The Constitution - Living Dangerously

In the preface to my blog, I note that they are: “at times controversial or even opinionated. If they cause people to think and consider and discuss then by definition their purpose has been met”

That is indeed the crux of what a blog is and the ability of readers to offer comments in an interactive format is why this unique outgrowth of the information age has become a critical means of sharing personal opinions, thoughts, reflections, comments.

In early October of this year I posted a blog in which I offered my thoughts on the debate as to whether our Constitution should be, emblematically, living or dead. The question is one that gained a degree of recognition and dialogue following testimony given by Justice Antonin Scalia.

Feedback came from both sides of the political and philosophical divide and that answers the question as to why blogs are in themselves one of the better definitions of not only free speech but also effective evidence that we are indeed a species differing from all others. We have an intellect and a free will.

To that end I have the distinct pleasure of posting a rejoinder from two friends of decades' duration. My initial response was that it also upholds that science and philosophical hypotheses both respond to Sir Isaac Newton’s Third Law: they are equal, opposite and collinear. That is how it should be.

We, Carl, Joe and I, invite others to offer their comments. Together, and in the spirit of the Founders, the title of Thomas Paine’s book will be the result as it has throughout the history of our country: "Common Sense".

From: Carl A. Palminteri & Joe McHugh

We are vital cogs living within the beast known as The Great Right Wing Conspiracy. As such we conspired to respond to your SCOTUS Blog entry.

Do with it what you will but never let it be said I (we) ducked a challenge (although it did take a bit of time to get the collaboration down pat).

The Constitution - Living Dangerously

Tom......To you, the idea of a "Living Constitution" seems both benign and useful. On our side of the political divide, though, it seems as if the idea is a threat, not a solution. To further it the Left seems to be hanging its hat on the Commerce Clause. Their use of this clause shows how "originalism," once overwhelmingly the orthodox belief of our judges, has been distorted by our present day judiciary. It is our belief that our judges have taken the plain meaning of the words of the Framers and turned the Commerce Clause into a catchall of the fanciful Big Brother whims of the 'Living Constitution' crowd. Sorry if you can see the sparks flashing here but we see this idea as very very dangerous.

As Martin Luther said, "Here I stand." The decisions of our courts must never be grounded on the personal preferences and prejudices and likes and dislikes of an individual justice. Yet that is exactly what the "Living Constitution" idea allows.

You like having it this way. Why not? It seems to you that the Living Constitution gives you results that you usually like.

You shouldn't like it at all, though.

Why?

Let's start with this hypothetical example:
Say it's a few years in the future. As it happens these few years have resulted in a swing of of the political pendulum. A (formerly) frequently liberal judiciary has now been superseded by a judiciary that contains a surprising preponderance of conservatives.

In this new era a new wave of political protests, much like Occupy Wall Street and originating on the Left, has once again spread across the nation. It is enjoying significant success and the groups at which the protests are aimed feel seriously threatened.

They thank God, though, because they have two assets that can save them. One of these assets is a conservative judiciary that has grown tired of what they view as disorder in the streets. The other is a Commerce Clause first stretched beyond recognition and then bequeathed to conservatives by their liberal predecessors on the bench.

The upshot? Recall the Sherman Antitrust Act, passed in 1890? Remember how it was aimed at monopolies but often was used to suppress labor unions as "conspiracies in restraint of trade?" Well, now we have a (living, Commerce Clause and in the right hands it can be used in exactly in the same way. So groups are protesting against business? They are hindering the smooth functioning of our economy? Isn't it important then that the First Amendment rights of these protesters be "balanced" (read, "restricted") against the need to maintain interstate commerce, the lifeblood of the nation?

We don't think that's exactly the kind of "Living Constitution" today's liberals have in mind but, absent a return to originalism, this, or something like it, could well end up as exactly what they get.

Liberals must keep it in their minds that a "Living Constitution" only lives for liberals when liberals are in power. However it will do the same for conservatives should they ever rule the roost. Looked at from this perspective, for both conservatives and liberals, the idea of a Living Constitution is really quite dangerous.

