Day Eight of Stengel-gate: Why Was Richard Stengel Presented as an Expert on the Constitution on NPR?
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
To give a quick review, on June 23, Richard Stengel wrote a cover story* for Time magazine rife with factual errors. Eight days ago, I published a piece here outlining thirteen of those errors in that story. The next day, I published a substantially similar piece at Big Journalism, and by then the list of errors had grown to fourteen. I said at the time that I considered it a journalistic scandal that such an error-ridden piece appeared at Time magazine as its cover story and ever since I have been crusading to more or less embarrass them into a correction.
Surely they know by now what an embarrassment that article was; some of them probably knew before the article even went to print. This is reaching the point where I think it is safe to say that their reaction—or lack thereof—is becoming as much of a problem as the initial mistake. It’s one thing to make the mistake in the first place but to leave it uncorrected as word gets around that Time published such inaccurate garbage only deepens the embarrassment. Time has already harmed its reputation by publishing the piece in the first place; now the only question is whether they can salvage their reputation by admitting finally they made an error.
But truthfully I understand that for the staff at Time, this puts them in an awful position. He is the Managing Editor, after all. How do you go to your boss and tell him that he is not only wrong, but incompetently, embarrassingly wrong, on a subject that he claims to be an expert on? (And if you think that characterization is hyperbole, I suggest you read this piece and decide or yourself.) They do need to confront, but on a human level you can understand why they are hesitant to do so. He is their boss, after all.
But that raises the question… what is NPR’s excuse? Here is a blurp for a show entitled Talk of the Nation that aired on July 4:
In the fierce debates over health care, Libya, debt, gay marriage and other issues, Americans have been getting a lecture on the meaning of the Constitution and the intentions of its authors. Andrea Seabrook speaks with Richard Stengel of Time magazine and Yale law professor Akhil Amar about the political divide over the Constitution and how an 18th-century document applies in a 21st-century world.
(emphasis added.) Now you might remember Professor Amar from a fisking I gave him a while back and you might even remember that I have a personal reason to despise the man that has little to do with the quality of his legal analysis. But I am not going to focus on Amar except to say that for all his faults, Amar is a reasonable choice as a liberal Constitutional expert and to note that I really took one for the team in listening the entire show, and his placid, condescending voice. God, he’s an irritating man.
But as the other expert, we have Richard Stengel. Really, Andrea Seabrook? You actually read that article, and thought he was an expert? He told us that the original Constitution contained no limits on federal power, that the Constitution was not law, that the framers of the Fourteenth Amendment intended to end slavery and racial discrimination in the franchise (that as actually the Thirteenth and Fifteenth Amendments, respectively), and none of those statements set off any alarm bells?
And that also raises another question. Why wasn’t there any conservative voices in that discussion? You couldn’t find one conservative who could stick up for actually following the constitution as it was written? Really?
So if you listen to the whole thing (and seriously, dear reader, don’t do that psychological damage to yourself) you get Richard Stengel consulted on issues such as gay marriage:
MICHAEL: I’m a gay person in a committed relationship of 10 years, and although we’ve done all the legal paperwork to make our relationship as legal as possible, we’re traveling to Vermont this summer to become married.
My question is: As I understand Article IV of the Constitution and the 14th Amendment, how possibly could a conservative court uphold the DOMA, as I see it just clearly – despite what anybody feels morally or socially – clearly DOMA is unconstitutional.
SEABROOK: DOMA meaning the Defense of Marriage Act. Let’s turn to you, Richard Stengel. What do you say?
STENGEL: Well, it’s a good question. I don’t know the answer to it, because the court can decide whatever it wants. But I would put your question in the context of what we were talking about in terms of originalism and the limits of originalism, because I think the framers would certainly not really understand the idea of same-sex marriage.
Marriage, of course, is not mentioned in the Constitution, nor is privacy, as Akhil mentioned it. And I do think that we have evolved socially, in terms of different things that we now believe are morally correct and morally true, and we have to – the Constitution has to adapt.
