Civil Discourse Now

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Paul Ogden continues to err on constitutional interpretation. Tomorrow's Show at Marion County Public Library.

Next Saturday, April 6, it will be our pleasure to host Sheila Suess Kennedy and Karen Celestino-Horseman on "Civil Discourse Now" to discuss jurisprudence and the Constitution. We will stream "live" from the Marion County Library, main branch. I will provide more details about location later.
Paul Ogden has written a somewhat comprehensible riposte—at OgdenonPolitics dot com—to my blog of April 1 concerning jurisprudence and the bogus nature of "originalism" as a theory by which the Constitution may be construed.
I will address his response in part here but more fully later. Now mainly I wish to address a means of construing the Constitution that considers more factors than simply what people today would guess the Framers’ intent to have been in 1787.
First, the words of the Constitution bear meaning. However, someone must define those words and construe the words in the document. Words carry meaning both in individual use and in the context of the sentence, paragraph, or larger word in which they are employed. Certainly one may look at the meaning of words as they were used in 1787. One also may look to the entire document to glean what the Framers had in mind.
And what is one to make of the language of a document in which so many compromises were made? The "Great Compromise"—the means by which large State and small States were mollified through creation of a Senate, membership of which is comprised of two (2) Senators from each State, and a House of Representatives, membership of which is determined by decennial census—was not the most significant compromise of the Convention. The matter of slavery was the focus of more compromise than any other issue. Unfortunately, few of the Framers took the stand that slavery was inherently evil. Alexander Hamilton, to his credit, was amongst the few who held this view, a product of his youth in the Virgin Islands. It "was the possession of slaves that made the South the wealthiest section of the nation." Collier and Collier, Decision in Philadelphia, 2007, p. 185. Wealth was not the only issue in regard to slaves. The make-up of the House of Representatives was derived from the decennial census:
"Slaveholding states wondered how their human property would be counted for congressional-apportionment purposes. Northern states finally agreed that five slaves would be counted as three free whites, the infamous ‘federal ration’ that survived for another eighty years. The formula richly rewarded the southern states, artificially inflating their House seats and electoral votes and helping to explain why four of the first five presidents hailed from Virginia. This gross inequity was to play no small part in the eventual triumph of Jeffersonian Republicans over Hamiltonian Federalists. In exchange, southern states agreed that the importation of slaves might cease after 1808, feeding an illusory hope that slavery might someday just fade away. Without the federal ratio, Hamilton grimly concluded, ‘no union could possibly have been formed.’ Indeed, the whole superstructure erected in Philadelphia rested on that unstable, undemocratic foundation."
Ron Chernow, Alexander Hamilton, 2004, p. 239. If we are to look at the intent of the Framers, are we to somehow winnow it out from compromises, in which the various parties had different ideas about what their compromises had wrought?
Second, the Constitution provides for amendment in Article V. Here is one place at which Paul’s view of the Constitution hits a few bumps, particularly in the form of the changes wrought by the Fourteenth Amendment after the Civil War. Those bumps arise because in Paul’s concept of Federalism, the individual States possess "rights." And this is another point on which Paul errs. People possess "rights." States exercise "power." That is the way in which theory has developed from Hobbes through Locke and onto the Framers. The Ninth—with its reference to "certain rights ... retained by the people"—and Tenth—"powers ... reserved to the States"—Amendments illustrate this distinction, and the distinction is important. Under our concepts of government, developed over these last 226 years or so, any government exists by the will of those governed. The government—be it Federal (central/national) or State—does not exist as an entity with greater moral standing than its constituents. When one examines "power," one must look at its practical exercise.
There only can be one true sovereign authority in a society. This is a lesson not taught, perhaps, in the courses Paul has taught over two decades, but learned by the Framers, the American people in the time between the ratification of the Constitution and the outbreak of the Civil War, and by the American people in the history since.
