Liberal judges love to say that the US Constitution is a "living document." Of course, by that they mean that the Constitution can mean anything they want it to mean. "Strict Constructionists" are quickly labeled as bigots or far right reactionaries. Perhaps the most amazing comment on the Constitution (up to that time) was in 1989 when Thurgood Marshall said that the hoopla over the celebration of the Constitution's 200th anniversary was overblown -- that it was an imperfect, even racist, document. Amazingly, this justice, who had to swear to uphold the Constitution in order to become a judge, blatantly admitted that it meant nothing to him. To me, that was an impeachable offense.
Recently, Marshall's best protegee, Ruth Bader Ginsburg, defended her use of "international law" in making Supreme Court decisions. If a justice had said such a thing before 1950, he (there were no "she" justices then) would have been subject to a bipartisan impeachment.
However, if we understand the liberal mind set, we realize that there is no way that a liberal can, in good conscience, uphold the document anyway. Moreover, liberals are not the only ones who butcher the Constitution. It has suffered over the years under the adminstrations of both liberals and conservatives. Most of the abuse is through misuse. It is my premise that the Constitution has lost more of its force through disuse than through abuse. This document is being destroyed by atrophy.
People derided Texas governor Rick Perry this past week for his statements about the Tenth Amendment and states' rights. I remember 1976 when Jimmy Carter stood in a pulpit of a Black Baptist church in the South and told them that Gerald Ford favored states' rights, which would mean a return to the slavery mind set, answered by a thundering of "amens." I've wondered how that church kept its tax exemption. One church nearly lost its exemption that year just because Ford attended and the pastor shook his hand. But again, I digress.
States' rights is not open for debate. It is the Tenth Amendment. It states that all powers not expressly given to the Federal government belong to the states. That should make it easy for the Supreme Court: if the power is not mentioned in the Prime Document, then the Federal Government does not have it. Somehow, the Supreme Court has never figured it out.
Go back to 1850, when congress passed the "Fugitive Slave Law." Before that law, all those slaves in the evil South could just go to the loving North and be free (according to revisionist history). The 1850 law made it possible for a southern slave owner to recover his lost "property" from a northern state, utilizing the help of federal troops, if necessary. Realize that this decision was made by a congress that was dominated by northern legislators -- the ones that history paints as "abolitionist." So, if a slave escaped from Kentucky to Ohio, he wasn't free. The state of Ohio was required to return that slave.
This law should have been overturned, because it overruled state sovereignty. There was no Federal power given by the Constitution to take a slave from a free state and return him to a slave holder. A simple review by the Supreme Court should have nipped the law in the bud, yet it was allowed to fester for the next eleven years, leading to the Civil War. Of course, this was the same Supreme Court that handed down the "Dred Scott Decision," which overlooked Constitutional guarantees of human rights, and told a slave, in effect, that he did not have a right to present his argument, since, according to them, he was not a human being.
Let's go farther afield. If the Supreme Court had ruled on the secession of South Carolina, there might not have been a Civil War, since there is nothing in the Constitution that gives the Federal Government the right to retain individual, sovereign states. Lincoln would have had no authority to organize troops to re-take the state, or the others that followed. Rulings would have been made about compensation for federally funded property, such as Fort Sumter.
One of the greatest myths about the Civil War is that it was all about slavery. While any historian would acknowledge that slavery was one contributing factor, no one has found any public mention of slavery by Lincoln until 1862. Missouri, Kentucky, and Maryland were all slave states that fought for the North (though Kentucky had a shadow Confederate government). When Lee handed his sword to Grant at Appomattox Court House, Virginia, a man who had no slaves handed his sword to a man who had at least six. Grant fought the whole war as a slave holder. But we don't like to think about that.
If the Supreme Court had merely used the Constitution instead of personal whim, the slavery issue would have been settled in the North and the South, and would never have been an issue. If the Supreme Court had used the Constitution in the secession issue, a war could have been avoided. Slavery was already on the way out in 1850, and was a doomed institution. Through the influence of education, churches, and plain American decency, the institution was losing adherents daily. The Confederacy's constitution only mentions slavery once, and that is to prohibit the foreign slave trade. The evil institution would have died.
In 1896, a northern controlled Supreme Court ruled in "Plessy v Ferguson" that "separate but equal" was in the Constitution. I've re-read it enough that I can tell you that it's simply not there. "Brown v the Board of Education" in 1956 rightly reversed the idiotic decision of 1896. All they would have had to do is read the Constitution.
I've spoken of Roe v Wade in earlier posts. All that needs to be repeated here is that we know from the Declaration of Independence what the mind set of the framers of the later Constitution was: there was a right to "life, liberty, and the pursuit of happiness." There is a right to life implied in the Constitution, as well as an amendment that says no one can be denied "life, liberty, or property" without "due process of law." The flawed Supreme Court decision somehow found a "right to privacy" implied somewhere, and based the weight of their decision on that premise. In doing that, they used the "Dred Scott Decision" mentality by deciding that a child not yet born was not a human being. Then, the Supreme Court imposed their abortion decision on all the states in the Union, in spite of the 10th Amendment and the fact that the Constitution nowhere gives the Federal Government the power over decisions on the medical termination of a pregnancy. The "Roe" decision not only overruled all the "pro-life" states, but also swept away the "pro choice" states' laws, and imposed one monolithic rule that has become the basis of practice and funding.
Recently, congress has decided that the District of Columbia needs a voting congressional representative. The Constitution says they don't. Within the last decade or so, an amendment was presented to give DC the "rights" of statehood in congressional and senatorial representation. As repugnant as that is to me, if the amendment had been passed by 2/3 of state legislatures, it would be the constitutional law of the land. That amendment died. This time, the Constitution is being ignored. It seems that no one even cares. Just vote in a new representative from DC. The Supreme Court probably will not even touch it.
Finally, I look at GM. Bad management? Yes. Sorry product? In the past several years, sadly, yes (though their new Malibus are great). Should the CEO have been fired? Most likely. By the Federal Government? No way! It is no personal reflection on our new president. If my favorite president of all time, Ronald Reagan, had fired the president of General Motors or any other company, I would have cried "foul!" Where in the constitution is the Executive branch given the power over corporations?
Those who hate our Constitution, and in the past two centuries, some have even been legislators and Supreme Court justices, have realized that the document is just made stronger when you wrestle with it. You can weaken it with narrow, specific amendments, but that's way too expensive and time consuming. No, the best way to do it is just to ignore it, to let it atrophy through disuse.
Since January, I've seen next to nothing done in accordance with the Founding Document of our nation. We are straining a gnat and swallowing a camel -- the chief justice and the president flub up the inaugural oath, so they re-do it later to make sure it "takes," despite the fact that nothing in the world could have denied Mr. Obama his full rights and privileges as the duly elected president of the US. What needs to be examined is the huge influx of money into banks and stupid mortgages, and trillions of dollars that are being spent in the name of "stimulus" even though it's just more socialistic spending. There is no constitutional provision for Federal participation in public school education, health care insurance, or "fairness" in broadcasting. So we just ignore the Constitution.
Texas will not secede. I'm 99% sure. But if we do, I have a favor to ask of Congress. May we have your constitution, since you don't use it any more?