Constitutional Interpretation

Some find a . . . candidate for constraint in the needs and perspective of the current generation of interpreters. They argue that because a constitution “is bound to be read in changing ways as time passes and circumstances change,” the text should be regarded “not as containing a declaration of the will and intentions of men long since dead . . . but as declaring the will and intentions of the present inheritors and possessors of sovereign power.” But if this is your “method” why bother with the text of the Constitution (or any text) at all? Why not take the shorter route and just enact statutes that reflect your will and be done with it? The proponents of the “living Constitution” or the “dynamic Constitution” or the “best that can be Constitution” are not urging another form of interpretation; they are urging its abandonment by removing from it any constraint whatsoever. . . . Saying that you don't want to be bound by the dead hand of the past is saying that you don't want a constitution, or at least not one taken seriously.

-- Stanley Fish, "Intention Is All There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation of the Law," 29 Cardozo L. Rev. 1109 (2008).

The Importance of Religion in America

The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation's Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer's conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Court's position that freedom of speech-a right enumerated only a few words after the right to free exercise-has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.

City of Boerne v. Flores 521 U.S. 507, 564-565 (U.S.Tex.,1997) (O'Connor, J., dissenting).

Verbal Gymnastics

So, check this out.

The Supreme Court has decided that the "due process" language of the Fourteenth Amendment comprehends almost all of the individual liberties included in the first nine amendments to the Constitution. The justices in their infinite wisdom and understanding have concluded this despite the fact that the term "due process" itself shows up in the Fifth Amendment and therefore by incontrovertible logic stands as a distinct right from all the others just referred to.

Make sense? Well, it gets even better. The Supreme Court has also decided that rather than wait around for Congress and the States to pass another amendment to apply the Fourteenth Amendment to the federal government, they were going to interpret the "due process" language of the Fifth Amendment to include all the substantive equal protection rights of the Fourteenth. This is true despite the fact that NO WHERE in the Fourteenth Amendment does it ever refer to the federal government, and not once before the passage of the Fourteenth Amendment was the Fifth Amendment ever interpreted as guaranteeing equal protection.

But, wait there's more. In addition to jumping through all these hoops to rein in that leviathan of evil that is our government, those rascally but lovable misfits up in the Pantheon have decided that hidden amongst the clear and plain words of the amendments, there are "other" rights lurking amongst the "penumbras." These "fundamental" right so apparently there (but which the founders and subsequent amenders just kinda forgot to explicitly delineate) fall under "substantive" due process or the "right to privacy" and include the right to marry, have children, raise children, abort your children before they are born, buy contraceptives, and (if you read the essential meaning behind Lawrence v. Texas) engage in homosexual acts.

Meanwhile, it is a matter of historical fact that "due process" when included in both of these amendments (the Fifth Amendment in the 18th Century and the Fourteenth in the 19th Century) did not HAVE a substantive side and simply referred to maintaining procedural safeguards so that when the government DID decide to take away your life, liberty or property, you got a fair hearing before a neutral decisionmaker. Moreover, the word "privacy" simply does not exist in the constitution, nor is there any language referring to those rights hiding in its "penumbras."

Now, I am a personal fan of most individual liberties, and all the examples I cite here at least appear to be good faith efforts to protect against big government and retain rights for individuals (that is all debatable but I will concede it for this particular argument). But as a general adherent to reality, I tend to give words the meaning they are originally and normally ascribed. I can understand reasonable interpretations and an occasional extrapolation, but what we have here is pure fantasy.

When we can no longer agree on a common meaning for words and simply ascribe to them what we want, we cease to communicate and simply bark at each other from behind our barriers. What's worse, we can no longer trust to cede power to the hands of our leaders since we can no longer be assured we can know what they will do with it. Language is the guidepost and assurance of protection to ourselves and the government we have created. It is the vehicle by which we manifest our consent to be governed. We must move forward in a common understanding or we will lose ourselves as a nation.

Stay the Hell Out of My Business

To assume that I have something to hide simply from the fact that I'm refusing to show you something is an invalid logical inference. Such an assumption represents the most pernicious form of abuse that a position of authority can take. It renders hollow and indeed farcical any supposed limitations or safeguards on the state's ability to invade an individual's legitimate expectations of privacy and destroys the last vestiges of autonomy in our society.

You get to CHOOSE

Whoever managed to recast the abortion argument in terms of choice was absolutely brilliant. No longer are we talking directly about whether or not someone has the right to destroy an unborn child. Suddenly we are talking about “choice,” and not just any choice, but the choice “to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life,” as a late Supreme Court Justice has so eloquently and misleadingly put it.

