Saturday, March 19, 2016

Wanna Know What the Constitution Says? -- Try Reading It!

The next time a columnist or letter-writer wants to tell us what the U.S. Constitution says, s/he should read it – and maybe examine its context and history.
Randy Lynch's column, “The Constitution Is Not a Living Document,” sparked this revolutionary suggestion. 
He wrote: “Our nation was founded by honorable men who understood that they were imperfect and limited. It’s part of why they made it clear that our rights come from God and not from any document or government.”
This belief that the U.S. Constitution grounds our rights in religion is wishful thinking. Without mentioning “God” the Constitution insists that religion not dictate our political decisions. No “establishment of religion.” “No religious Test shall ever be required” for any public office. Our founders knew the word “God.” They even used it to make the Declaration of Independence sound less revolutionary. No one imagines they omitted it from the Constitution because they fell asleep or weren't paying attention.
Mr. Lynch cited the Constitution's “purpose to limit government, not expand it” as a bedrock principle. Indeed, the founders inserted checks and balances among the three branches, and they focused federal power on subjects like interstate commerce that needed federal control. 
But the basic purpose of the new Constitution, despite limitations on government, was exactly opposite to what Mr. Lynch seems to assume. Upon winning independence from a distant and dictatorial king, the founders set up a weak central government under the Articles of Confederation. It failed, miserably. They met in Constitutional Convention to strengthen the federal government and make it more “vigorous.”
Mr. Lynch mourns Justice Scalia, opining that “Focusing on results instead of our foundational principles will lead us away from the rule of law.” But when the chips were down (as in, for example, Bush v. Gore) Justice Scalia's great fault was doing exactly what Mr. Lynch bemoans. Scalia's much-vaunted originalism and states' rights principles went out the window when they cut against important results he wanted to reach.
Mr. Lynch criticizes SCOTUS for changing or broadening its interpretations of certain rights, contrasting this with what he seems to assume was the clear the time-honored certainty of 2nd Amendment protections.
Rights to contraception and abortion are not explicitly stated in the Constitution. The Court interpreted the liberty interest and 9th Amendment rights made applicable to the states by the 14th Amendment. Ironically, in Roe v. Wade the Court did just what Scalia and Lynch would have wanted it to do: Justice Brennan discussed at length how the law treated abortion at (and before) the time of the Constitution!
Meanwhile, until recently the Court had rejected “2nd Amendment gun rights” as we now understand them. Nineteenth Century cases held that the Constitution didn't protect the individual's right to bear arms against state interference. A 1939 case upheld a gun-control law absent “evidence that [a sawed-off shotgun] has some reasonable relationship to the preservation or efficiency of a well-regulated militia.” Even in 1997 the majority didn't seem to recognize that gun control might violate the Second Amendment!
Thus, the expanded gun rights Lynch applauds came about in rather the same way as (though a little more slyly than) clearer recognition of women's rights to decide what to do with their own bodies. Both are contemporary interpretations of old words.
A principled “strict Constructionist” might disagree with Griswold and Roe v Wade, but would be at least as startled by the sharp change in judicial interpretation of the Second Amendment. 
How profusely the weeds of convenient misinterpretations grow, how passionately believers espouse them, and how easily dispelled they are by facts!
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 20 March, and will appear later this morning on the KRWG-TV website.]

[The column contains links to the U.S. Constitution and to Mr. Lynch's column in the Sun-News.  I'm not hiding the ball.  The Constitution says what it says.  And it doesn't say our rights or politics are grounded in religion.  It trumpets quite the opposite: that your religion may influence your political views, but not the conduct of our government!  Couldn't be clearer.  Our founders didn't even put God in the oath of office.  You just swear or affirm you'll follow and obey and defend the Constitution.  
I can't quite figure out why so many Tea Party acquaintances suppose otherwise.  What they often say when I point out God ain't in the Constitution is, "But they mention God in the Declaration of Independence!"  Well, yeah.  And although I haven't examined the history, I can guess why, as a lawyer.  Rebelling against Great Britain was a big deal.  Britain didn't like it.  Other empires might see it as a danger.  Even among the populace on our side of the pond, I've often heard that about a third favored Revolution, about a third were Tories, and about a third didn't much care or didn't know.  If that's remotely so, mentioning God was a no-cost effort to make what the rebels were doing more acceptable to some of the doubters.  "You're usurping the King's powers!" "No, our rights come from God!"  "Oh, I see."   But it's clear: when they were organizing the government, setting up a system for the ages, God had no place in it.  Wisely, I think, since so many have such different concepts of God. 

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