Our Constitution restricts the power of each of the branches of government, including the courts. In the case of the judiciary the mechanism that restricts them is the need to respect the original meaning of the Constitution and of the laws that the courts are called upon to interpret. It is a danger of the Living Constitution that it allows the courts to ignore original intent and by doing so to set the boundaries of their own powers.

The Constitution is a LEGAL document...not a growing baby. But, without a Living Constitution the Constitution can't adapt to a changing world, can it?

Nonsense.

The Founders knew full well that over time there needed to be room for our controlling documents to adapt. So they specifically provided for an amendment process. Indeed, it is this amendment process incorporated in the obvious original intent of the Framers that puts real life into the Constitution, starting with the first ten amendments, the Bill of Rights.
Note, by the way, that the process of amending the Constitution as laid out in Article V is specifically the responsibility of legislatures at the federal and state levels and/or of state conventions.

The Constitution gives judges no role in the process. Repeat...the judges have no role.The Constitution can be inconvenient at times and there's a reason for this. It is a simple fact that the Constitution was designed to prevent the State from being that which coerces the individual.

We can feel comfortable and safe if we live under the protection of our Constitution --- but only as long as it is not a "Living Constitution"

Hoping Our Constitution Dies?

Sometime around third or fourth grade we learned that America has three branches of government. Maybe they taught us then then that the members of one branch, the judicial, are nominated by the executive branch and confirmed by a part of the legislative. This includes all Federal judges and specifically the United States Supreme Court. Most of us probably forgot that quirk in our governmental process.

These judges serve for life, often still making decisions at ages that would be seen as inappropriate for other positions of such importance. Generally, unless we are avid intellectuals or constitutional scholars or perhaps members of the legal profession, we know little about them professionally. We see their annual picture; hear about some of their findings; watch the Chief Justice give the oath of office to the President and probably could not name the last five Chief Justices. Pointedly nor could we in truth describe precisely how and why they make their decisions.

We say we are a country of laws; well, they are the final arbiter of law-making. Their decisions are the very definition of de jure. If there is a pedestal, they are on it.

Like many of us, I don’t think I gave the Supreme Court much reflection. Oh sure, there were the famous cases: Dred Scott, Plessey v Ferguson, Brown v Board of Education, Roe v Wade, Miranda Rights and a lot of other names from Law & Order and unquestionably the bewildering selection of the winner in the presidential election of 2000.

But nothing till now got me into thinking about the philosophical values and tenets that form the persona, the soul of individual justices. I always saw them as some sort of a team. That changed.

Last week, October 5th to be precise, Justice Antonin Scalia and Justice Steven Breyer appeared before the Senate Judiciary Committee. During his remarks, Justice Scalia, longest serving member of the Court stated for the record: "I'm hoping that the 'living Constitution' will die."

He is long known as a fervent advocate of "originalism", a mode of constitutional interpretation that left to Scalia’s decision, would compel judges to look to the meaning of the Constitution's text at the time of its ratification two hundred twenty plus years ago. There is also therefore a logical corollary: to essentially ignore the significant changes that have taken place in America and the world since then, changes that have a relatively few times impelled re-examining the Constitution.

He wants his fellow law lords in the federal judiciary to look into the minds of the framers, a term that generally refers to the 57 members of the Constitutional Convention of 1787 and more specifically to Madison, Hamilton, Jefferson and Franklin and who were its primary authors.

He further sees this as a litmus-test for selection of judges, a conviction that belies the idea of free and open debate among legal scholars. Consider this: if all judges were of the same single-minded opinion, there would be no descent on any issue of constitutionality.

One wonders then why the Founders of our Republic decided that the highest court in the land would have nine members. If consistent agreement was expected by these learned gentlemen then why not three or five.

More on-point why is there an included mechanism (actually two) in the Constitution to countenance change? The answer must lie in what Justice Breyer reminded the Senate: "It is a constitution we are expounding….. to be adapted to the various crises of human affairs." This is a quote from Chief Justice John Marshall in 1819, a time in which a number of the Founding Fathers including Jefferson, Madison and Adams were still alive.