I mean, I would say that the original vision of the framers, as interpreted, is that they did want equity for all Americans and that they wanted, you know, fairness before the law. And you could argue that, you know, if Madison or Washington or Jefferson were alive today, they would be in favor of same-sex marriage.
Now this caller, Michael, knows something of what he is talking about, but Stengel is clearly clueless. That is right, the caller seems to know more about the Constitution then this so-called expert. First, the reference to Article IV, is almost certainly a reference to what is known as the Full Faith and Credit Clause. It reads:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
In other words, the caller wanted to know how, consistent with the Constitution, Texas could refuse to recognize a gay marriage performed in Connecticut. That is a good question and Mr. Stengel utterly fails to even recognize that this is the question being asked. Instead he launches into a discussion about what he imagines Washington, Jefferson and Madison would say about gay marriage generally. The problem with that analysis it twofold.
First, Jefferson is not one of the framers of the Constitution. He was in France at the time. The closest he came to a contribution to the process was to convince Madison that it was wise to add a Bill of Rights. He didn’t write any of it.
(Washington is also a dubious choice when talking about “framers” but I will give him a mulligan on that since Lincoln did the same thing.)
But more importantly, Madison and Washington are not the correct framers to consult when discussing how they would “feel” about gay marriage because they would tell you that the original Constitution said nothing on the subject of marriage—it was the sole dominion of the states. The provision that allows Federal courts to pass judgment on state marriage, in a sense, is the Fourteenth Amendment (which the listener also alluded to), which was written after Madison and Washington and the entire original founding generation was long dead. The “founders” on that topic were men like Thaddeus Stevens and Charles Sumner to name only a few. So in his attempt to channel the spirits of the founders he wasn’t even focused on the right people.
Later on we get his wisdom on the constitutionality of banning pot:
SEABROOK: Okay. Let me try you on this one, Richard Stengel. A man from the Marine Corps – he’s Darryl(ph) in Bend, Oregon – writes that he uses cannabis daily to treat both his symptoms of PTSD and chronic pain, no narcotics, no alcohol. He wants to know, he uses it responsibly, and he believes that cannabis is – the prohibition of it is unconstitutional for many reasons. Your thoughts?
STENGEL: Well, of course the high court did prohibit the use of alcohol as an amendment, and then that was overturned. I’m not sure that the Constitution says very much about that. But if you look at the use of alcohol and medication, you know, state courts right now, you know, have the predominant opinion about that. And if the states can legalize marijuana, as some states have, then, you know, that’s – you should probably live in one of those states.
Oy, where do I start with that answer? First, contrary to his suggestion, the prohibition of alcohol was not enacted by the Supreme Court. The Supreme Court didn’t ratify the Eighteenth Amendment. “We the people” did. Nor was the Eighteenth Amendment “overturned.” The correct answer is that it was repealed, again by “we the people.”
Secondly, the current Supreme Court says that even if a state legalizes pot, the Federal Government can still outlaw it and arrest people for violating those laws even if the state specifically makes that usage legal. That was determined in a recent case entitled Gonzales v. Raich, a fact that Stengel is apparently blissfully unaware of. He seems to think that states can prevent federal enforcement of anti-drug legislation. He is, as a matter of black letter law, wrong.
In order to reach that conclusion in Gonzales, the Supreme Court relied on… (drum roll please)… the Commerce Clause. So it is useful to compare what Stengel said on the application of the Commerce Clause to the growth and consumption of Pot, to his view of the application of the Commerce Clause to the “act” of not buying health insurance in his Time cover story:
One would like to think that the decision to buy health insurance — or not — is a private one. If you’re young and healthy, you might just say, I’d rather spend my money on something else. That’s your right — and it may well be a rational decision. But it’s hard to argue that not buying health insurance has no interstate economic consequences.
So according to him, all you need are interstate economic consequences in order to justify federal regulation. So how is that not present in the growing or consumption of cannabis? His own enunciated principles, if he managed to remember them and apply them evenly, would have led him to the same conclusion reached by the Supreme Court: the Federal Government can stop you from growing or using pot, even if your state purports to legalize it.
Meanwhile, later on, in discussing Citizens United, he makes this clueless statement:
Again, another area where the originalist vision is not necessarily perfectly 20/20. I mean, there were – there was no money in politics in the 18th century.
