Immoral Maxims of an Unjust Judge (#14)

IMMORAL MAXIM & RHETORICAL REPARTEE #14:
The Blessings of Liberty: A Constitution whose Principles Live in the Heart of Men and Women

“He that isn’t busy being born is busy dying!”— Bob Dylan

Principle #14: The Blessings of Liberty

“We the people of the United States, in order to 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, do ordain and establish this Constitution for the United States of America.” (Preamble to the Constitution of the United States)

Unworthy Maxim #14: Standing Against the Tide of Freedom

“Much of the harm that has been done in recent years by activist Constitutional interpretation… is made possible by a theory which says that, unlike an ordinary law, which doesn't change -- it means what it meant when it was enacted, and will always mean that -- unlike that, the Constitution changes from decade to decade, to comport with... quote "the evolving standards of decency that mark the progress of a maturing society".” Justice Antonin Scalia

Pertinent Principles #14: The Blessings of Liberty for a Free People

“Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital, must be capable of wider application than the mischief which gave it birth.” Justice Joseph McKeena. United States v. Weems (1910).

“[A]mbiguities in previously enacted laws should be resolved in such a fashion that they are consistent with newly promulgated laws.” Herman Philipse

Whenever possible, laws and statutes should be clear, unambiguous, and phrased in terms that ordinary citizens can understand. They are not, however, and that is one reason we have courts of law to resolve legal ambiguities and controversies. While a Constitution may indeed have a number of straightforward and, sometimes, unambiguous directives, a Constitution is much more than a collection of rigid pedestrian procedures. This is particularly true for our own Constitution which, from its conception, has provided a general framework which a nation of many generations could work out their lives as both a people and as individuals. It was never and never shall be a set of merely linguistic prescriptions to follow blindly until the appropriate amendments were made. It was never and it never shall be a perfect document. It has been a guide, a guide with both aspirational and pragmatic features within which inevitable political and religious conflicts and struggles have often been resolved without bloodshed. Except for the Great Civil War we have, for the most part, avoided some of the worst conflicts that sometimes tear nations apart. We have not, however, avoided structural injustices — segregation, labor unrest, Indian massacres, plutocratic excesses — and we have only very occasionally been a “Shining City upon the Hill.” So, the Constitution provides a Framework within which we have some significant hope and some significant history to help us believe that we can resolve conflicts in a way which furthers both public justice and individual freedom. In the long run, to claim either more or less for the Constitution than it can be reasonably expected to deliver is to spoil its worth.

There are, indeed, people who still believe in a “Living Constitution.” I am one of them - a proud descendent of John Hancock and a child of Kentucky (home of the Great Dissenter — Supreme Court Justice John Marshall Harlan). Of course, I would never be so foolish as to accept Antonin Scalia's misinterpretation of that phrase. Justice Scalia, after all, thinks that the Declaration of Independence is only an 'aspirational document' and that " 'actual' innocence is not a justiciable issue for the Supreme Court. True, each Supreme Court Justice must be mindful of our legal principles & history AND -as a human being - must interpret the law using his or her inevitably somewhat subjective understanding as a person alive in the 21st Century. What we expect is thoughtful FAIRNESS. However, with the PRETENSE of supposedly 'objective' standards such as Scalia's we get not only RIGIDITY, but HYPOCRISY. Bush v. Gore (2000) and Citizen's United (2010) are only the most glaring examples of the disaster of those who cover their cruelty in punishment, greed in economics, and political partisanship with the pretensions of traditional 'understanding.'

For me personally, a 'living Constitution' is that one respects the Constitution's text as the starting point. But to interpret its ambiguities and uncertain implications, one should provide a Construction which is most consistent with the Better Angels of our nature and history. Others may have a different vision - but none of us can escape either our subjectivity nor the fact that no document deserves respect unless it can be accepted as living in one's own mind and heart.

As Alexander Hamilton said in 1784 --“In law as in Religion THE LETTER KILLS’ but “THE SPIRIT MAKES ALIVE.”


CASES CITED

Bush v. Gore, 513 U.S. 98 (2000)
Citizen's United, No. 08-205 (2010)
Weems v. United States, 217 U. S. 349 (1910)