The Biggest (A)-Hole In Our Constitution

I have heard Antonin Scalia talk about his judicial philosophy many times, most recently on a 60 Minutes segment.

He is a slippery and charming bastard who often refers to himself as an "Originalist" who is an opponent of the idea of a "living constitution."

Which makes me wonder if the Constitution is in his mind dead.

It also makes me wonder if this "Originalist" has ever read about the origins of the Bill of Rights.

It is a fact lost to most Americans today but the Constitution was originally ratified without those famous first ten Amendments.

This was because many Founders (especially the Federalists like Hamilton) were concerned that the act of enumerating certain rights in the Constitution could later be misconstrued as implying that whatever rights they had not specified, singled out or mentioned did not exist.  In other words - if a certain right isn't specifically defined in the document then you don't have it.  

Like the right to breathe.  Or the right to take a walk on a sunny day.  Or the right to annoyingly baby talk to your cat.

They preferred the English Common Law system which doesn't define or quantify certain rights but rather accepts them as rational, commonsense and tacitly understood.

 

(Side Note - you'd have to go back to Henry II to understand the English system's evolution and how it works but to give you an idea in England even the killing of someone in cold blood isn't defined specifically as a crime.  This either shows us how effective common law is or how polite the English are that they don't need a law to say murder is wrong.  It's just understood to be rude and not terribly helpful.)

Now you'd have to be a real A-hole to interpret the Constitution in such a narrow minded, limited and nitpicky capacity, to actually argue that any right not spelled out does not exist.

I mean really, it would take an A-hole of almost gravity-defying proportion to think along these lines. You'd almost have to be an A-hole so big and so dense you were in danger of collapsing in on yourself like a dying star.

But the Founders were very shrewd and they knew that while history has shown us from time to time we may have droughts, famine or even a dearth of brave and ingenious men, there is never, ever a shortage of assholes.

So because of these fears the Bill of Rights wasn't actually passed until 1791, the third year of Washington's first term.

It was the fulfillment of a promise the founders had to make to the states to get them to ratify the Constitution and centralize authority to the degree that the Federalists were proposing.

Because in order to accept such a radical rethinking (actually a complete overhaul) of the Articles of Confederation the states had exacted promises that a Bill of Rights must be added and added in short order.  

In fact Thomas Jefferson wrote a scathing letter to his protege James Madison (who is considered by many to be the father of the Constitution) about the lack of inclusion of a Bill of Rights.

Eventually it became clear to everyone it was either add a Bill of Rights or no dice on the Constitution making it in the long haul.

So Madison, working as a member of the House of Representatives from Virginia pushed through what eventually became our first 10 Amendments - freedom of speech, freedom of the press, separation of Church and State, the right to bear arms and so on.

Therfore from its very inception the Constitution was already a living document.

This still left the aforementioned problem.  The idea that any right not spelled out did not exist.  

This was solved rather easily by the clever Ninth Amendment which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

So case closed, right?

Wrong.  Enter Antonin Scalia.

His "Originalist" philosophy is exactly what the founding fathers were afraid of.

Contrary to everything history has taught us about the constitution being a living document he sees it as a deceased one, incapable of change no matter what technological, generational or moral evolutions occur in this country.  

According to him we must abide by exactly what was laid down by the Founders in the summer of 1887.

Case closed.

This is so contrary to what the Founders intended it should be laughable.

Obviously the Constitution is a living, vibrant document that must, has to change with society.

About this idea Jefferson once said, "... as we grow older, as a republic you cannot expect a man to wear a boy's jacket."

What a wonderfully succinct way to put it.  Expecting today's society to be ruled by something 18th century men thought up is obviously (excuse the continuation of the metaphor) a poor fit.

In fact, the meager 27 amendments we have added in 200 plus years would probably be rather horrifying to Jefferson.  He would most likely have expected hundreds by now.

He was actually for holding a new Constitutional Convention every 30 years because to paraphrase him - the earth belongs to the living.

