Archive for the ‘The US Constitution’ category

« Short and Sweet Blog home page

An Angry Mike Bloomberg Calls For An Illegal Police Strike

July 31, 2012

The Mayor of New York City is so frustrated with the lack of gun laws that he calls for an illegal police strike to blackmail people into supporting them.

I, for one, have no personal agenda against cities like LA, Chicago and New York experimenting with gun laws. Why doesn’t the mayor just pass a total assault weapon ban in New York City (isn’t that already the law there) and let’s see what happens. That is, after all, the essence of federalism. The problem in Bloomberg’s world may be what the Supreme Court did in 2010 when it decided that the Second Amendment provides an individual right of gun ownership trumping the authority of State and local governments to prohibit same. It did this through interpreting the 14th Amendment’s “due process” guarantee as incorporating the Second Amendment into the law of the States as as I have previously explained.

So, it appears to me that the Mayor is upset by the very same thing which has gotten much of the rest of the country boiling mad with a federal court system seemingly obsessed with micromanaging purely local issues. In addition to providing gun rights to individuals in those States and municipalities which are interested in curtailing them, they likewise intervene in cases involving school prayer, abortion rights, land use, public employee rights and even as lowly an issue as the terms of school dress codes. Many people can sympathize with Mayor Bloomberg’s anger. It has seemed to many of us for a long time that it is not good that the public will of individual States and their subdivisions should be judicially preempted in so many ways. An overly broad definition of the term “due process” together with courts filled with hubris has inserted the federal courts into every nook and cranny of America’s public and private life. Is the breadth of the 14th Amendment which has been “recognized” in the last 60 years really the intention of the people who adopted the 14th Amendment in 1868 to protect the rights of former slaves? Doubtful.

And, it should be remembered that Mayor Bloomberg, in his anger, is not just anybody calling for illegal strikes by police. As mayor of New York City, a city driven to near breakdown in 1966-68 with illegal job actions by public employees including transit workers, sanitation workers, fire fighters and police, he is certainly aware of the history of such strikes. They nearly resulted in municipal bankruptcy for NYC in 1975. Can he really be suggesting the sort of disregard for law which almost broke his city? Would he authorize a strike by servicemen who feel that the army is shortchanging them on bombproof vehicles? I doubt it. That would be anarchy and Mayor Bloomberg certainly wouldn’t be calling for that, would he? Be careful what you wish for Mr. Mayor!!!!!

Categories: Law, The US Constitution
Tags: , , , , , , ,

Comments: Comments Off on An Angry Mike Bloomberg Calls For An Illegal Police Strike

CHIEF JUSTICE JOHN ROBERTS – A MAN ASTRIDE HISTORY?

July 15, 2012

After allowing my shock and anger to subside, I believe that it is now safe for me to share some calm reflections on Chief Justice and his decision. First of all, it should be clearly understood that the Affordable Care Act (ACA) decision was the Chief Justice’s decision and his alone. Everything about the ACA hung on his vote in a Court in which cases involving questions about the original intent of the framers (or amenders) of the constitution are balanced on a knife-edge.

The issue I see presented in this case is one of justice. Is our country and its judiciary fundamentally committed to the rule of law and the idea of justice? In that regard the first question is whether the Chief Justice truly believes that the constitutional power to tax covers the ACA “tax penalty” or did he base his vote upon other considerations? The second is, what is the likely effect of this decision on our form of government and the future of our politics?

Of course no other person actually gets into the mind of any judge to determine the basis upon which he or she makes decisions. Appellate court judges, like Supreme Court Justices, do have to write opinions which legally support the rulings they make but they don’t have to tell the truth or the whole truth about the basis of the decision.* The Chief Justice’s opinion contains the following quotations, to wit:

“We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions,”

and,

Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

The language of these quotes signifies the Chief’s awareness of the politics of the situation. Does he really believe deeply in the idea that the ACA is constitutionally permissible? I doubt it. Why not? Most importantly, according to reports, he changed his vote to “constitutional” very late in the process. He first voted for unconstitutionality at the Justices’ conference immediately after oral argument. At that point he voted to overturn the ACA. He voted ‘unconstitutional’ right after having heard three days of oral arguments, read and digested the record and studied in-depth the legal briefing of the parties. Then, sometime later, he moved into the ‘constitutional’ camp. This alone creates a lot of suspicion as to his motivations. Did he really discover a new point of view after the conference which he had not considered and rejected before?