Never mind that ALL debates on what rights that we have in free society are about choice. Never mind that there are millions of laws on the books – laws that are necessary for our society to function and operate – that directly impact our ability to regulate our personal body functions (drug and pharmaceutical laws, sporting licenses and anti-euthanasia laws being among the more benign). Never mind that the very debate begins (except in the cases of rape – for which pro-abortion arguments are overwhelmingly agreed to be in a completely different category) with a choice to become pregnant in the first place. Suddenly we have one debate that is no longer about the underlying substantive behavior, it’s now about the right to choose that underlying substantive behavior. Somehow this one debate gets the special distinction to be not about what its about, but about whether we can even talk about it.

And that changes everything. It allows the pro-abortionists to intellectually remove themselves from the bloody, gruesome and horrifying reality that is abortion. It permits those supporting the industry to tell people that it’s not about one’s responsibility to humanity and society, it’s not about human life or its potential, but rather about one’s personally liberty and autonomy. And, perhaps most importantly, it allows pro-abortionists to enlist among their ranks those who have uttered what are for me the most pathetic and tragic words of any conscripts to a cause: “Well, I would never dream of doing it myself. But I can’t take away from someone else the right to choose.”

Why We Let a Guilty Man Go Free

It' s interesting to read all these cases in Criminal Procedure where the Court ultimately suppresses evidence that, while seized in an unConstitutional fashion, nonetheless inculpates the defendant. I turn to "A Man for All Seasons" as the proper justification:

Setting - Sir Thomas More has declined to employ Richard Rich, who has just left the room.

Speaker	Dialog
Wife	Arrest him!
More	For what?
Wife	He's dangerous!
Roper	For all we know he's a spy!
Daughter	Father, that man's bad!
More	There's no law against that!
Roper	There is, God's law!
More	Then let God arrest him!
Wife	While you talk he's gone!
More	And go he should, if he were the Devil himself, until he broke the law!
Roper	So, now you give the Devil the benefit of law!
More	Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper	Yes, I'd cut down every law in England to do that!
More	Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Available at http://www.radix.net/~bbrown/amfas.html. See also Chimel v. California, 395 U.S. 752, n. 12 (1969) ("The [Fourth] Amendment is designed to prevent, not simply redress unlawful police action.")

Don't Short Circuit the Process

A friend of mine posted this the other day on a web site:

What hurts the most is when your brother tells you the day after elections that he wished the Republicans remained in power because the Democrats are trying to give gay people the right to marry.

What hurts the most is to sit there and try to explain the concept of equal protection to a child that doesn't understand such things with the ardent hope that his eyes will show a glimer of recognition that the active denial of the right to marry to all individuals, regardless of who they choose to marry, is discrimiation.

What hurts the most is to live in a Roman Catholic household, denying who you are as an individual, solely for the purpose to help in raising a younger brother to have an open mind and open heart to all.

What hurts the most is having your younger brother unknowingly throw a dagger in your heart right after Virginia passes Proposed Marriage Amendment 1.

My response:

I'm sorry this is such a hard thing for you Joe (named changed), and that such issues give you such pain. I understand you and I have our differences of opinion on this and usually I leave them to our friendly banter back and forth. But you brought this to my attention, and as such, you invite me to comment.

Giving homosexuals the "right" to marry is not a question of Equal Protection. Homosexuals have all the same rights under law as other Americans. It is a question of whether we are going to embrace a lifestyle and a family structure that is foreign to the current foundation of our civilization: the two-parent family.

I disagree with Bob (with all due respect). Those who argue against miscegenation were against a skin color, an irrational fear that somehow the melanin content of one's body (among other biological irrelevances) automatically shaped how they thought and acted. They were wrong. Refusal to accept homosexual unions, meanwhile, is a rational rejection of a lifestyle and behavior, completely divorced from appearances. This is true regardless of whether that rejection is ultimately morally right or wrong. It is rational opposition to behavior, not skin color. To conflate the two arguments is to buy into every racist argument our society has debunked over the past 50 years (e.g. that somehow physical characteristics determines behavior).

Homosexuals are not a protected class, they are a private interest group, and if they want their unions given favored tax/contract status by society and the government (like marriage), they need to convince their fellow Americans that it has value and to pass laws accordingly. Apparently, the majority of voting Virginians feel otherwise, and have passed laws accordingly. This is the same process we all have to follow in furthering our private interests. Framing it as an Equal Protection argument and going through the courts is an end run around the political process and undermines our system of government.

Joe, you know I love you. I respect your opinion, though I fundamentally disagree with it. I hope you and your brother will come to love and understand each other like you and I have.