Foolishness since 2007

Foolishness since 2007
Foolishness since 2007

Saturday, April 8, 2017

Our Constitution

I believe that the Constitution’s meaning is fixed, that whatever the words signified in the era of the Founders is what they still express today. If you don’t like the meaning, the Constitution provides a way to change it. It’s not easy to change and that is entirely proper. It should be changed only after due deliberation.

That said, court decisions over the years have changed the original meaning, sometimes dramatically. The commerce clause has probably been the most abused section of the Consitution. My opinion. So while a reading of the Consitution is easy and straight forward, knowing how federal case has defined and altered what you think it means it is a life's work. 

A personal note. I was President of a national organization for some years. That Constitution provided the means to amend it, but only after the proposed changes were published to members three months in advance of a vote. This prevented the members from adopting knee-jerk proposals that were sometimes advanced at annual meetings. When these great ideas were put forward, I would remind them that we could take a straw vote right now, but that it would only indicate the support for the idea and that if the idea was to be adopted the Constitution’s prescribed means for changes would have to be followed. That always ended it as no one felt strongly enough about it to put it writing and proceed. 

I recount this to show that while the means to change the Constitution are present, we are all a bit lazy to make the effort. We favor using the courts to chip away at changes.

On the other hand, knee-jerk changes protect all of us. Always remember that democracy led to condemning Socrates on a whim. 


  1. The strict constructionist view fails to take into account what Justice Brennan and others referred to as "evolving standards of decency." A fundamental failing of an "original intent" approach is that in order truly to get into the minds of the Founders, we have to imagine a world most still then believed to be under 6000 years old, separated from other planets by a spurious substance called the Luminiferous Aether, and extinguishing combustion through an accretion of another nonexistent substance called phlogiston, its inhabitants succumbing to diseases transmitted by toxic fogs called miasmas. That the Founders cobbled together as good a constitution as they did was in spite of these limitations, not because of them. But it is not only possible but imperative that we not fall into fetishizing such wording or intent such that it produces results that are inequitable or otherwise pernicious. This was the fatal error of Justice Taney and his colleagues in returning Dred Scott to slavery; had the Court ruled in his favor, the South might well have embarked on a peaceful transition to abolition as happened elsewhere in the civilized world. Other examples abound -- the spurious corporate "personhood" affirmed in Citizens United being merely one of the more egregious recent examples, and the equally imaginary fetal "personhood" that will sooner or later come before that same body when it is asked to privilege the interior of a woman's body as "host" and the erasure of her own manifest personhood to be replaced by an animal status of a brood mare in a worldview in which (white) men have dominion over all other creatures of the Almighty. It has been well said that the intelligent victor presents his demands to the vanquished in installments, so we should not be surprised to see such erosion of fundamental human rights implemented in increments. But those of us old enough to have known survivors of the Holocaust are only too familiar with the scenario, and we rightly fear that such abuses are not merely possible but increasingly likely in the name of a strict-constructionist approach to constitutional jurisprudence. As for Socrates, I.F. Stone's book on his trial and condemnation argues persuasively that why the Athenians condemned him was for his antidemocratic teaching, the animating philosophy of which was adopted by the Thirty Tyrants with sanguinary results. See Stone, THE TRIAL OF SOCRATES, published by the cold-roast-Boston firm of Little, Brown & Co. in the late 1970s. The underlying question is whether we as a nation prefer to be a democratic society or a plutocracy. There is a continuum between these two extremes, but as should be obvious from the foregoing, I believe we are better off if we lean towards the former and resist the latter. So thought the majority of American voters in this last election, and it is disgraceful that we didn't get the president we elected, owing to the quaintly oligarchic institution of our Electoral College and its prima facie flouting of the Fourteenth Amendment.

  2. Anonymous, a well written argument. I can not agree with a single point. You did not address my principal point that I am unalterably opposed to changing the law through the courts. The Constitution can be amended. All laws can be changed, but that is reserved to legislators.

    Whatever the reason for condemning Socrates, it was later regretted. The whims of democracy can be bloody. Just saying.

    I will leave you with one word. Gorsuch.

  3. Amen! Courts enforce what legislators legislate! One thing that so many people don't seem to understand is when the courts "make" laws rather than enforce them, a later court can then overturn them. Thanks for sharing.

    Hugs and blessings...Cat

    1. You are so right, Cat. Article III gives no power to the courts to make laws. None. It's infuriating to me that Congress allows the courts to make laws. Of course if Congress is Dem controlled then it makes sense for them to let the courts make the rules and avoid tarnishing their skirts.

      I reject out of hand the evolving argument. If we are really evolved, follow the rules and change the law. None of cowardly slip it in.


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