In order to see it as a tax, it seems to me, that one has to believe that everyone is actually being fictionally taxed and that those who purchase conforming insurance get a 100% exemption from paying that tax. If this is true, this should have been clear to the Chief early in the process. This can not be an unexpected twist in legal thinking which may not have occurred to him previously. Here’s a quote from the Chief’s opinion, the justification for his position that the “penalty tax” is in fact enough of a tax to qualify as constitutional:

Indeed, it is estimated that 4 million people each year will choose to pay the IRS rather than buy insurance … That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating 4 million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.

This statistically based analysis is very questionable. It is questionable enough to wonder how it even got into a Supreme Court opinion. The Chief is allowing his view of the intentions of Congress to overshadow the words of Congress and the Congressmen and Congresswomen who argued about it and voted on it. What is the relevance of a statistical analysis like this? Is it true that there could not possibly be that many scofflaws to whom Congress would have intended to assess a penalty? What? There are at least that many people who fail to file required income tax returns in the first place.** Are these non-filers penalized for their bad behavior or taxed an extra amount? Non-filers are definitely punished, not taxed, for their failure. The bad behavior is the failure to file and the penalty is both monetary and potentially physical incarceration. Can a less convincing argument actually be made about the tax versus penalty question? Isn’t this especially true when the administration officials and supportive Congresspersons continue to state, even after the opinion, that this is not a TAX but is a PENALTY. The Chief’s rationale just seems a little theoretical and not exactly legally overwhelming. When viewed as very a late change of position it seems likely to be a rationalization. Perhaps not, but it reasonably creates serious suspicions.

Then why the change you ask? Is it possible that the Chief wishes to retain for the Court its lofty position in the politics of this country as the final arbiter of all important decisions. Does the Chief believe that a 5-4 vote overturning of the ACA would seriously degrade the public’s opinion of the Court and the legitimacy of its role in declaring the terms of constitutional law as applicable to the State and Federal governments and the people themselves? Is Chief Justice Roberts worried about whether it may become politically palatable for Congress to insulate the laws it makes from review by the federal courts pursuant to the authority of Article III Sections 1 and 2 of the Constitution. That is possible and it is frightening when viewed from the perspective of those of us who have seen the Chief as a straight arrow from the first. We’ve seen him, perhaps now it seems naively, as a man who stands up for the constitutional oath which he took to:

. . . {S]upport and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose.”

How could a serious and honorable man having taken this oath give primacy to the political position of the Court over enforcing the terms of the Constitution itself? This is the question. Does the Chief see his role as a man sitting astride history who must act politically to protect the constitutional prerogatives which the Court has arrogated to itself (See Marbury v. Madison) or as an impartial arbiter of the law, including constitutional law? If the latter I am content to live with the results of this decision in every respect because this is how the system was designed. Let the chips fall where they may in the event of human error. Stuff happens. But if the former and it turns out to be just another cynical example of people making political calculations in the short run which often, if not always, turn out to be very destructive in the long one then I’m afraid that this time it will be taken as a blatant affront to justice and the rule of law itself. This may be the straw which breaks the backs and the hearts of those trying to protect and re-energize the constitutional idea of limited government. This is particularly true when the one perceived as practicing the cynicism was previously revered for his extensive and demonstrated knowledge of the law and his stated commitment to the rule of law.

The purpose of the Constitution was stated by the framers in the following terms,

. . . [T]o form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, . . . .