In my mind there is no greater argument for a living constitution than what I have just laid out.

However Scalia refuses to see it as thus and governs as if he were a Justice in 1808 instead of 2008.

This brings me to my final point and what I feel should be the 28th Amendment to the Constitution.

Supreme court appointments should no longer be lifetime.  People live too long for this to make sense anymore.

We must accept that when the Constitution was written a man was exceedingly lucky to live to 40.  Now we are faced with a Chief Justice and other Justices who will be on the court until they die in their 70's or 80's, long after their mental capacity has diminished and long after they have the right to rule for a much younger populace.

We should shorten their term to 15-20 years.  This would rid us of the burden of 80 year-olds making decisions that affect all of us long after they are dead.

This would also hopefully ensure a modern understanding of today's society is and would always be reflected by the court.

As a bonus it would also mean it's time for Scalia to retire (and Clarence Thomas).

In my mind that makes the argument - you guessed it - case closed.

A Promise Fulfilled

Thomas Jefferson, a slave owner, wrote this in a hot Philadelphia boarding room 232 years ago.

 

"We hold these truths to be self-evident, that all men are created equal..."

You know the rest.  Life, liberty and the pursuit of happiness - a greatest hits of enlightenment principles cribbed brilliantly from John Locke and others.

We call it the "Declaration of Independence".

But in point of fact it was more than just a simple declaration.  

It was a challenge.

It was a challenge from the New World to the Old which said loudly and clearly that the class system, the entrenched aristocratic order, the lack of opportunity for the ordinary man which had persisted for centuries in Europe would not cross the Atlantic with the colonists. 

That challenge was the beginning of America.

However this beautiful, lyrical assertion of equality was to be followed by over 100 years of slavery, segregation, lynchings, voter suppression, discrimination and other wrongs that continued well into my lifetime.

It was to say the least, a good idea delayed.

 

But last Tuesday something happened.   

Last Tuesday that aged, (some would say withering) 200 years long promise of equality was finally, resoundingly kept.  

I will never, ever forget where I was nor the size of the lump in my throat when I heard the announcer say, "This just in, Barack Obama is now the next President of the United States."

Barack Obama is of course an African-American man.  

I did not vote for him because he was such nor do I think did most people (which may say more about how far we've come than anything). 

No I voted for him for a myriad of reasons - because I got the sense he understands profoundly the deep problems this country is facing, because he seems to be a man of action and yet also quiet thoughtfulness and unhurried deliberation.  Because he appears to be possessed of both the political genius to win a campaign and more importantly the unwavering determination to bring people together once the campaign is over.

I voted for him most of all because I believe I glimpsed in him that rare, Lincoln-esque combination of characteristics so often diametrically opposed to each other - great confidence mixed with even greater humility.

But I cannot deny that in the aftermath of November 4th the fact that he we have finally elected an African-American as President has magnified my esteem and pride for this country tenfold.

Because now and for all time we have shown the World that indeed we meant and still mean what was written in that hopeful declaration those many years ago.

Thomas Jefferson is perhaps still most famous for his authorship of that document.  Yet when he lived he was known for many things.  

For being an incredible writer, a tremendous thinker and most of all an inveterate, incurable optimist.

He was known for his unceasing belief that man is good, that given the right set of circumstances and opportunities a utopian, truly egalitarian society could emerge from the wilderness that was America in 1776.

He was called naive and a dreamer in his day because he dared posit that we could someday establish a more perfect union where no matter how high or low-born one might be they would still have the chance to be something, to be someone, to make a difference, to reach their highest potential for mankind.

I see Obama as proof that Jefferson was right.

It's Here!

Election day is here.  As I write this I'm at the Minneapolis airport in transit between NYC and Seattle.

We will hopefully know where this thing is headed by 4:30 Pacific time.

Right now I'm alternating back in forth between feeling confident that my guy (Obama) will win and being riddled with unbearable anxiety.

I even tried to go over to the Larry Craig bathroom and get a blow job to release some pent up angst but I couldn't find the stupid terminal.

