Tuesday, February 3, 2009

The Constitution of the United States, a Living Document?

The United States has historically served as a shining example of Rule by Law in the world.

America is the first nation state openly to be predicated on the concept that a nation should be established under the proposition that all men are created equal, all should enjoy equal opportunities and equal protection under the Law, and that it is the primary duty of the State to protect these God-given rights to its Citizens.

In the Declaration of Independence, that basic premise looks like this:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

In all other nation states existant at that time, rights were defined and controlled by a certain class of peoples. The presumption was that this class alone was competent to determine whether certain actions were acceptable by all people, and to decide what rights (pick and choose according to the prejudices of the ruling class) should be 'granted' to the people who were not members of the ruling class.

The United States of America has prospered during the last part of the 18th Century ... since the Constitution of the United States was proposed and accepted as Law.
The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America; the Federal Government of the United States; and all the State & local governments and Territorial Administrative bodies contained therein. It provides the framework for the organization of the United States Government. The document defines the three main branches of the government: The legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the Supreme Court. Besides providing for the organization of these branches, the Constitution carefully outlines which powers each branch may exercise. It also reserves numerous rights for the individual states, thereby establishing the United States' federal system of government. It is the shortest and oldest written constitution of any major sovereign state.

A Lesson in Civics:
Part of our prosperity was because the principle of Capitalism was protected: it encouraged economic growth, and it also encouraged abuse of the freedoms which were central to the basic philosophy of a Free People in a Free Nation. At the same time, as the Citizens of the country learned that some controls were necessary to prevent these abuses, the laws were changed (by an established Legislature) to protect the Rights of its Citizens while continuing to encourage economic growth, and prosperity not only for capitalistic entrepreneurs but for the common working man.

Much of this growth was painful: national expansion resulted in abuse of Native Americans; the desire for 'cheap labor' encouraged the Slave Trade; as more immigrants reached our shores we discovered that Big Business was abusing the Rights of new Citizens to earn a wage commensurate with their labors.

Protection for Native Americans arrived late in America, as did the rights of those who were brought to these shores as indentured servants, and as outright slaves. We fought a Civil War (in part) to free our country of outright and economic slavery; the rights of Native Americans was never adequately addressed, to our everlasting shame and sorrow. Today, Native Americans are not specifically provided with federal protection despite a plethora of Treaties which vowed concessions to this class of citizens "as long as grass grows or water runs".

But most of the wrongs we did were addressed by changing the Laws of the Nation, which continued even to the Constitutional Level until, in 1863 (during the Civil War) President Lincoln signed the Emancipation Proclamation. (It was flawed, but it was significant as a step to repealing the right of one man to legally possess another.)

In the nineteenth and twentieth Centuries, we addressed the rights of Labor. Congress ("the Legislature") was slow to recognize the societal wrongs implied and explicit in Capitalism vs Labor, and Labor Unions were formed ... not usually in a peaceful manner. Eventually, the Nation recognized that Capitalism was fraught with peril in an unregulated society, and federal laws were proposed and enacted to protect laborers in America.

The recent outcomes:
Today we are on the threshold of revaluing another Constitutional Right: The Second Amendment.

In DC v Heller, the Supreme Court of the United States is tasked with interpreting the United States Constitution to determine whether the Second Amendment is an Individual Right or a States Right.


The Second Amendment is one of the original Ten Amendments which constitute the Bill of Rights.

Let's talk about the Amendments to the Constitution.

During the Constitutional Process, Congress addressed societal issues which, in the opinion of the original Framers of the Constitution, had not been made clear. The goal was to enumerate specific Rights which were "Granted by God", not 'granted by the state'. (This was an expansion on the original acknowledgments in the Declaration of Independence: " ... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... ".)

The Bill of Rights refers to those rights of "... all men..." not as new 'rights', but as an enumeration of rights already in place; granted by God, not by The State. Specifically, The State (The Nation, not individual states) did not grant these rights, but the Federal Government only acknowledged them on behalf of 'All States'.

The United States Constitution, according to some scholars, is not subject to interpretation other than in the context which existed at the time it was originally enacted.

Witness the Eighteenth Amendment (establishing Prohibition of the 'manufacture, sale or importation of spirituous liquors') and the subsequent Twenty-First Amendment (repealing Prohibition), both of which addressed the issue of Liquor Control. These two amendments addressed a 'societal problem' in which the cure was empirically found to be worse than the problem.

How different is 'Liquor Control' from 'Gun control'?

Well, that is a subjective definition, but it does serve to demonstrate a few facts of the American Constitutional Process.

First, the Constitution is not a 'Living Document', and if you don't like the way the Constitution does NOT restrict Civil Rights, the historically acceptable solution is not by Judicial Fiat; the 'right' way to change it is by legislation.

Second, if 'Judicial Fiat' is accepted as a legitimate manner to change the meaning of the Constitution, there exist no legitimate for the 'Will of the People' to change this interpretation. The Judiciary has already been given unconstitutional powers due to the opinion of a few judges, and the Will of the People is undermined ... as is the power of the Legislature to enact a change in Federal Law (the Constitution) by non-Judicial means.

Third, (and as a sub-set of the 2nd point) by defining the Constitution as a "Living Document", the Balance of Power (specifically and by implication) in the Federal Government loses its ability to 'Check and Balance' one branch of Government against another. This is explicitly and obviously contrary to the intention of the Founding Fathers.

Other Constitutional Amendments provided a further expansion to include "all women" (by enacting the XIX amendment in 1920). This served as an excellent illustration of the way that constitutional amendments ... not judicial activism ... has always before been understood to be the acceptable means to 'modernize' the Constitution to include a more liberal interpretation of rights, not to restrict rights.

Finally, a comparison of the progress of the XIX amendment with the proposed "Equal Rights Amendment" (ERA) is an example of a constitutional amendment which was widely lobbied for, but failed to gather sufficient votes from the states to be ratified. The ERA sounded reasonable on its face, and Congress was ready to ratify it. However, a grass-roots campaign forced state legislators (and the general public) to look beyond the emotional furor and understand the likely consequences of its ratification. Today we see some of the same issues which we dodged back in 1977 are again being proposed at the state level (most tellingly in California) -- to the general public distaste across the country.

The attempt to use the Supreme Court to change the Constitution by 'interpretation' is intrinsically flawed.

If the Constitution is perceived to no longer meet the needs of Modern Society, an attempt to change the "Interpretation" of the Constitution is in and of itself unconstitutional.

The only legitimate and legal way to change the 'interpretation' of the Constitution at this point is Legislative, not Judicial.

That is, the Supreme Court of the United States does not have the Constitutional Power to legislate on this question; the Supreme Court should decline to rule in opposition to the Second Amendment, or at a minimum should find that this is an Individual Right as opposed to being a "Collective Right".

If the Legislature opposes this definition, it is empowered to propose, lobby for, and legislate an Amendment to the Constitution ... which must be ratified by the states.

The United States' Government has no powers which are not granted by the Constitution. Any attempt to end-run these powers should be viewed as an attempt to usurp the rights of the Citizen, and treated accordingly.

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