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It Depends On Whose Ox Is Being Shot

It's rare that I get to argue with the conclusions of a Harvard Law School professor about Constitutional matters, but I think this time I am on solid ground -- largely because I don't have years and years of formal education and training to get in the way of simple reading comprehension and common sense, two things apparently taught right out of Dr. Cass Sunstein's head.

In talking about the Supreme Court ruling on the 2nd Amendment, Dr. Sunstein says the following:

This is a stunning development - and a dramatic departure from how the Constitution has long been understood. Despite the court's emphasis on constitutional text and history, its 5-4 decision yesterday in the District of Columbia gun control case reveals a much broader point: Constitutional change often comes from the efforts of energetic political movements, of which the movement for gun rights is merely one example.

I'm sorry, but just when did "Constitutional change coming from energetic political movements" become something new? It's been around for a long time, and a rallying point for strict constructionists (those heretics who argue that the Constitution means what it says, and not what folks wish it to say). The most flagrant example would have to be Roe V. Wade, which struck down abortion bans across the nation. In their reasoning for their verdict, the justices invented (I'm sorry, "discovered") a whole field of rights that had been utterly ignored for almost two centuries, hiding in the "penumbra" of the Bill of Rights. And it was a political movement that got that case before the Justices, and a political movement that won it.

More recently, political pressures were behind the infamous Kelo case, when a city argued that "taking for the public good" could mean "taking from private citizens and giving it to private industry," and "public use" could mean "private ownership" when the city of New London, Connecticut, decided that some folks' rights to keep their homes was less important than giving a pharmaceutical company land to build a new factory.

The good professor goes on to cite a long list of major Supreme Court rulings on the Constitution, all quite educational -- but largely irrelevant to the matter at hand. But, at the end, we have the conclusion:

There is a still larger lesson here. Though the Constitution has governed the nation for well over two centuries, its meaning is not stable over time. In 1970, the Constitution did not mean what it meant in 1950. In 2008, the Constitution is quite different from what it was in 1988 - and in 2028, we will probably be in for some major surprises.

Even when the court purports to speak for the original understanding of the Constitution, it is usually responsive not only to people long dead, but also to those now living.

CURSE those Founding Fathers. They should have REALIZED that as times change, so will people. They should have known that society would evolve in new and unexpected ways, and what worked fine in 1787 might not hold up in 50, 100, 200, or even 221 years. Thank heavens we have fine, legal scholars like Dr. Sunstein and oustanding jurists like Justices Stevens and Ginsberg to help us look beyond the actual words and see the ideas, the sentiments, the principles behind them -- and interpret them for our brave new world. Why, without them, we would be utterly hidebound to that ancient, hoary scrap of parchment and the words of a bunch of dead white males, without hope of ever making it work today.

Whoops, my bad. It turns out we might just be able to do that on our own after all.

Perhaps someone should show Professor Sunstein a copy of the Constitution that actually contains Article Five, and mention how it's been used a total of 18 times in our history?

Just be careful when presenting it. Academics like that are notoriously sensitive.

(Dang, link fixed. Thanks, conservachef)


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Comments (25)

Now that the Supreme Court ... (Below threshold)
TENNESSEE:

Now that the Supreme Court Justices have got up to third grade level and realize that "The right of the people to bear arms shall not be infringed" means we can have a gun, maybe we can convince them that the "pursuit of happiness" for some people, is watching a good rooster fight.

That people such as this pr... (Below threshold)
Zelsdorf Ragshaft III:

That people such as this professor (?) teach law is a travesty. The meaning of the Constitution does not change. It is written in plain english for those who adhere to it for law and guidance to understand. The framers never intended for the courts to interpret the constitution. There intention was to interpret law to see if it fit within the confines of the Consitution. What part of "shall not be infringed" is ambiguous?

The Messiah taught constitu... (Below threshold)
CODEKEYGUY:

The Messiah taught constitutional law, didn't He? He must have learned his constitution from Sunstein, since He doesn't seem to understand it either. However, He does "ebb and flow" just like "His" constitution.
(Is my bias showing???)

The Founding Fathers accept... (Below threshold)
DaveD:

The Founding Fathers accepted that The Constitution can be changed. I think clowns like this professor are simply put off by the fact The Founders made it so difficult to so. Tough luck that. It is obviously frustrating that these "people long dead" still have such an influence over what is still "left" of the checks on government authority in this our much more enlightened times.

Another Ivory Tower liberal... (Below threshold)
GarandFan:

Another Ivory Tower liberal with a title and not enough sense to keep from pissing on his own feet.

Jay,Your "whoops m... (Below threshold)
Conservachef:

Jay,

Your "whoops my bad" link is off. At least, it is for me. (both netscape and firefox)

There are plenty of people ... (Below threshold)
bill-tb:

There are plenty of people who can't read in America, the drive by media depend on it.