This Constitution was written for a nation of laws, a nation dedicated to justice. Not cynical case by case justice, but a nation in which the laws are sacred and are treated that way. I, one of the naive ones, believe that if the decisions of the Supreme Court are based upon the Constitution and its founding [and amending] principles we will remain a successful law-abiding republic even if we don’t like the laws. Our dedication to justice will save us. On the other hand, twisting and manipulating the constitution in order to fit the personal or institutional political agendas of the players of the day does damage to the idea of justice and the commitment of the people to that justice. If decisions about constitutionality, like this one, are done with an obvious judicial thumb on the scales of justice we have truly gone beyond the tipping point and may actually have irreparably eroded our nation’s ideal of justice and the rule of law. Once respect for law is gone, we’re done for as a nation of laws and we will almost inevitably become a free for all democracy, a nation of men. In such a democracy, a nation untethered to republican limitations on the power of government, the might will make the right. That implies that our future will be one of great and ongoing struggles for the raw political power to impose the will of the winners upon everyone else.

*”Limitations” is an interesting novel written by legal-thriller author Scott Turow which follows the events and ideas which understandably affect the decision-making process of an appellate court judge.

**In 2001 the IRS estimated it was losing $30 Billion due to non-filers, this would be an average of $10,000 in unpaid taxes from at least 3 Million non-filers. Most taxpayers don’t owe that much so the number of non-filers is likely to be much higher as of 2012.

Categories: Law, Politics, The US Constitution
Tags: , , , , , , , , , , , , ,

Comments: Comments Off on CHIEF JUSTICE JOHN ROBERTS – A MAN ASTRIDE HISTORY?

AMERICAN EXCEPTIONALISM

January 27, 2012

In the last few years the term “American Exceptionalism” has come to the political forefront. As with any other term which moves into the political arena, it takes on the character of a political football. Whoever can define it in the public mind has control of the football. In preparing to run for the presidency Newt Gingrich wrote an entire book about it. In his introduction Mr. Gingrich describes the idea like this:

Belief in American Exceptionalism leads inevitably to smaller, more effective, accountable and limited government. The American Revolutionaries did not shed their blood for the welfare state; nor did they aim to replace the arbitrary rule of King George . . . with their own oppressive bureaucracy. Instead they fought for individual liberty–that made America an exception among all other nations.

But this individual liberty which Next speaks of is not altogether clear since it is likewise a term carrying a lot of political weight. To some people, like the President of the United States, I believe that liberty is merely a synonym for fairness which is the least clear term I can imagine.
As to his own idea of the meaning of American Exceptionalism, the President has said that he, as an American, believes in American Exceptionalism,

. . . just as I suspect that the Brits believe in British exceptionalism, and the Greeks believe in Greek exceptionalism.

A less than clear exposition but clearly not in agreement with Mr. Gingrich’s view, I believe it is fair to say, since it seems to deprecate the very concept of exceptionalism itself.

First, Mr. Gingrich.

Then, President Obama.

I would like to tell you what I think about the source of the American Exceptionalism. I will start where our exceptionalism started, with the founding of the country. Our country was born in a war which was declared by a Continental Congress. A formal body of men elected by their peers from the 13 American colonies. In this elected Continental Congress effectively resided, in the minds of the people, the sovereignty of the American people. This elected congress appointed the officers to serve in its continental army, it declared the independence of itself and its constituent colonies and it appointed ambassadors and other officials to effect its will. It was not an army with a political arm but a civilian political entity with an army. The army, and its commander in chief reported to Congress and was expected to serve Congress. At the conclusion of the war the commander in chief resigned his commission to the Continental Congress and went home to Mount Vernon. This view of the role of civilian versus military power was thus established in the United States But why? Why was it that General Washington effectively bowed to the civilian government of the United States? The underlying thought process on the part of all concerned flowed naturally from the general view in the colonies as to the proper role of governmental power, including military power, in the country and an implicit agreement as to the ends it should serve. The result of these views was a Declaration of Independence which is one of the most elegant documents in all history especially when you understand that it was drafted by a committee and submitted to a vote. It acknowledged, as it must have, both unalienable rights of the people and the ultimate purpose of government itself, which was to secure those rights to the people. It further acknowledged that governments derive their just powers through the consent of this people, in this context — those who are governed. This was from the beginning in the DNA of the country, not because of the words chosen by Jefferson and Franklin and Adams et al, but because of innate characteristics and opinions held by the majority of the American people.