The Constitutional Convention convened because many of the leaders of the various States were alarmed by the lack of power in the central government under the Articles of Confederation. "Under the Articles, the government consisted only of Congress, with neither an executive branch nor courts. Worse, Congress at this time (often referred to as the Confederation Congress) frequently lacked a quorum to take action and rarely had money to pay for any action it might take." Stewart, The Summer of 1787, 2007, p. 6. Shays’ Rebellion scared many people in the country. Collier and Collier, Decision in Philadelphia, 2007, pp. 15-16. When the Framers gathered in Philadelphia, the main characteristic they sought to imbue in their creation was a central government. The Supremacy Clause is a recognition that there only can be one sovereign. Certainly the individual States may have various powers they exercise, but all exercised, ultimately, without intervention of the Federal, or central, government. When States sought to secede on 1861, the reaction by the Federal government was swift and severe.
The greatest evil that ever was institutionalized by our Constitution was slavery. That led to some of the paradigms for discussion of Constitutional powers. The Fourteenth Amendment to the Constitution came about, in the wake of the Civil War, to ensure equal protection of the laws. The Fourteenth Amendment greatly expanded a "federalist’s" reading of the Constitution. Now the document included a "trump" card, in addition to the Supremacy Clause, to play on States.
In 1954, Brown v. Board of Education of Topeka was decided by the Supreme Court. Without lifetime tenure for justices of the Supreme Court, it is highly unlikely that Paul Ogden’s vaunted State legislatures would have acted to end segregation. After all, only in the past couple of months has Mississippi finally gotten round to ratifying the Thirteenth Amendment, ending slavery. Segregation was a vestige of slavery. Brown was an exercise of Federal authority. There was a response to the case from those who advocate States’ rights, that the Federal government was interposing itself in a matter best left to the States. Had the Federal government followed that view, schools, lunch counters, bus seating, and schools might still
Third, we have to look at what rights we have as people. If these rights are universal, how, then can individual States interpose themselves and parse out those rights? The right to marriage equality is not written in the Constitution; nor is the right to marriage. However, the Court has recognized that the right to marriage and decisions about family are amongst those rights protected by the Fourteenth Amendment. Today many people accept the right to marry as extended to couples other than a man and a woman. This does not rely, as Paul contends, on public opinion polls. The cases argued before the Court last week had percolated up from United States District courts after hard-fought litigation. In 1954, public opinion polls probably would have shown the majority of those able to vote in the United States opposed desegregation. Few would question the rights recognized and protected by the line of decisions that began with Brown. Paul also mentions the death penalty and takes solace in the three mentions of DP in the Constitution for the idea the Framers recognized DP as within the parameters of the Eighth Amendment’s prohibition of Cruel and unusual punishment. However, since 1787, when many crimes were capital offenses, we now are down to only murder and treason.
Why let the Supreme Court override the wishes of the 60-some percent in opinion polls on DP? Well, it is difficult for a politician to run on a platform of mercy and dispassion in enforcement of laws. Fear is whipped up. "Hanging judges" get elected and re-elected while judges who go "soft" on crime are dispatched. Madison and other of the Framers argued against the tyranny of the majority, as carried out by the legislative branch. If so much of the rest of the World sees DP as cruel and unusual, and if, as many studies and cases have shown, DP is arbitrary and fraught with error, why would Paul not understand that the Court can—and should—find such a matter cruel and unusual, and the right to be free from such an exercise of government one that is a right to all, not simply to those whose legislatures have decided to enact the appropriate statutes? DP is not an effective deterrent. DP lacks any positive aspects except as a means of societal vengeance—and then only against those who are poor or of a minority race.
Paul is right about one point. Society does not "evolve" to a conservative point. The nature of "conservative" is to "conserve" or maintain that which it. To "evolve" means to go beyond that.
So we construe the Constitution on a case-by-case basis. We look at the specific provision or provisions of the document in question, we compare our case with other cases that are precedent, we consider intervening amendments and legislation, and we consider the facts of the case before us. That takes a lot of work.
And I don’t have any nifty pictures to put into this blog.

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