CURSE those Founding Fat... (Below threshold)
Brian:

CURSE those Founding Fathers. They should have REALIZED that as times change, so will people. They should have known that society would evolve in new and unexpected ways, and what worked fine in 1787 might not hold up in 50, 100, 200, or even 221 years.

Uh, actually, they did. As Hamilton wrote in Federalist 78:

A constitution... belongs to [judges] to ascertain its meaning.

Thank heavens we have fine, legal scholars like Dr. Sunstein and oustanding jurists like Justices Stevens and Ginsberg to help us look beyond the actual words and see the ideas, the sentiments, the principles behind them

And Hamilton, don't forget Hamilton:

...the intention of the people [ought to be preferred] to the intention of their agents.

We all understand that you disagree with some SCOTUS opinions, Jay. However, your constant fusing of the notions of interpreting what's written and the amendment process repeatedly weakens your arguments and shows you to not really take the issues seriously.

The framers never intend... (Below threshold)
Brian:

The framers never intended for the courts to interpret the constitution.

So tell us, what does, "A constitution... belongs to [judges] to ascertain its meaning" mean to you?

The Founding Fathers accepted that The Constitution can be changed.

And they also accepted that its meaning can be "ascertained" without requiring a formal change.

DJ, there's a reason that i... (Below threshold)
Luke:

DJ, there's a reason that idiots like you shouldn't attempt criticism of constitutional law professors: you don't know your ass from a hole in the ground when it comes to the law. Leave it to conservative constitutional scholars.

1) Sunstein wasn't making a new point. He was stating something that conservatives have always said, and which you reinforce in your post: political movements can change how the constitution is interpreted. His point is that the Court of Appeals circuits have almost uniformly held that the right to bear arms was a collective right since the 1939 Miller decision. His point is that to get to where the Supreme Court got to in its Heller decision, you have to overrule the established precedent. I'm not intending to defend Sunstein's underlying premise that the Heller decision is incorrect, I'm simply reminding you of what he himself calls his "broader point." The point is that now conservative justices are selecting an interpretation that is different from the interpretation set forth in prior decisions. It's completely stunning to me that you don't even seem to comprehend your own criticism. Sunstein is saying that conservatives rail against changing interpretations of constitutional law when the decisions conflict with their own political or moral viewpoint, but then believe it's ok when a decision changes established precedent to conform with what many people believe to be the correct interpretation from the conservative standpoint. Which brings me to

2) What part of "Congress shall make no law... abridging the freedom of speech" in the First Amendment could possibly be less clear? Does that mean I have the right to incite violence against others? Does that mean that, if I have a cult of followers, I can freely advocate the violent overthrow of our constitution? Does it? No. That's because the constitution must be interpreted. Just because you think language is clear doesn't mean that it is. The second amendment is much less clear than "Congress shall make NO LAW..."

3) The right to bear arms could have been seen by the Founding Fathers as EITHER a collective or individual right. See http://www.us.oup.com/us/catalog/general/subject/?view=usa&ci=9780195147865 and http://www.independent.org/publications/books/book_summary.asp?bookID=72 (simple Google search - sorry about no hyperlinks). The point is that this issue can go either way. Isn't that what the Supreme Court is supposed to do?

4) There are arguments for and against strict interpretation of the constitution to conform with the original intent of the Founding Fathers. James Madison was famously in favor of original intent. But the preamble of the Committee of Detail at the Constitutional Convention (the preamble describes what the Founders were doing in writing the constitution) states: the constitution's purpose is to "insert principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events." The Founders signed onto a document drafted under these principles. How do you address that? How? Tell me.

Sorry DJ. I meant Jay.... (Below threshold)
Luke:

Sorry DJ. I meant Jay.

So now that we have verifie... (Below threshold)
Dave W:

So now that we have verified the constitutionality of a part of the constitution, what now? Do we figure out what other rights in the constitution we should strip away? How about the right to liberty? Oh, thats contained in the global warming movement! How about the right to free speech? Oh, better not dissent about global warming, i'm just an outlier and a denier! How about stripping away some other fundamental rights? Obviously when the 2nd amendment has to be ruled on pertaining to the constitutionality of it, there is something seriously wrong here. it's a part of the damn constitution! read it souter, ginsberg etc!

Im running for President! r... (Below threshold)
JAP:

Im running for President! resume: Love My country..

A constitution... belong... (Below threshold)
James Cloninger:

A constitution... belongs to [judges] to ascertain its meaning.

Context helps:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

In 2008, the Constituti... (Below threshold)
James Cloninger:

In 2008, the Constitution is quite different from what it was in 1988

Yeah, by one amendment, the 27th:

"No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

In other words, no pay raises until the elections are over!

It still required state ratification, not judicial fiat.

The two reasons a democrat ... (Below threshold)
Scrapiron:

The two reasons a democrat doesn't like 'the people' having a right to possess firearms is it puts a roadblock on their road to socialism/communism. First rule of a dictator, disarm the people. And like a lot of others they see a civil war coming and they know 'who' will be the object in the sights of many a firearm.

