After I called the attention of some close relatives to an item here that referred to a bit of family history, one of my close and dear ones replied and donated a few Con Law views.
Here's what she said:
"Americans know the rules.
Amending the constitution should not be allowed. (Horrors!)
Whiny yammering should not be allowed.
Our forefathers were a God-fearing, respectful people, who believed deeply that faith and goodness shall stay the day. And, oh yeah, carry a weapon to protect your own.Religion shouldn't have anything to do with any decisions on constitutional changes. When something is against living ones life, or having a quality of life equal for all, I get aggravated.
If I work my entire life for 'my stuff,' don't tell me that someone can take it, because they think they have a better purpose for it. [A reference to last week's decision in Kelo v. New London on eminent domain, no doubt.]
Someday I'll read the constitution and try and figure out how it survived since 1776 to about 1930 before a bunch of lawyers and/or feel good groups gathered to decide that it needed to be amended.
Too many lawyers (oops my bad), too much gab on their tongues, bring on the British system, if you lose your suit you pay all legal costs of both sides. Frivolous suits go bye-bye and our constitution stands on it's own merit.
When was the first amendment to the constitution? And what were the dates of subsequent amendments?
And is there a cluster of amendments that shows an historical changing of life as we know it? And then one can jot in the presidents in office at the time the amendments were legislated with their affiliation to a political party. Wheel spinning I think, but an interesting study just the same."
I replied:
As to the Constitution, you need to catch up on your reading before you go pronouncing on factual-legal matters.
The Constitution was amended by the Founding Fathers in 1791 (1st Ten Amendments), by almost the Founding Fathers in 1794-98 (11th), by a lot of the originals in 1803-04) 12th, then again three times shortly after the Civil War (13th - abolishing slavery), (14th - liberty, equal protection, due process, citizenship, congressional power to enforce), 15th Negro suffrage). [When I was growing up, Negro was the proper term, while black could get you beat up. Old habits die hard.]
These three alone are considered by some to be Constitution Ver. 2.0, stressing equality rather than property (people used to own other people as property and rent them out, beat them, work them to death, and sell their spouse and children).
The income tax amendment allows the U.S. to pay for defense, 1913. WWI follows.
Women get the right to vote in 1920.
The Depression, inspired by Wall Street, some think, results in FDR and the New Deal that helped keep your parents alive until WWII revived the economy.
The Supreme Court breaks the conservative logjam by a one vote switch in 1937, never to go back to the old laissez-faire, screw the worker (women, children, and your father) economics. How? By leaving economic decisions up to the legislatures but keeping hold on liberty issues.
Today's conservatives are trying to reverse this by advocating for conservative judicial activism, which is what the fight is about now over Supreme Court appointments. Back in 1937 (in fact from about 1887 until then) the laissez-faire conservatives were in the driver's seat and the liberals railed against conservative judicial activism.
Restraint vs. Activism in decision-making is in the eye of the beholder.
Those were the days of the Robber Barons when the working person had no rights at all, much less the consumer. Beginning with the New Deal, labor got rights, child labor was outlawed, minimum wages, fair labor standards were introduced (wages, hours, conditions, safety), and women got workplace protection.
If you'd read up on all this, you might consider rethinking your broad generalizations unless your middle name is Jay Gould. I doubt that Wall Street would care to roll the clock back on all this, although I must say that the Bush Administration does seem to be seeking to roll back the New Deal.
Unless you imagine that you prefer living in a 1787 world of slavery, no rights for women, no vote for women, no vote for those who didn't own real estate, etc., there must be some mechanism to allow change.
The amendment process is unusually cumbersome.
The remaining mechanism is the power the Supreme Court has to declare other governmental acts unconstitutional, which is where the activist-restraint tug-of-war takes place; that and the nomination process.
Let me know if you have a better way.
Refusing to allow change is an invitation to revolution, and revolution is where the haves lose all to the have nots. Wealthy Loyalists were forced to flee to Canada, losing all.
Trevor [her soldier son] is fighting for today's Constitution, not the 1930 or earlier version.
The current one is worth fighting for. The pre-1954 version legalized Jim Crow.
It's taken a lot to get this far.
Be careful what you wish for.
Love,
BobL wrote back:
I guess a lot of what you wrote I knew at one time and one does forget the details with time. [Hmmpf...It's the ol' Devil in the details routine, again, I see. OK, we'll chalk this one up to poor memory.]
That was a great history and I've printed it out and am keeping it handy for reference.
Your writing then reminded me of your blog on your students' writing, explaining something complicated in plain vanilla language for 'me'.
Nice and thanks.Thanks for the info and I enjoy the Blog.
Love you, ...
