A Constitutional Dilemma
(Sorry about the history lesson – but I was a history teacher!!)
The founding of the United States was messy. Thirteen colonies, breaking away from the British Monarchy, were incredibly jealous of their sovereign powers. They came together to fight the British, but they were like a group of squabbling children, unwilling to give authority to a national government. The Articles of Confederation, an agreement that took four years for all thirteen colonies to ratify, did not even give the Nation the power to tax, only to ask the states for money.
At the end of the Revolutionary War, we were a nation of loosely organized sovereign states. We found that this organizational model did not work; thirteen currencies, thirteen tariffs at the borders, thirteen different codes of law, did not make a nation. It was a recipe for division and disaster.
The Constitution was written, and while the Preamble stated WE THE PEOPLE writ large, it still was a contractual agreement among the states. Nine were required to agree to make it the foundation of the United States.
There is a segment of current legal thought that claims the Constitution should only be evaluated through the thinking of those that actually wrote it. They believe the words, carefully chosen, often in compromise, should be examined only in the context of the thoughts of those amazing minds: Madison, Hamilton, Sherman, Franklin, and of course, Washington.
This echoes the earliest debates of our nation, the “strict interpreters,” who wanted to follow the letter of the document versus the “loose interpreters,” believing that there were implied powers that the National government could exercise. The “strict interpreters” then, and the “original meaning” voices now, both saw the only way of expanding the Constitution was through the Amendment process.
This argument advanced into the mid-19thcentury, culminating in the attempted dissolution of the contract, and of the Union. The Civil War used military force to enforce a differing view of the Constitution, as a compact among the people, not just the states. When Lincoln stated, in the Gettysburg Address, that this was a “…government of the people, by the people, and for the people,” he was defining a new interpretation of the deal.
The Fourteenth Amendment further defined the change. It made it clear that there was a single citizenship, of the United States (not just of individual states) and that states, or the nation, could not differentiate or discriminate among those citizens.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. – 14th Amendment – Section 1
While the writing of the Constitution brought the states together, it was the Fourteenth Amendment, and the war that preceded it, that made us one nation. While the Constitution said WE THE PEOPLE, it was the ALL PERSONS of the Fourteenth that made us Americans, and guaranteed what we now believe and enforce, the equal protection under law.
We have in our midst today, a powerful legal group that has been given the ultimate authority of selecting our Supreme Court Justices. Unfortunately this group is not the United States Senate, though Constitutionally they still have that power. The President has “contracted out” the selection process to the Federalist Society, an organization of like-minded lawyers who have dedicated themselves to the concept of “original interpretation.” They are re-litigating American history, trying to take our nation back to a time before the experiences that shaped our current law.
They wish to apply only the thoughts of the founding fathers to the two-hundred thirty years of experience we have lived since. They want to believe that the founding fathers, who led a Revolution, organized a government, then re-organized it again; did not write a document that in and of itself could grow and expand with the changing times. They want to judicially determine that change can only be made through amendment, not through changing interpretation to meet changing times.
Their impact is already being felt. The scourge of money in our political system, already enhancing the formidable powers of the wedge interest groups and the billionaire class, has been protected as “individual free speech” by the Citizen’s United decision, five justices (four of the Federalist society) to four. The door was opened to the NRA and the Koch Brothers, and even more insidiously the Mercer family; to buy our national government.
This is why the Supreme Court appointment of Brett Kavanaugh is so important. He represents a Federalist Society coup, a full majority of the Court. The bitter struggles that applied the Fourteenth Amendment to our daily lives, rights that protected ALL PERSONS and they way they live, are in jeopardy. It is an old argument, one we thought was already resolved. This nomination opens the door to that struggle once again.
Just heard that the President has determined not to fly the flag at half-staff in honor of Senator John McCain. It shouldn’t be a surprise, I guess. The President is a man who does not recognize heroism, or grace, or dedication. His lack of respect for McCain says much more about him, than the Senator.
He could look East and West, but he always sailed true North.
– Admiral Stavridis on John McCain
And Trump can’t tell East from West, and doesn’t care, and that’s why virtually everything he says and does goes South.