But the preamble of the ... (Below threshold)
James Cloninger:

But the preamble of the Committee of Detail at the Constitutional Convention (the preamble describes what the Founders were doing in writing the constitution) states: the constitution's purpose is to "insert principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events." The Founders signed onto a document drafted under these principles. How do you address that? How? Tell me.

Because the Founders provided a specific way to "accomdate to times and events", namely, Article 5 of the Constitution, to wit:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.


"There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. ... I doubt to whether any other Convention we can obtain, may be able to make a better Constitution. ... It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies..."--Benjamin Franklin

the constitution's purpo... (Below threshold)
James Cloninger:

the constitution's purpose is to "insert principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events."

Firstly, the original quote is "Insert ESSENTIAL principles only"..funny you ommited this rather important word from your quote. Perhaps you reread Farrand's again.

Secondly, this phrase falls under Edmund Randolphs "Draft Sketch of the Constitution". You understand the principle of draft, that a draft is subject to change. This was Randolphs views of the Draft, which may or may not have been shared by others.

And yes, I have the book...... (Below threshold)
James Cloninger:

And yes, I have the book...the quote is on page 276 or 277, I believe.

Sorry, my mistake...page 18... (Below threshold)
James Cloninger:

Sorry, my mistake...page 183 (I was looking up another article at the time)

EDMUND RANDOLPH: DRAFT SKETCH OF THE CONSTITUTION

In the draught of the Constitution, two things deserve attention:
1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
2. To use simple language...


One delegate's view.

Oh, and in an ironic turn o... (Below threshold)
James Cloninger:

Oh, and in an ironic turn of events, Randolph initially refused to sign the final Virgina Plan 15 resolutions, perceiving an insufficient method of checks and balances, but nevertheless eventually signed on in order to keep Virginia from being shut out of the new government.

James, I knew some astute p... (Below threshold)
Luke:

James, I knew some astute person might catch onto what I was saying, and so I did not overreach. As you know from reading the book, Edmund Randolph was instrumental in helping to draft the constitution.

One of my points is that I find it hard to conceive that all the other Founders would have signed onto a document drafted under auspices, set forth in plain language in the preamble to the draft, with which they did not agree.

Secondly, John Marshall and Thomas Jefferson believed that the constitution should be interpreted in a way that would allow the enduring principles it sets forth to conform to the realities of the time. While the provisions can't be molded to fit whatever outcome is expedient, the constitution was not drafted as clear statutory text that spells out its precise meaning.

Besides, one of the famous arguments against strict interpretation is that it turns judges into historians. Are judges good historians? How are we supposed to know what the Founders thought for certain? We can know in many instances, and their words shed great light on some meanings. But other areas are more grey. Like the Second Amendment.

The bottom line is that reasonable minds can differ and anyone who argues to the contrary, as if strict interpretation is CLEARLY what the Founders wanted, is wrong.

The two reasons a democr... (Below threshold)
Luke:

The two reasons a democrat doesn't like 'the people' having a right to possess firearms is it puts a roadblock on their road to socialism/communism. First rule of a dictator, disarm the people. And like a lot of others they see a civil war coming and they know 'who' will be the object in the sights of many a firearm.

Holy crap. Are you for real? Are you serious? Get back into your bunker.

Take notice conservatives. Next time you criticize liberals for being hateful, or speaking of violence toward others, remember where you read Scrapiron's comment. Talking about a civil war coming soon to a neighborhood near you and speaking with certainty that democrats will be killed?

I want to see some comments on here slamming this piece of shit. I want to see some outrage, or at least some mild indignity. Step up to the plate.

Luke, besides trying to imp... (Below threshold)
WildWillie:

Luke, besides trying to impress us with your great wisdom and intelligience, how can you possibly see the divisions in this country healing? I have been around for quite some time, and I have seen incrementally the hate in this country just grow unabated. Neither side listens to the other. Blacks hate whites and are taught to do so at an early age by people like Rev.Wright. On it goes. Where do you think it is heading oh great one? ww

Blacks hate whites and ... (Below threshold)
Les Nessman:

Blacks hate whites and are taught to do so at an early age by people like Rev.Wright.

Well, I think it's a little more, dare I say, nuanced than that. Some blacks are taught that, just are some whites are taught to hate blacks.
The difference is, the kkk-type white racists are almost univerally scorned and shunned by the overwhelming majority of whites, blacks, libs, conservatives, MSM etc..
But the Rev.Wright-type black racists are....pretty much given a pass. The contortions that many in mainstream society goes thru to excuse this racism is sickening. I think many of the beard-pulling liberals who hem and haw about black racist are actually racist against blacks themselves. I think many of the libs think blacks are so inferior that they can't make intelligent decisions without white people 'helping' them.
All that plus the double standard of 'affirmative action', separate black awards, separate Congressional black caucus, people walking on eggshells because they're afraid of being called 'racist', etc, etc...all add up to a rift between blacks and everyone else.
I'm not sure if this rift is getting better or not.




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