Surely, by including these measures they foresaw the necessity to “adapt”, i.e. to modify or revise or to use the very word they incorporated in the Constitution: to amend. They wisely made the process difficult to succeed but by the mere inclusion of these mechanisms they acknowledged it would be inevitably needed. They also assured that changes should not and could not be executed without the greatest deliberation, two-thirds vote in both the House and Senate and further, even requiring the concurrence of 75% of the state legislatures.

Parenthetically, there is no place within the amendment process for action by the President.

Assuming we had a court composed of such judges; what would it mean? Does strict construction or originalism eradicate the first ten amendments, The Bill of Rights? Of course not. They are stare decisis, the obligation of the U.S. Supreme Court to honor past precedents. But it would bring into question the position of other amendments should similar questions to them arise today. Simple question: term limits for the President was never a question for the Founders yet we have the 22nd Amendment that limits the executive to two terms. Should we revert to the former as it was the choice of those who penned the original document?

And then there are others: giving electoral power to the residents of the District of Columbia; the elimination of the poll tax; changing the voting age to 18; women’s suffrage.

Are we to believe that all these were with the thought process of our Founding Fathers? Doubtful. Consider that these remarkable men fought a war about taxes; how do you think they would feel about the 16th amendment that allowed for taxation on their incomes?

Want to see a clear example: we began our First Congress with the legislatures of the various states choosing the US Senators. Think about that: the body of people with the most legislative clout being picked largely by cronyism and not all by the people. That practice, a part of the Constitution, lasted till amended in 1912, a hundred and twenty years later. My guess is that “originalists” of today would have left it as it was.

Even better was the 11th Amendment that limited the power of the Supreme Court. Was it important: yes it was and as such passed in 340 days start to finish. Contrast that with the 27th that took 74,003 days to be ratified – do the math: 203 years. That one dealt with congressional pay. There is a message there.

I think it is good to have public debates that include outermost views if for no other reason than they enable us to set the borders of common sense. Whether it is Ron Paul and Michelle Bachman today or Norman Thomas and Henry Wallace in former times, the views they proffer motivate discussion and encourage debate and that is good for the process and for the nation. However, ultimately, as we have seen with Barry Goldwater and George McGovern, the voting public rejects presidential aspirants who were clearly outside of the left-right centrist mode.

In a recent blog I offered my views that the American people were largely critical of extremist views when it came to electing senior public officials. I stand by that opinion as have others who have shared their thoughts after reading the piece. Let’s hope that this applies to all the branches of government, notably the appointed one.

And let’s be thankful that the judicial appointment process in our beloved constitution allows for differing views. Our political changes are not brought about by revolution but by evolution and thus the instruments of government must have the flexibility to evolve, to evolve as they have since the founding of our Republic.

So Where Are We Now?

Huge financial institutions seemingly control a corresponding amount of our very being; a rating agency who thought credit default swaps were four star investments declares now that investing in the United States is not and the market (whatever that means today) reacts and behaves like a sine curve.

The same people who passed budgets that failed to include two wars now call for balanced budgets and somehow that makes sense and in the midst of all this a handful of people at a picnic in Iowa decide the final three candidates for our most important office after paying thirty dollars for the privilege to vote. Poll taxes apparently still have a place in the American process. Common sense: not so much.

With record unemployment across the land, no action of any kind is taken on job creation whereas critical legislative time over several months is dedicated to something that in reality is meaningless to those desperate to find work, the debt ceiling.

Our government has clearly lost the confidence of the American people and it is not at all surprising. Patient we may be; stupid we are not.

It so brings back memories of 1964 and the actual physical walk-out from the Republican Convention by the “not-so-wildly-conservative wing”, i.e. Nelson Rockefeller, Jack Javits, George Romney, William Scranton, Henry Cabot Lodge etc., immediately after Goldwater accepted the nomination and on national TV. The so-called Rockefeller Republicans included John Lindsay of New York and Lowell Weicker of Connecticut.