The next step in the creation of our country was the drafting and adoption of the United States Constitution. Every state had input into the drafting of the constitution. After it was drafted and available for all to read and digest, every state had a choice as to whether or not to adopt or reject the constitution. The notes of the convention kept by James Madison show the full range of the debate in the convention. And let me tell you something else about the ratification which you may not know. Each state selected the members for the ratifying conventions of the states. It was not a decision made by the state legislatures, bodies of general jurisdiction, but was made by a group of people selected for the sole purpose of adopting or rejecting the constitution as drafted.

Some states withheld their ratification until they received a promise that a bill of rights protecting individual and institutional rights from national interference would be added to the seven articles which outline and constitute our form of government. Once again, consent, not force, was the basis of the decision of how the country was to be governed and the decision to join the government by each of the states. The oath of office for officers of the government specified that it was the constitution, the form of government, that was to be upheld and protected by those officers. There was no dividing line recognized between the constitution and the nation itself. And since the constitution was the law of the land, which could be read and understood by every one of its citizens, we became a nation ruled by laws and not by men. This constitution and the history behind it became part of the DNA of the country.

The requirement that the consent of the governed was necessary in order to legitimate the government was a third element of the DNA of this country. And the model of government which they chose was a constitutional republic, a style of government providing through that constitution for protection of the rights of people and institutions through the separation of powers, the bill of rights and use of enumerated powers describing the functions to be undertaken by the national government.

This process of adopting a national constitution was a reflection of the character of the American people. The end product, which was adopted by the ratifying conventions of all 13 states, was a roadmap for how the future consent of the governed was to be obtained. Hence the people, those in whom the declaration of independence acknowledged the power to form governments as well as to change or abolish them, rested, created a government like no other for the United States of America through adoption of the constitution and the bill of rights.

What does this all have to do with American Exceptionalism, you may ask?

American Exceptionalism in my opinion, is very much about where the remaining power lies after a part of the power has been ceded to the government. The power which was not ceded to the government by the people continues to lie in the hands of the people themselves. This fact is embodied in the tenth amendment to the constitution, the last of the bill of rights. That is the most important element of the idea of American Exceptionalism. The people have ceded only so much power to the government as is necessary in order to establish peace and the rule of law so as to permit them, the people of the United States, to govern their own affairs as they see fit. This, rather than the idea of government by elected legislators and officers, is the idea behind “self government.” Self government is often misunderstood as the idea of being able to vote into office those who we believe should be there so that they can govern us under the fiction that we are acting through them. This, in my view, is not the main point of self-government. Self-government, correctly understood, is the idea that we citizens, acting within the law and in reliance upon the guidance of our own consciences, retain the right to govern our own individual affairs. We remain the sovereigns or governors of ourselves. This does not mean anarchy, far from it. it means that the people are entitled to pursue what they desire in the context of a free and civil society. Of course, as John Adams observed,

Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

As such our churches, the ones which the government was to stay out of pursuant to the terms of the first amendment, have been, to a great extent, the voluntary “re-education camps” required in a free country for it to exist and prosper. This concept of self government, coupled with personal restraint, which I believe flowed from a well-spring deep in the hearts of the American people from the very founding of our country, is the source of the concept underlying the term ‘American Exceptionalism.’

Categories: Politics, The US Constitution
Tags: , , , , , , , , ,

Comments: 4 Comments

VIDEO RECORDING OF COPS IS PROTECTED

September 2, 2011

Every good cop in this country should be happy about what happened on August 26, 2011!!! Why? On that day the United States Court of Appeals for the First Circuit (Northeastern U.S.) handed down an opinion strongly protecting the rights of we the people to record the police while they do their jobs in public. In Glik v. The City of Boston, et al., the Court decides that it is already “clearly established” that an individual has a first amendment right to record video of police while on duty in public and a fourth amendment right against being arrested for doing so notwithstanding the Massachusetts wire-tap statute. The Court goes so far as to call this first amendment right “virtually self-evident.” The right identified by the First Circuit is predicated upon Supreme Court precedent that generally the government may not limit the “stock of information” available to the public. This right, the Court holds, extends to members of the public who are not “reporter[s] gathering information about public officials.” It is also important to the Court that the filming was in public, that it was done from a “remove” and that Glik neither spoke to nor molested the officers in any way.

