Sunday, September 7, 2014

thoughts on a constitution

Antonin Scalia is the U.S. Supreme Court's most passionate proponent of “originalism.” He's used the concept to harm the country significantly during the past two decades.

“Originalism” says that in close Constitutional cases you look to what the Constitution's framers knew and wrote in the 18th Century.

Like most doctrines, the justices use it when it's convenient but ignore it when it's not.

The opposite view is that some pretty thoughtful men created a living constitution that could grow with our country.

I found a neat articulation of that in a nearly century-old article in the Catholic Charities Review.

The 1910's were progressive times. Woodrow Wilson had avoided some federal legislative proposals by arguing they were illegal or should be decided by the states; but by 1915, looking at the 1916 election and Theodore Roosevelt's return to the Republican Party, he loosened up a bit.

A new law prevented kids under 14 from being employed in industry or at night or longer than eight hours a day. With hazardous occupations, the minimum age was 16.

But was this constitutional? Weren't laws on working conditions a matter for the states? (Many states had enacted such laws, but some southern states hadn't.)

Article I, Section 8 empowered Congress to “regulate commerce among the several States.”
Therefore, as the Catholic Charities Review noted, “the new Federal law simply prohibits any establishment that employes children in conditions contrary to the standards set up in the law, from shipping its products in interstate commerce. . . . [T]he law seeks to abolish child labor by making it unprofitable.”

The writer called it “a nice constitutional question” and anticipated a court challenge. He conceded, “In the minds of the men who wrote the Constitution there was probably no intention of enabling Congress to exercise any such power as is contemplated by the law that we are considering.
Nevertheless, this would not be the first instance in which the language of the Constitution has been interpreted to mean more than the Fathers intended it to include.”

He added that with a Constitution so difficult to amend formally, such methods were essential. “Otherwise, our social and industrial life would be strangled by a Constitution that was made to fit the conditions of the eighteenth century.”

It's an ugly but unarguable fact that naked capitalism is pretty brutal. It's too eager to use up men, women, and children, then toss 'em on the slag heap when they can't work anymore, and its indifferent to our air, water, land, and climate.

Our founders were preoccupied with the evils they knew, such as monarchies. They never imagined industries huge enough to poison our world and international corporations more powerful than governments. Should we reject necessary reforms and humanitarian legislation based on their failure of imagination?

A fairer sort of originalism would ask, “What would Jefferson have done?” Ask not whether Jefferson intended to outlaw something he'd never seen. Ask whether the man who wrote that each of us had a right to “life, liberty, and the pursuit of happiness” would have wanted our Constitution used to let 13-year-old kids be worked 15 hours a day instead of going to school. Ask whether the man who sent Lewis & Clark to explore our beautiful country would have wanted us to let huge corporations destroy it because he hadn't conceived of them during his simpler times.

I understand the argument that this second sort of originalism is inherently subjective; but at bottom, so is Scalia's kind.

The current court's desire to strangle us with extremely narrow interpretations of our Constitution may exemplify why Jefferson suggested there ought to be a revolution every ten or twenty years.
 [The column above appeared in the Las Cruces Sun-News today, Sunday, 7 September 2014.]

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