Thankfully the bulk of the electorate that November felt as I did that the Senator from Arizona’s claim that “Extremism in the defense of liberty is not a vice” was morally wrong. Extremism is morally wrong by the very definition of the word. History tells us what happened in that election. Goldwater won but 58 electoral votes, his own state as well as Louisiana, Alabama, Mississippi, Georgia and South Carolina – these because of the soon to be passed civil rights legislation, once again an extremist view.

Similarly when George McGovern ran against Nixon eight years later, the same was true but 180 degrees apart. Extreme liberals also “fall from grace with the sea”. This time the erstwhile democrat standard bearer carried one state (Massachusetts) (plus DC) for a total of 17 votes only eclipsed by Alf Landon in ‘36 who won two states but small ones (Vermont and Maine) and only eight votes.

Somewhere we have to remind ourselves that we are, for the most part, a centrist Republic and we can leave broad swings right and left to France and Italy and maybe sometimes to local elections but not in one that counts towards public policy and protection of the Constitution in the spirit that was intended by the founders.

Speaking of those folks, you know, the ones who actually worked together to forge a document, let’s forget this “strict constructionist” craziness that we hear all the time today. The founders never intended that or they would not have gone to the lengths they did to include mechanisms for amending this document.

They knew that matters change with time and that some important points today may well mean nothing two hundred years later. Want an example: how often do we hear today of Granting Letters of Marque and Reprisal, or of Bills of Attainder, yet they are mentioned more than once in our Constitution.

Just an aside: I looked through the Constitution targeting the rights and duties of the Senate and nowhere did I see that the minority leader has, as one of his responsibilities, to guarantee how many terms the President may serve. Maybe someone can point this out to the senior Senator from Kentucky: Sir, it is we the people who will elect or not elect our President and in that process, Sir, you have the same right as I do, i.e. to vote, once, and nothing more.

We hear about States’ Rights as if John C Calhoun had arisen from his South Carolina grave. Once again the cry is “Leave it to the States to decide these issues”. Just a reminder: Article 4; Section 4 states: “ Republican government: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them….against domestic Violence.” That is actually in the legal framework of our very fabric. Simply put: our Federal government guarantees the states their rights not the other way around.

As to the right of Texas to secede or form several states, I doubt that is so enshrined and even if it was in the annexation agreement, surely it was obviated by the agreement that Texas and “all states formerly under rebellion” had to pledge to re-enter the Union.

Those gentlemen who wrote our founding documents were as diverse a group as we have today. The difference between then and now is the “spirit of compromise”, that term we learned in sixth grade civics class and that is sadly seen by the extreme right and sometimes the equally extreme left as capitulation. Tell that to Madison or Jefferson or Hamilton or Adams. Better still, read the Federalist Papers.

While we are at it, can someone remind those who claim to be running to “get Washington out of our lives as far as we can”, that calling for constitutional amendments that stipulate what marriage is, or the prohibition of abortion, or the right to pray in our schools seems to my eyes to be increased control of our basic rights to make decisions based on our intellect and free-will.

Does strict construction demand we reverse woman’s suffrage or reinstate poll taxes or do we take away the right to levy income taxes? Now there’s an idea that might appeal to the Tea Party. Think of it: no income tax effectively means no Federal spending and therefore we can all repair to our individual enclaves and build walls and prance right back into the dark ages.

So much for the shining city on the hill.

Listen to Yourselves America!

Listen to the hatred you are preaching.

Listen to your refusal to acknowledge any views but your own even if what you champion just might be based on false premises. Or don’t you think that even possible?

And far from just not accepting any other view, no, you ridicule and demonize both the opinions and those that hold them.

And while you do so, you and all like you who call yourselves patriots: maybe you should read what the real patriots thought and wrote or shall we ignore them too?

Listen to you threatening Orrin Hatch of Utah. Orrin Hatch, who is conservative to his very bone marrow. Yet you threaten him publicly with a primary challenge because, listen to yourselves, because he was friendly with Ted Kennedy. Friendship in your eyes has become a character fault. Shame on you.