The result in this case is good news for everyone, but especially so for cops given the public display of video recordings of police apparently threatening arrest and prosecution of citizens lawfully exercising their first amendment rights. This decision removes from argument, within the territorial boundaries of the U.S. First Circuit Court of Appeals anyway, the proposition that such recordings are unprotected and subject to state infringement. All police should be happy about this since it sounds the death knell for such reports as this one which place the police in a very bad light indeed.

Law enforcement for centuries has gotten the benefit of the doubt in court. Convictions must be based upon evidence of guilt beyond all reasonable doubt. Many such convictions have been obtained based nearly solely upon police court testimony. This “presumption” is both wise and understandable. It is wise since police are hired to serve the law abiding community and to arrest law breakers thus they are empowered to do on our behalf what we would otherwise have to do for ourselves. It is also understandable because cops, as the representatives of the rest of us, are presumed to have no reason to lie about what they have seen and heard. They are generally perceived by juries as being unbiased truth tellers. Obviously what is true in most communities is not true in all a la O.J. Simpson and downtown Los Angeles.

The proliferation of video recording equipment in society should have been welcome news to the good police officer who expects to be filmed doing his job well and justly. But now, in view of the many videos and even more reports of police attempting to intimidate private citizens into not filming their activities, every thinking head will have a question. When numerous police are captured actually turning their power against those whose only crime is video recording, is it fair to wonder whether they have something to hide? That perception has the potential to make the job of the policing effectively impossible. If the police aren’t given the benefit of the doubt in court, how can our laws ever be enforced. Will a change in perception with the attendant reduction of convictions cause the frustrated police to take enforcement matters into their own hands since they will no longer be able to “trust” the public? That would be truly corrupt. Even if it doesn’t go that far it has the potential of creating a dangerous downward spiral.

Part of the problem is that, like in every profession, there are bad people who are police. There are those who simply relish control and power. They push things up to and over the line when they can. They like the adrenalin rush. And they feel protected in the current system because it’s their word against that of the ordinary citizens and “who you gonna believe?” Of course, a problem will arise when they take the case to court and the prosecution has to say, “who you gonna believe, me or your lying eyes?” The potentially worse problem arises when a significant number of jurors ask themselves what would this policeman be saying if there had been a camera, this could wreck the entire system of prosecutions?

So why are police concerned about video recordings anyway? There are at least three reasons that occur to me. 1. Everybody, even police, can have a bad day and a bad day recorded on video may get very bad for them. 2. They are concerned that being recorded “doing their job” may interfere with their ability to do their jobs in the future by disclosing “police procedures” which are not already generally known; by public dissemination of their identities which will be received by members of the public who they would rather be invisible to; and, 3. The traditional police model of “it’s us against them” forces police in general to protect even the bad apples among them and this can be very difficult when the bad apple in blue has made an appearance on a recorded video acting disgracefully.

Why then would good cops, and the rest of us, be happy with the protection provided by this First Circuit ruling of the right to unobtrusively record video of police in public? Because it takes the police out of the box they which they are in. They can’t just say to themselves, it’s us against them. They will themselves now have to discriminate between good cops and bad cops, because they can no longer afford to protect the bad ones. Harboring and remaining silent about bad police endangers all of them. They no longer have any choice. They will now have to discriminate in their support between those “good cops” having a bad day and those bad cops who can’t be trusted with power and who ought to be shown the door. It forces the police to hold themselves and their “brothers in blue” to a higher standard. They cannot hide from the camera being wielded by someone with first amendment rights. So if they insist on “protecting their own” and they protect the bad among them as well as the good, then they’ll lose the benefit of the doubt. This result is one which, neither they nor we, can afford.

Categories: Law, The US Constitution
Tags: , , , , , , , , , ,

Comments: Comments Off on VIDEO RECORDING OF COPS IS PROTECTED

TIME MAGAZINE – JULY 4, 2011: Does It Still Matter?

July 12, 2011

Cover of Time Magazine, July 4, 2011

Eight months ago in “America’s Holy Writ” I responded to an Andrew Romano article published in Newsweek magazine. I actually suggested that Tea Partyers read the Romano article because, to an extent, it’s criticisms were on target.

