Now that we had about three weeks of history and philosophy lessons interspersed with personal rancor and frustration, where are we?
I guess that about the only thing that we have accomplished is to prove that people with a common view can disagree on the path to the same endpoint. It is a little like when you type a destination into your GPS/Nav system and get to choose the fastest route, the shortest route or the route that avoids toll roads. Three different routes all ending at the same destination, the best route is one that must be decided on – based on the needs and desires of the driver and their passengers…and even then, most of these systems will update you on traffic issues (accidents, construction, etc) and ask you if you want to vary your route to avoid these issues, changing the route again without changing the ultimate destination.
I have tried to convey my position that the best way to change the direction is through the system we have only to be met with assertions that every institution of government is corrupt, up to and including the Supreme Court (who apparently make “wrong” decisions on a frequent basis). I am told on the one hand that we must interpret the words of the Constitution as plain language and at the same time told that we have to study the Framer’s writings and their history to divine original intent – which is just another way of saying that people have to interpret and agree on an interpretation – I’m not sure who is exactly supposed to do this as it has been previously proposed that the Executive, the Legislative and the Judicial branches of the federal government are all corrupt. It seems that there is an expectation that there is a common understanding that is supposed to miraculously form in the American public among the 312 million or so sentient beings who are legal citizens. I’m probably not supposed to say “legal” – that has become a dirty word because we are now supposed to individually decide what is constitutional and what is not and disobey any law we individually determine to be unconstitutional…if we don’t, we all know what that means, don’t we?
The Rule of Law is now the Rule of Interpretive Suggestion That Agrees with a Specific Viewpoint.
I have been told that the Constitutional requirement for the federal government to “…provide for the common defense” cannot, in any way, shape or form be construed to include the government accumulating phone numbers via a third party to sort through to attempt to discover terrorist plots while other government agencies like the IRS and private companies like Google and FaceBook have ten times the personal and behavioral data that the NSA does.
I wouldn’t support the NSA program even if it is determined to be within the law – but could a reasonable person determine this “common defense” activity? Apparently someone did because this program has spanned two presidential administrations.
Providing for the common defense has evolved from meaning providing and stocking a town powder magazine with musket and ball, powder and flint to banks of computers in Utah and cyber terrorism.
And yet we are all supposed to “know” what is meant by “common defense” and what its limits are based on “clear language”.
Somehow I keep thinking of Justice Potter Stewart’s utterance in the Supreme Court’s ruling on obscenity in 1964:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
We are also admonished by our resident Constitutional scholars that we must “go back” to the clear language of the Constitution.
You can’t “go back” to something that never existed. The fact that we have 223 years of laws and juris prudence (starting when SCOTUS convened for the first time on February 2, 1790) indicates that there has never been “one” interpretation of the document and that each side of an argument sought to define “clear language” as “my position”.
Every political motive has been addressed through the courts – starting with the decision of the Jay Court in 1793 in Chislom v. Georgia (ruling that the federal government could sue the individual states for certain actions) that led to the first amendment outside the Bill of Rights, the Eleventh in 1795. The Federalist John Marshall got the ball rolling in 1801 and sided with central government power and authority for majority of his tenure as Chief Justice – 34 years. Perhaps the most significant decision was in the landmark case of Marbury v. Madison (1803), where Marshall held that the Supreme Court could overturn a law passed by Congress if it violated the Constitution, legally cementing the power of judicial review and the legal precedent that the SCOTUS is the ultimate arbiter of constitutionality in the American republican system.
In 1815, Thomas Jefferson wrote:
The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.
Since there was very little case law due to the American court system being in its infancy, one could argue that this was a pure political power grab by the Marshall court – but it was never overturned and as such, remains the standard to this day. This should indicate that 12 years after the Marshall Court assumed that responsibility for themselves, there still was disagreement – because Jefferson thought that Marbury v. Madison violated the separation of powers and it gave the Supreme Court power over the other two branches.
I happen to agree with Jefferson but my points have been not about what should be but what is. What is cannot be wished away or cast aside as casually as yesterday’s rubbish. We have a system of law built upon these precedents and I simply cannot see a way to change it without operating within the parameters of the Constitution to alter it – the only other alternative is to violate the Constitution altogether.
Jefferson provides the answer:
…But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
The people, by means of elected representatives through Congress or a constitutional convention called by the states, can amend the Constitution to correct the course and reign in the powers that are being assumed without basis.
Article V of the Constitution provides the method by which states can call for a Constitutional Convention:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…
I would like to see an amendment like this Jefferson wrote of in 1809:
“The… proposed [Constitution of Spain]… has one feature which I like much: that which provides that when the three coordinate branches differ in their construction of the Constitution, the opinion of two branches shall overrule the third. Our Constitution has not sufficiently solved this difficulty.
Jefferson saw the need for a Constitution that could be changed by approval of the people, not the “interpretation” of the judiciary. Writing in 1823:
Whatever be the Constitution, great care must be taken to provide a mode of amendment when experience or change of circumstances shall have manifested that any part of it is unadapted to the good of the nation. In some of our States it requires a new authority from the whole people, acting by their representatives, chosen for this express purpose, and assembled in convention. This is found too difficult for remedying the imperfections which experience develops from time to time in an organization of the first impression. A greater facility of ammendment is certainly requisite to maintain it in a course of action accommodated to the times and changes through which we are ever passing.
But he clearly saw the need for change…
“Time and changes in the condition and constitution of society may require occasional and corresponding modifications.” –Thomas Jefferson to Edward Livingston, 1825. ME 16:113
“Nothing is more likely than that [the] enumeration of powers is defective. This is the ordinary case of all human works. Let us then go on perfecting it by adding by way of amendment to the Constitution those powers which time and trial show are still wanting.” –Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419
I see calls from the right for “interpreting” original intent to be as dangerous as the “living constitution” concept of the left because it leads to one common activity, judicial activism. Better to amend the document by popular acclaim than to continue for another 223 years “interpreting” it based on the political affectations (right or left) of the age but even then, we must understand that “the people” may well decide on a course that some will find disagreeable and they will have to decide if they will be subject to this rule of law or not.
I actually agree with Joe and Texas95 in principle. Nothing would suit me better than to believe that such a world as they describe exists – but I cannot ignore history. Over the three year life of this blog, I have been challenged to learn more and more about our history and the more I learn, the more I see that we are still fighting the same fights, the only difference is that we don’t wear powdered wigs and silk pantaloons anymore (well, maybe some of you don’t – some of us like to feel pretty now and again)…it is that many of us are inputting the same destinations in our Garmin’s and Tom-Tom’s but selecting different routes that seems the rub.
Many want a third party to accomplish this renaissance, I say let’s just resurrect an old one.
Wikipedia describes the American Whig Party as:
The American Whigs were modernizers who saw President Andrew Jackson as “a dangerous man on horseback” with a “reactionary opposition” to the forces of social, economic and moral modernization. Most of the founders of the Whig party had supported Jeffersonian democracy and the Democratic-Republican Party. The Democratic-Republicans who formed the Whig party, led by Henry Clay and John Quincy Adams, drew on a Jeffersonian tradition of compromise and balance in government, national unity, territorial expansion, and support for a national transportation network and domestic manufacturing. Casting their enemy as “King Andrew”, they sought to identify themselves as modern-day opponents of governmental overreaching.
Bring ’em back.
Utah2016: He’s A Whig.