Listen to more than half of those at a political forum in Iowa agreeing, that your, yes, your President is a Muslim. Half of the people at a meeting in Iowa. You don’t want to hear that the fact that he is not a Muslim is irrelevant, do you? Colin Powell told us that even if he was; so what? In case you have forgotten it’s called Freedom of Religion and it is in the First Amendment which ranks it even ahead of your likely right to bear arms.

That annoying First Amendment is also what allowed Hatch and Kennedy to be friends and to speak civilly. It’s called Free Speech and if you disdain that you fall into the realm of the black shirts in the 30’s or the not so fictional Orwellian world of 1984.

Those amendments; the Constitution; the Federalist Papers: that is what the patriots gave us. The also gave us the concept of tolerance.

You see, the thing you cannot stomach is tolerance. I challenge you to look up the word. Never mind, I will do it for you: tolerance is being fair, objective and understanding of those whose views differ from yours.

How hard is that? So hard that your children will grow up as bigoted and closed minded as you are? So hard that you would rather destroy the very fabric of this nation than to allow a single voice of dissent? Is that what you want?

Don’t like what someone is saying? Simple, shout them down; don’t like a political point? Simple, call them un-American; don’t like immigrants? Simple, build walls and shut the borders and while you are at it arm yourselves just in case.

Have friends with other views? You can’t even consider that can you? They could not by your definition be friends.

Think about that. Do you really want everyone to think the way you do? Is that what our God-given ability to reason and debate, to use our intellect and will has come to?

Ever even consider in the quiet of your own mind that even just one of your opinions might be in error? Be honest, at least honest to yourself.

Because if you say no to that question, then you consider yourself omniscient, and as best as I know, that term only applies to a single entity: the Deity.

But you probably don’t believe that definition either, do you?

Thomas Ignatius Hayes, Jr.
St Petersburg FL
10 February 2011

Words Have Meanings And Consequences

I am remembering Nixon's aide, Gordon Liddy telling Chuck Colson, White House Counsel that he was off to kill columnist Jack Anderson. Why? Because HR Halderman, POTUS’ Chief of Staff had in frustration said, referring to the columnist, "we have to get rid of this guy". No saint himself, Colson at least had the common sense to stop Liddy.

That was then; this is now. So, when do we begin realizing that words have consequences; that what some might see as over-reaching campaign rhetoric is seen by others as a "call to exercise second amendment rights". In a Florida congressional race this fall, we heard: "If ballots don't work we will use bullets!" In New York, a candidate for governor threatened a reporter that he would "take him out". These utterances are from candidates for high public office not some backyard argument and in the age of replicating news cycles, they are seen and re-seen on the cable outlets.

Even Pat Buchanan’s eloquent call to “Mount up and ride to the sound of the guns” is only meaningful when taken with the historic understanding that it is a historical reference to the Battle of Waterloo and not, as some might think, a call to arms. Thinking about that, maybe Buchanan was with Wellington and Blucher that day.

Thankfully, the vast majority of us ignore histrionic declarations like that and maybe even laugh them off but it only takes one who does not, one who takes the utterance seriously, or is deranged, or maybe, like my fellow Fordham alumnus, Liddy, is a true Machiavellian.

Our parents taught us: "Sticks and stones etc" but that lovely allegory is no longer applicable in this age of instant action and equally instant reaction. YouTube and FaceBook et al have changed the scene forever and words do cause harm as seen by recent cyber-bullying cases.

Putting the picture of a congresswoman’s district on a leaflet with gun sights around it is without a doubt First Amendment protected speech. But just because we have a constitutional right to do something does not mean we must or sometimes even should.

Civility must not be seen as archaic. The vitriol that we heard at Tea Party meetings this year was scary but the reality that very few of our political leaders spoke out against it was equally disheartening.Recent events in Arizona should press everyone: politicians and supporters, pundits and handlers, TV commentators and talk-radio personalities, even blog writers, all of us to tone back the rhetoric but I sadly doubt it will.

For that, shame on all of us.