Why am I so nervous?

Because I truly believe a McCain victory would be the death knell for the American middle class.

Also I'm scared his Supreme Court Justice appointments would tilt this country so far to the right I wouldn't be able to recognize it again in my lifetime.

Elections are odd things.

I never feel so powerful and yet so powerless as I do on this day.

Last time I was ebullient early, then filled with disbelief and finally resignation as the night wore on.

This time I hope to be exceedingly, obnoxiously gleeful both early, often and late.

We shall see.

At any rate, the momentary thrill I get casting my ballot makes it all worth it.

I am always filled with pride and thankfulness that I'm a citizen of this country every single time I do it.

We were the first nation, the first people to posit the theory that man was capable of rational self-government.

That Democracy did not necessarily lead to devolution into mob rule.

Europe laughed at us when we began this experiment all those years ago.

But we believed that man was not born beastly in his nature, but is kind, thoughtful and capable of perfection.

Let's hope we prove ourselves right.

ATTENTION WHITE PEOPLE

Barack Obama's First Five Initiatives

(According to an email I just got from the GOP)

1. ATTENTION WHITE PEOPLE  

You have 24 hours to turn over your property to the government.  

This includes any and all jewelry, electronics and personal items worth over 2 dollars American.

You are allowed to keep one toothbrush per family.

2. ATTENTION WHITE PEOPLE  

Square Dancing is now a crime and will result in a $500 fine per do-si-do.  

The Charleston, the Cha-Cha and the Quick Step have also been suspended pending further review.  

3. ATTENTION WHITE PEOPLE  

In order to make-up for slavery you are now required to do one chore per week for a black person.  

Your black chore-master will be assigned on a random basis via lottery on January 21, 2009.  

Chores will begin Wednesday of the following week. 

4. ATTENTION WHITE PEOPLE  

Unless you can backwards tomahawk dunk, playing Basketball is now a Class A Misdemeanor.

This means you, Steve Nash.

 

5. ATTENTION WHITE PEOPLE  

You no longer have a “black friend.”

So stop calling and inviting him to play Squash, watch Jude Law movies and other lame white people shit.

He will contact you when the need arises as you are now his "white friend."

Prayer for the Innocent Dead

Here's a few lines from Dylan Thomas' poem "Ceremony After a Fire Raid".

I saw them on the wall at the British Imperial War Museum.

Myselves
The grievers
Grieve
Among the street burned to tireless death
A child of a few hours
With its kneading mouth
Charred on the black breast of the grave
The mother dug, and its arms full of fires.

This was written in the wake of the German bombings during the Battle of Britain.

It gave me the strongest sense of what an average English citizen must have felt in those bleakest of days.

I suppose (and I can only guess) it must have seemed as though hell was not below them but somehow above, pouring hatred and loss upon all those who were innocent and familiar.

What feeling of powerlessness, what sense of weakness, what unending fear must it have extracted from their souls?

Then when all was said and done, when the sky was quiet and the earth still, what final numbness must it have left them with?

The senselessness of it all, the pulverizing effect on the psyche must have been the worst. 

Again I'm only guessing but that's what I get from the poem.  

Because it reads to me like a man unable to mourn or wail yet again, so as a writer he can only describe what he sees.  

Unemotional but evocative.

His description of death as tireless is the most striking and telling part of the stanza.

It paints a picture of annihilation as a daily visitor, a commonplace thing.  

Mundane like the garbageman or letter-carrier yet also powerful as a God, unstoppable, superhuman and most of all unceasing. 

I sense he is describing something that was beyond their ability to withstand anymore.

It reminded me of 9-11 and the horror of that morning.

Then because I am human first and American second, it made me think of what our (accidental?) bombing of civilians in Iraq and Afghanistan has wrought on the ordinary people of those countries.

I can imagine a beautiful poem about it will be written in their language someday.

I look forward to reading it then.

But for now I look forward to the end of bombing.

Everywhere.