost never used, below, won't make the S.J. Perelman Memorial Anthology for Rip-Snorting Wit and Laugh-Out-Loud Wisdom. Take this as a warning. Besides, the subject I'm working up to is judicial philosophy.

Still, let's start with something funny. Or: Someone. Jon Stewart. His Daily Show is great (if vulgar) fun. Why?

He gets a lot of mileage out of making fun of people who can't see the obvious. Who say the exact opposite of the obvious. People for whom the obvious does not even blip every now and then into existence in their minds' radar. Who? Politicians.

Most particularly, Republican politicians. Conservatives. O, them wacky conservatives! Of those not Republican, of those who lean somewhat left, the jokes tend to surround their pomposity or their inability to keep their private parts private. Sometimes he just makes fun of their weight. But their inherent inability to speak truth when in power? Not so much.

Remember when our less-than-beloved VP excoriated an interviewer for her claim that he had said something, and how he informed her, point blank and with a huge helping of self-righteous indignation that he had never ever said such a thing? Ah, Jon Stewart was there that night, with the video clip of the Vice President the year before saying that very alleged thing. Gotcha. We know who lied. We know who blustered. We know who couldn't be trusted (VP) and who could (JS).

But he often goes further. He often makes fun of Republicans' ideas. But Democratic ideas? Well . . . he had Chuck Schumer on, recently. Schumer was there to explain why he had voted against Judge Thomas. No, I mean Roberts, Judge Roberts. Schumer made himself very clear. He seemed the very paragon of honesty. He stated his worries and concerns, and he identified the real enemy: Justice Clarence Thomas.

People don't know what backward beliefs he has in terms of 1789. He believes that the Establishment Clause — which says separation of church and state — means that states could have established churches. So we could have the Baptist state of New York and the Methodist state of Connecticut and the Catholic state of New Jersey. He actually believes that. He believes that the Commerce Clause means that you can't regulate anything: no civil rights laws, no environmental laws.

Late-night addicts of comedy no doubt appreciated where Jon Stewart went from there. He belittled Thomas for what he usually gets the Dems for: sex. His sparring, complete with references to short hairs and Coke cans, left Schumer self-identifiably speechless. (Of course, that was an empty promise; more speech was to come.)

What Stewart did not do unto Schumer was what he would have done unto a Republican other. (Yes, for conservatives Stewart sometimes actually makes an argument.) For instance, he could have contrasted Schumer's earnest ideological rant with the actual facts.

Facts? Where? In the Constitution itself, its very plain words. Oh, and in the obvious and quite unassailable facts of America's political history. They are:

1. The Establishment Clause of the First Amendment does not say separation of church and state. Senator Schumer may like that wall of separation, Jon Stewart may like it, and I know I support it, but that's not what the document says. It says, instead, that Congress shall make no law respecting an establishment of religion. Which leads us to
2. When the Constitution was written and passed, way back in 1789, several states had established churches. Justice Thomas knows that. I bet Senator Schumer knows this. I'd have to look at America: The Book, to find out, but that fact likely crossed Jon Stewart's attention at some point of time. And this is relevant because . . .
3. The Establishment Clause is not what got rid of the established churches in the states. That was due to a long and strenuous push by people of many denominations, not to mention a few of no denomination. It happened mostly in the 19th century, within the states themselves. It's a pretty inspiring history, actually. Further, I see no reason to reinstitute churches into the very political fabric of the several states. Hey, I'm with Schumer on this. I wouldn't be surprised if Thomas is, too. He just has the wit to realize that this was not the federal government's job in 1789, the reforming of every state in the union. That was up to the citizens of the states.
4. The Commerce Clause allows our Congress in Washington, D.C., to regulate commerce between the states. No identified power in the Constitution focuses on, say, environmental regulation, and the general tenor of the Constitution is to prohibit Congress from doing things not enumerated among its tasks. So a number of the great liars of the 20th century — men with a great deal of power, and a desire to bestow more power — took it upon themselves to twist the plain meaning of the Commerce Clause to include the regulation of anything, since, after all, the arms of commerce seem to go every which way. Justice Thomas makes the reasonable case that the clause says what it says, and does not provide a carte blanche to Congress. If the snail darter doesn't cross state lines in exchange for money, then Congress may not regulate it. To pretend otherwise is to turn commerce into something looser and goofier than a teenager after his seventh bong hit.
5. Of course, this doesn't prohibit as such all regulation about the environment. That's one of the things that, according to the words of the Constitution, might very well be left to the states. Schumer's merely indignant because he wants to make a federal case out of everything. Regulating everything? Why that's a job for the U.S. Congress and no one else!

These truths are not self-evident. They are merely evident upon reading the Constitution. Schumer might try it some time. Stewart, too. Just so he could make fun of an alleged Constitutional scholar, sitting on the Judicial Committee asking question after question.

The facts are so at variance from the ideology, from all the earnest incredulity, that — hey — they should be the stuff of comedy . . . if Stewart were truly an equal-opportunity satirist. But Juvenal he is not. Juvenile, on the other hand . . .

The word might be dumbass. But Stewart isn't, really. He's a pretty smart cookie, or at least plays one nightly on the TV.

Instead, dumbass is the very word Senator Orrin Hatch used to describe Senator Schumer's questions to Judge Roberts during the confirmation hearings. Nope — not the recent hearings, but the confirmation hearings to a lower bench Roberts and the senators endured in 2003:

Now, look, I have a lot of respect for Senator Schumer. We are good friends. He is a smart lawyer. He is very sincere. He comes to these meetings and he asks questions. Most of them, I believe, are very intelligent questions. Some, I totally disagree with. Some, I think, are dumb-ass questions, between you and me.

I haven't read every word of those transcripts. I'm still looking for the dumb-ass questions. Maybe I'll find them. So far, Schumer's performance on the committee looks a whole lot better than his performance on The Daily Show. He tried to pry from Roberts what the lawyer had meant when he had used the term judicial activism as a pejorative in the past. And Roberts skillfully evaded answering.

For good reason? Well, he was even more skillful at not answering the questions in the recent hearing.

The plain, obvious fact of the matter is that people who talk a good game against judicial activism may be very clear up until the moment they appear before the Judicial Committee, fielding questions before they can take that final squat upon the nation's highest bench. They really want that position, with its tenure limited only by the circling vultures of death, and they aren't going to botch their chance by actually saying what they had previously believed.

What's the dime's difference between a Democrat and a Republican? Democrats lie about the Constitution constitutionally, as an everyday fact of their most deeply held beliefs. Republicans lie about it just before becoming Supreme Court justices.

Which is just another reason why politics is so damn funny. And why I'm not laughing.

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