***
Plain vanilla, that's me.
She gets it.
I'm so glad we had the exchange.
One way to look at the Constitution is to understand it as a document that sets forth certain values in a general way, to allow development in specific areas as the need arises, and sets forth certain limits where government may not go, like inside your head and heart (and body, See Rochin v. California, the stomach pump case), and to permit change over time.
Look at it this way; suppose you undertook the task of writing a document that was supposed to govern a country expected to last forever, or at least the next 200 to 500 years. You know what's happened in the past, which can be summarized in one word: CHANGE. There's been a lot of change that you happen to be familiar with.
You want to set forth certain values, and certain limits on government, but you don't want to be an obstacle to change, especially the useful and good variety. As to what's useful and good, however, while you are willing to say what that is at the time of your writing, you want your children and grandchildren and their children to have the power to make adjustments for conditions that exist then, in the future. You don't want to handcuff your grandkids, you want to free them to live their own lives, which means to establish their own conditions and rules to the extent they can, paying attention to what has gone before, but allowing modifications for new circumstances. So you do that by providing for change in the governing document, the Constitution, we call it.
No one should regard you as a God-like being just because you were on the committee that helped to draw up the new constitution you are trying to write. You have input from others and make a lot of compromises in order to get the thing passed, which is not holy writ from God, but a letter from you to your grandchildren and their kids and theirs, who you will never get to meet.
So you do the best you can, in all modesty, knowing full well, that what works for today cannot possibly work far into the future, at least not in all respects. You have to let go, just as you do with your kids. You raise them not to be under your thumb but to get out from under your thumb. They have to marry who they please and raise their own kids, their own way. If you did a good job raising your kids, they'll be capable of raising their own without your help. They'll make their own good decisions and bad, but it will be theirs.
The one thing you might want to warn your descendants against is looking at you as though you were some sort of a god. A little respect, please, but let's not make us out to be gods. The evidence wouldn't support the conclusion.
So we treat the Founding Fathers and Mothers with respect, but do not make them out to be better than they were. They were parents raising problem children, is what they were. They did a reasonably good job under the circumstances if you are not black, that is, or a woman, or were propertyless. Other than that, they at least got us started. It took a great Civil War to correct their mistakes. This was a great wreck that killed 600,000 people and stalled the broken country.
We jump-started the country all over again after the Civil War using a new constitution modeled after Abraham Lincoln's Gettysburg Address: government of the people, by the people, for the people. After that, we started focusing on people more than property. People owned property, not the other way around, any more, as in Version 1.0. That's what Amendments 13, 14, 15, are all about, especially liberty, equality, and due process of law, just a few words that need a lot of filling in, and who do you think gets to do the filling in?
So today we fight over the meaning of those words and who gets to decide what they mean; hence the confirmation battles of the recent past and, unless I miss an easy guess, the immediate future. Because we don't trust God to write our laws. We have to do it for ourselves, just as our grandkids will have to do for themselves. Our Constitution is how we deal with change. The Supreme Court is our regulating mechanism. If things get far enough out of kilter, there is the formal Amendment Process itself, something rarely resorted to, because usually unsuccessful, for good reason.
A useful exercise, a mind game of sorts, is to imagine, when considering a Constitutional Law issue, what your position would be if you wore different hats, had different stakes. The obvious examples are the plaintiff and defendant. Then you might be a legislator, or the president, or a Supreme Court justice. You'll get different results depending on which hat you have on.
The litigant sees only his or her purse or sense of right and wrong.
The legislator sees power issues.
The president says, "Hey, I need to protect the country; that's why the people voted me into office; I intend to carry out my duties in good faith, now."
The Supreme Court justice says, "Yes, and we respect that, but after this storm is over, we still need to have a country that sails on an even keel, so you can't do that, or you'll tip over the ship."
The job of the Supreme Court is to act as the more contemplative body, the one that is insulated from the storm, the way Ulysses was lashed to the mast in passing the Sirens' Song, so he wouldn't be distracted from the main goal of the voyage, getting home. The SC is supposed to be good at helping us keep our eye on the main goal, getting home. It is supposed to take the higher, longer, 'national' view, not the local or parochial view. So much of the time, this view involves questions of national power, not the particular litigants' interests. Sorry about that, but the Supreme Court is the last place you want to look to for vindication of your individual rights. Yet, it is there and we do resort to it, because we must. The disappointment factor, meaning the risk of disappointment, is SO high. When the rest of the country ignored them, or worse, this is where those fighting racial injustice went. It was their only hope. It came through, in Brown v. Board.. Recently something similar occurred regarding gays, in Lawrence v. Texas. Maybe it will come through for you, too, some day. Keep pitching.