Friday, August 13, 2010

You can’t do that in a Constitutionally Limited Republic

In a recent decision, the Supreme Court ruled that a community can’t ban the possession of guns. It is a right that is not only safe guarded specifically in the Second Amendment of the Constitution, it is a right that is guaranteed by the Nine Amendment.

That's right, the Ninth amendment. Even if there wasn’t a Second Amendment, the Ninth states that just because the document listed some of the rights that people have (the Bill of Rights), doesn’t mean it is all the rights that are “retained by the people.”

An argument that could be applied is that if the voters of the community decide they don’t want anyone owning a gun, even for a very good reason, then the government should not have the right to trample on the rights of the voters by declaring the law unconstitutional. That would be absolutely true if we lived in Greece 2,500 years ago. At that time, the form of government was a straight forward democracy. In a democracy, the majority rules absolutely. If one more voter supported the banning of guns than the other side, there would be no guns. And, more importantly, the Supreme Court would have nothing to decided, the voters have spoken.

But, we live in a constitutionally limited republic. The difference from a straight forward democracy is that the majority does get to make the rules but they can’t make rules that violate the rights of the minority without good reason.

In California, Chief U.S. District Judge Vaughn Walker ruled that the ban on gay marriage passed by the voters of California is unconstitutional. Charles J. Cooper, the lead counsel defending the ban, said, “The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge…” (1) The attorney seems to believe we are living in a democracy and not a republic.

As stated above, something can't be banned just because a majority of voters support it. In this case, the rights of people who would like to marry, the minority, would be violated. In a constitutionally limited republic, the government can not allow the rights of the minority to be violated without good reason.

The U. S. District Judge made the best ruling possible in the case of marriage.



Monday, August 9, 2010

Interpretation of the Constitution

The interpretation of the Fourteenth Amendment and the possibility of amending its wording will take center stage over the next couple of years. The interpretation of the Constitution has always given reason for some passionate debating on both sides. Those that believe in original intent suggest that we should examine the words and culture at the time to find precisely what the authors meant. Those that view the Constitution as a living document would interpret it by applying current community standards. The answer lies in the document itself.

As an example of the shifting community standards and how the Constitution applies we should examine the use of pillory and red lettering as punishment. Judges and juries issued both forms of punishment during the time of the writing of the Constitution. There were no appeals at the time for what would be considered today cruel and unusual.

The Supreme Court at the time didn’t take such cases because the punishments were not usual, if they were cruel. In fact, discussion at the time of the adoption of the Constitution, according to the book “Discussion on the Adoption of the Federal Constitution”, was concern that the form of punishment discussed above and others at the time would be made unconstitutional if it was adopted. But, cases that tested the cruel and unusual clause of the Eight Amendment, didn’t come forward until many years later.

In today’s society both punishments, pillory and red lettering, most likely would be ruled by the Supreme Court to be both cruel and unusual. But, by looking at the original intent, both were not considered unconstitutional at the time. So, what is the reasoning behind declaring both cruel and unusual when it was clear at the time that the authors of the constitution and the legislatures that approved it didn’t think they were?

It is that the authors, in this case specifically and in the entire document with some exceptions, intended the Constitution to be interpreted with some consideration to the contemporary standards. The authors used vague language at times, modifiers, conditional phrases and other things to weave together a document that could be approved at the time and would last more than a few years as did the Articles of Confederation.

In this specific case, they used the terms, “cruel and unusual”. Courts would need to rule that a punishment was both cruel and unusual, as they have throughout history. This would allow the community standards at the time of the writing of the Constitution to stay in place, but, as one debater observed at the time, “if a better way can be created, then so be it.”

When there was full agreement on an issue they wrote in very exacting terms. They didn’t use the same phrasing used in those parts of the Constitution where they were concerned about finding a compromise. The primary example of which is The No Religious Test Clause Article VI, section 3. It would appear that no one had any objection to insuring that no office holder or appointee had to be of a certain religion, or religious at all.

The authors of the document tells us by the words they used how to interpret the Constitution. When they felt strongly about an issue and where able to work without much compromise, they used very clear language. This tells us in itself something even greater than the clarity on the issue the authors were addressing. This tells us that when they were able to and wanted a strict interpretation, they could use clear language. But, when the authors were intending to allow contemporary community standards (and, by extension perhaps, community standards) to have some weight in a decision, they used more vague language that would allow some room to shift the application of the established principles.

There is room in the interpretation of the Constitution to consider contemporary community standards. The authors were smart people that had a lot of experience in hammering together a nation. They know that community standards would shift over time and wrote a document that reflected that.