Timed for release on the Fourth of July, Time Magazine has now unleashed it’s managing editor, Richard Stengel, upon those unworthy few who would defend the ideas originally embodied in the constitution. The title of the piece, “Does It Still Matter” could equally apply to the piece itself.

I’d like to take a moment to reply to Stengel even though I don’t recommend his article as I did Romano’s. Stengel doesn’t even give the Tea Partyers a fair hearing, preferring to caricature most of their ideas rather than trying to argue against them. This is most unfortunate since I had high hopes for an article written by a man characterizing himself as having run “the National Constitution Center in Philadelphia.” This is legitimate background and the article therefore promised to be an even better and more informed read than Romano’s.

Let me first set out a principle which, to me, debunks the entire premise of Stengel’s piece which is never mentioned by Stengel. The US Constitution forms the sole legal basis for the existence of the federal government and the role of that government in our lives. To me, that makes it seem kind of important and not at all irrelevant. But for the existence of the constitution, the exercise by the federal government of any power over the American people or even over the states would be, very simply, illegal. The constitution cannot be irrelevant until either the federal government no longer exists or the constitution is replaced by something else legitimating federal power. Stengel never really admits his true agenda. He assumes without stating that the constitution is merely an ancient symbol which “unites” us rather than a legal instrument from which any and all federal power flows.

Stengel’s very first paragraph telegraphs what he is going to do. He starts by listing a few modern developments of which the drafters could not have been aware and in so doing suggests that the framers of the constitution would be unable to make any sense of these developments under their little ol’ constitution, to wit: World War II, DNA, Sexting, Television, Miniskirts, Collateralized debt obligations, Computers, Antibiotics and Lady Gaga. His first direct assault is on the father of the country, George Washington. Says he, Washington was ignorant of powered flight therefore suggesting that drones over Libya and the use of GPS to aim missiles would raise questions of war and peace which would just be beyond him. Stengel implies that familiarity with old style cannon balls could never have prepared Washington for the knotty issues raised by technology. Without taking a breath he follows the idea of Washington’s dullness with the idea that the framers didn’t know about health insurance or even “germ theory.” His suggestion, Congress’s power to regulate interstate commerce can be used to force each of us to buy health insurance and, although mystified by the product, the use of this power in this way would have pleased the framers. Finally but still only in his first paragraph, Stengel suggests that Thomas Jefferson’s repulsive conduct of owning and sexually using his slaves would certainly invalidate all of his ideas about small government because it (his conduct) would likely have colored Jefferson’s view of the half black Barack Obama as President of the United States. That’s a lot of work for a single paragraph.

In his second paragraph he follows with a sop to the old guys lauding their attempts to protect democratic freedoms (of course he never mentions that these “freedoms” appear nowhere in the original constitution but were adopted later by the first congress as a double-check against misuse of federal power, these freedoms are otherwise known as the Bill of Rights). He then assassinates the characters of the founders for their “slaves as 3/5’s of a person compromise” without even mentioning the reason for that compromise. He continues with an indictment of the constitution for male only suffrage and finally winds up his second paragraph calling them “kind of crazy” to reach a compromise providing that each state, large or small, would have two senators.

Most of you already know this but for those who don’t, the 3/5’s compromise enabled the northern states to limit the representation of the southern ones in the House of Representatives to the number of their white inhabitants plus 3/5’s of their slaves. This was an indelicate compromise to be sure, but it was one which forced the south to accept fewer representatives in return for the north’s grudging agreement to allow the south to keep their slaves. Without this compromise the southern states would simply not have joined the union. A slave owning country or several countries would have remained. As to the idea of women’s suffrage, Stengel doesn’t mention that the franchise was left to the states and was not even addressed in the constititution. Finally Stengel avoids mentioning any of the reasons which underlay the apportionment of the senate at two senators per state. Does he not recall that the senate was the body in which the power of the states themselves was to be protected? Each state had an equal interest in seeing that it’s sovereignty was not impaired by an overly active federal government and therefore equal representation was appropriate. Further, to have apportioned the senate by population would have allowed states with the larger populations a larger voice and hence more of an incentive to take advantage of the smaller states, as such, when passing measures affecting the powers of the states. The role of a elected chamber based upon population was already played by the house of representatives and a second body, like the senate, would have been wholly unnecessary if the interests to be represented in that body were the same as those represented in the house. If the states were not perceived as in need of protection from a potentially intrusive federal govenment there would have been no reason for a second body in the legislature at all, much less one with two senators per state. In his “kind of crazy” remark the former “director” of the “Constitution Center in Philadelphia” indicates that he is unwilling to understand or even give voice to the rather delicately balanced structure of the constitutional government which was needed to address the interests of every group whose consent to be governed by the new federal government was needed.

