Constitution Shmonstitution


Here is the big money question that any “activist” liberal judge or advocate of same should have to answer: If Harvard Medical School taught anatomy like Harvard Law School teaches constitutional law, would you let a Harvard M.D. touch you? If so, you have guts. Guts where your brains should be, to be sure, but then, who are we to say today where the guts “should” be? Were we there at the Creation? Think of the implications of medicine as practiced by Drs. Stevens, Souter, Ginsberg, Breyer and Kennedy. Quite a few organs and bodily systems you could just plain ignore; pretend like they are not even there. No such thing as AIDS, because we really don’t recognize the immune system as having relevance in the modern world now that we have conquered all the horrid pandemic diseases. If antibiotics or something are needed, qualified health care professionals can administer them. Just call 911. Other organs you can imbue with all kinds of power. Did you know the gall bladder is the source of circulation, respiration, and hemofiltration? Or it should be, because it is located in an important area. Yep, any problems beating, breathing or filtering get in there after that gall bladder. It casts quite a penumbra over the other organs. Sorry if this approach proves fatal, but we value a body that is socially just, not just survivable.

The analogy is not perfect, of course, but beside the standard of reasoning regularly employed by appellate courts, it is airtight. Remember William Brennan told us that the fact that courts allow so few executions is evidence that the death penalty does not have public support. He also told us that 9 states not having capital punishment proves it has little favor with the people. Anthony Kennedy told us nearly 40 years later that the fact that only 12 states have the death penalty for rape proves it is too, unpopular and unacceptable to the people. So, 9 out of 50 is a consensus, 12 out of 50 is weak support. Constitutional arithmetic is, I guess, similar to constitutional law in its bizarreness, at least in the hands of its esoteric practitioners.

Whence came the notion that the Constitution can mean anything its robed interpreter wants it to, and therefore means nothing at all, is an interesting question but not a terribly pressing one. American judges have a long history of treating acts of legislatures as suggestions they can take or leave. What is of immediate concern is that during the coming regime the First Mulatto President and the Democratic supermajority in the Senate are going to form an unholy alliance to further undermine the Constitution of the Founders by stocking the courts, including the Supreme one, with this breed of bad fish. The tipping of the balance won’t take much—remember that the simple acknowledgement of the Second Amendment’s existence prevailed by only one vote—and not a reliable one—in the recent DC handgun law case. Stripping power from the courts is one of many opportunities missed by 12 years of Republican control of Congress and a 6 year monopoly on federal law making. Obviously, it should have been a major issue in the recent campaign, but voters are simply too unsophisticated to connect the dots between elections and appointments, let alone what judicial review means. Just as the economy is threatened by the public’s mathematical and scientific ignorance, our governance is being destroyed by the people’s political stupidity. Math and science are taught incompetently or not at all. Politics is purposely mis-taught by a socialist cabal called Public School Teachers. So…what?

What first needs to be done is to recapture the language of law, constitutionalism, and English. Conservative and right-wing resistance has to point out at every turn the Leninist use of terminology that misdirects and inverts meaning regarding important political issues.

The first word that needs to be revived from its recent exile in the Constitutional discussion is “amendment”. An amendment is a change to the Constitution. The Constitution says so. The Constitution specifies a process for doing this, i.e. changing the Constitution constitutionally. Ironically, this concept has not caught on in liberal circles or judicial circles generally. If there is just one important element of the document that is most fundamental and has the most devastating consequences in its misapplication it is this one. The idea that the Constitution can be changed by court rulings is simply unconstitutional and counterconstitutional prima facie, as the legalists say. And yet, the activist court courtiers always laud the malfeasant practitioners who will “interpret” into the document phantoms that even they will admit are nowhere to be found in the text or its implications. If this is not amendment, then what is it? Modification? This is starting to sound like California—and that is rarely, if ever, a good thing.

Now, here is the key part. Since the Constitution can only legitimately be changed through the amendment process specified within it, any decisions that the courts have made that are de facto amendments (or sometimes addenda, if you want to get technical—not contradicting the text, but reading into it something that is simply not there) are null and void. Or should be, regardless of the fact that no one with clout admits this or is willing simply to ignore the Court’s rulings that fall into this category (except, to some extent, ol' GWB. He didn’t necessarily budge when the courts said move, figuring that his own lawyers knew at least as much about the Constitution as John Paul Stevens does.) So, the responsibility falls on the Supremes themselves to overrule errors past made by their predecessors who were Ivy League-educated out of intellectual honesty and moral decency . And this why overturning bad Court decisions—e ven ones that are fairly old—is NOT activism— the second bit of terminology that conservatives need to recapture-- as the liberals in their weasly misuse of language often accuse. Wiping out illegitimate precedent is no more activist than removing graffiti is vandalism.