But actually that wasn’t the case. Mass media wasn’t suddenly invented in the Twentieth Century with the advent of radio. In the 1700’s, it was cash to start newspapers to praise your side and smear the competition (the ideal of an unbiased press didn’t come until much later), but it was indeed money in politics.
And then he talks about the public debt:
STENGEL: Well, yes. The – these – I think a little-known clause of the 14th Amendment, Section 4, basically says that the public debt of the U.S. can’t be violated. It’s one of the only kind of full, you know, 100 percent prescriptions in the Constitution, and it’s not something that people pay that much attention to. And I believe that the president could say that in fact the U.S. defaulting on its public debt is unconstitutional, and therefore I, as president, will take these extraordinary measures to avoid that from happening.
And I think certainly if you, again, look at the original intent of the framers, I think, they certainly didn’t want the U.S. defaulting on its debt, and part of the reason that the Constitution was created in the first place was to have an organization, a central government that could actually pay off the debts from the Revolution.
First, he is misstating what the Fourteenth Amendment says. Here’s what he said about it in his Time magazine piece:
There are those in Congress and beyond who suggest that the U.S.’s not raising the debt ceiling and defaulting would be a lesson to a spendthrift government not to borrow more than it can repay. But the idea that we can default on our debt is not only reckless; it’s probably unconstitutional. No one is saying the debt is wise and prudent — far from it — but defaulting on it flies in the face of one of the few absolute proscriptions in the Constitution, Section 4 of the 14th Amendment: “The validity of the public debt … shall not be questioned.” The idea is that the U.S. shouldn’t weasel out of its debts.
Saying the debt shall not be questioned has very little to do with whether Congress must pay it and by what means. He goes on to argue that based on this little clause in the Fourteenth Amendment, that the President can unilaterally place America even further into debt, writing in the same Time article:
But if in the end Congress seems intent on allowing the U.S. to default on its debt, the President can assert that that is unconstitutional and take extraordinary measures to avoid it. He can use his Executive power to order the Treasury to produce binding debt instruments that cover all of the U.S.’s obligations around the world. He can sell assets, furlough workers, freeze checks — heck, he could lease Yellowstone Park. And it would all be constitutional.
So, according to him, this clause empowers the president not merely to pay the debt, but to incur more debt. I mean that is the crazy place we are in, where somehow Washington has agreed that it is impossible to make our payments on our debt without borrowing more money. But what Mr. Stengel failed to notice is that another part of the Constitution specifically reserves the right to Congress and Congress alone to put us into debt. In Article I, Section 8, Paragraph 2, it states that “Congress shall have the power… [t]o borrow money on the credit of the United States[.]” That means Presidents don’t have the power to do so, the Court doesn’t, and only Congress does. And nothing in the language of the Fourteenth Amendment suggests that they were granting to the President the right to take us further into debt without Congress’ consent.
None of these errors are as egregious as the fourteen errors I found in his Time cover story. But still any person who tuned into that show was positively miseducated by Stengel’s clueless commentary. Despite his evident incompetence on the subject of the Constitution—obvious to anyone who read his Time cover story—he was held up as an expert on the Constitution, and his disinformation was launched on unsuspecting listeners as gospel.
Which makes the message of the last caller they had on the show unintentionally ironic:
MIKE: First of all, I just got to give you guys a big shout-out and thanking you for this sort of civic discussion. This is the sort of thing that, frankly, some little bit of public funding is appropriate because it’s the sort of civic discussion you just don’t get in any other media. So thumbs up to NPR on Fourth of July. It’s very appropriate.
That’s right, dear reader, Richard Stengel was allowed to spew his nonsense on the radio and you had the privilege of paying for it.
At the very least, NPR owes its listeners an apology and a correction for each of his repeated errors.
And yes, you can be sure I will be writing the Ombudsman about this.
* Please note that I am no longer going to link to his story directly. You can find a link to the pieces listing the serial errors he made if you want to fact check them, but I am no longer going to increase that site’s traffic directly.
[Posted and authored by Aaron Worthing.]