After taking down the foresight and prudence of the founders Stengel heads out after the Tea Partyers, those who are supposedly fanatical about the wisdom of the founders. He correctly draws the battle lines between the “original intent” group and the “liberal legal scholars” who analyze the text to find the “elasticity” they believe the framers intended. However, after drawing these battle lines, Stengel inexplicably omits any reference to the source of the debate. Adoption of The tenth amendment, one of those ‘bill of rights’ amendments he previously thought so highly of for protecting our civil and political rights, was required as a condition of ratification of the constitution by several of the states. He simply references the existence and general terms of this debate over intent and leaves it at that. In handling the issue this way he creates a rough equivalence between the two contenders. the expansive camp and the restricted camp without addressing the merits. The tenth amendment as passed by the first congress and enacted by the states has much to say about which of the contending parties in the debate has it right because it provides that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The intent behind the enactment of the tenth amendment is actually contained in the Preamble to the Bill of Rights, to wit:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

How did this history simply slip his mind, having been director of the “Constitutional Center?” Is it even relevant to him?

Without reference to the tenth amendment or it’s history, Stengel goes through the debates on several of the current issues currently requiring constitutional interpretation, i.e.: the dividing line between the war power of Congress and the power of the President as commander in chief of the military; the effect of the 14th Amendment’s acknowledgement that the debt of the US shall not be questioned on the debate as to whether it is even necessary to raise the debt limit; the question of whether the adoption of Obamacare is a form of regulation of commerce as contemplated by the constitution; and, finally, the question of whether the 14th Amendment’s extension of citizenship by birth in the US which was intended to confer citizenship upon former slaves should equally apply to make citizens of so-called ‘anchor babies.’

Stengel reaches some predictable results given his view of the constitution as a symbol rather than as a legal document to be construed according to the intentions of it’s drafters. Rather than intended to be stretched out of all recognizable form, the original constitution was intended to be subject to amendment as circumstances warranted and the people willed. What seems to irk Stengel and his crowd is, however, how high the bar for amendment was set by the founders. He prefers extensions of federal power by “analyzing” the language of the constitution in order to find the elasticity supposedly placed there by framers, a group still smarting from an oppressive British government which knew few boundaries to its power in the American colonies. His preference for looking at the constitition as a symbol rather than as a legal document subject to amendment is clear when he says:

We can pat ourselves on the back about the past 223 years, but we cannot let the constitution become an obstacle to a future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights

Strangely, however, at the end of the piece Stengel quotes Judge Learned Hand, to wit: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Is Stengel suggesting by use of this quote that the desire for liberty has died in the American breast? For myself, I prefer the words of a related thought expressed by Thomas Jefferson in a letter to Sam Kercheval in 1816:

Where then is our republicanism to be found? Not in our constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our constitution, all things have gone well. But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.

I agree with Thomas Jefferson in the sentiment stated. Unlike Stengel and apparently Hand, I don’t feel that yearning for freedom is dead in America. In fact, I believe that it is this yearning for liberty from the government’s intrusion in our daily lives which has given birth to the Tea Party. The Tea Party was not born out of a nostalgia for a dusty old document or for men who wore wigs or for those who held other men as slaves. The Tea Party embodies the voice of those people who stongly desire to govern their own affairs without either help from or control by the federal government and who are willing to engage in political battle in order to achieve that end.

Categories: The US Constitution
Tags: , , , , , , , , , , , , , , , , ,

Comments: Comments Off on TIME MAGAZINE – JULY 4, 2011: Does It Still Matter?