(If you haven’t read the preceding Parts, they are:
I know, it’s a lot of reading to catch up to this post, but I promise there’ll be no quiz at the end. And perhaps, on this July 4, 2023 weekend maybe you owe it to yourself as an informed citizen to read stuff like this and constructively engage. The cost of not being an informed, thoughtful citizen to too much to contemplate. That said, on with the show!)
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
U.S. Const., Article VI
Let’s face it, the framers who wrote a sometimes ambiguous document had a fair amount of cheek declaring it to be the “supreme” law of the land. But then, they had just declared and won their independence from the strongest power on earth, so maybe they’re entitled to a little boast.
It’s worth remembering that save for a few of the delegates to the convention, (James Madison is one who first leaps to mind) the prime purpose of the Philadelphia convention was to repair the hopelessly unworkable Articles of Confederation. Evidently the only way to repair the Articles was to scrap them and start from scratch.
And we shouldn’t lose sight of the reason the framers wrote the Constitution. They were confronting a serious political problem that needed to be solved. They were living in a country where each state pursued its individual policies at the expense of the others. Money bordered on being valueless.
The confederal government was so weak that it couldn’t muster troops to put down a group of rebellious farmers in Massachusetts. If attacked by other countries, there was no capacity for the confederal government to compel states to send militias to repel any attack.
In short, after only a few years in existence, this new nation was on the precipice of failure.
Enter the framers. They were experienced politicians, wealthy financiers, former military leaders, intellectuals, attorneys, and successful farmers. Put more succinctly, they were the elites of their age. As I said in an earlier post, individually and collectively they were not touched or inspired by the hand of God. They were practical men of great experience with a very defined problem and a shared history of what failed.
Over the summer months of 1787, they put together a governing framework that serves us to this day. At the heart of this framework was the allocation of powers between three branches, the expectation being that the branches would provide sufficient checks and balances to prevent any one branch from accruing too much power.
Although the Constitution was long on framework and allocation of powers, it was short on guarantees of individual rights and liberties. These omissions stirred great controversy during the ratification process, so much so that it was a priority of the First Congress to address these omissions.
Since 1787, perhaps even before the ink had dried, lawyers, scholars, judges and pundits have consistently argued over two things: what does the Constitution mean and how does it apply to our lives in 2023? Those are vital questions because our lives in 2023 are well beyond the imagining of the framers slogging through their tasks during a sweltering Philadelphia summer.
Part of the problem is that the body is written in specific language but its application of that language is often ambiguous in its application to changing conditions. For example, what does the commerce clause mean? Clearly it applies to the sale and transport of goods and services between states. But if that’s the case, then what is the dormant commerce clause? That, simply stated, is when a state enacts legislation that discriminates against or excessively burdens interstate commerce. So where in the Constitution can we find the dormant commerce clause? We can’t, it’s implied.
My commerce clause example reflects the changing nature of commerce as the nation grew. The commerce clause didn’t change, just its application. What’s important is that the principle behind the words can be applied to changing realities.
Compared to the body of the Constitution, the first ten amendments, the Bill of Rights, are models of clarity - sort of. For instance, when the First Amendment says “Congress shall make no law” regarding speech, religion, etc., that seems pretty clear about what Congress is prohibited from doing, but less clear is what speech, religion, etc., are. Does speech include obscene speech? The short answer is “no.” But then what exactly is obscene speech? Over the years the Court has labored to define obscene speech. But even when the Court can only craft a mushy definition of obscenity, it’s application is thwarted when used in a specific case placed before it. That left Justice Stewart to comment that he‘d know it when he saw it. As of this writing there’s little evidence that he ever saw it.
In situations where the legal profession, not to say our communities, could use the clarity of an objective standard, we often end up with the murky subjective standard resembling the approach of Justice Stewart.
For the most part the language contained in the first ten amendments is pretty clear. The application of that language to real situations is what’s up for grabs.
If there’s an outlier to this clarity of language and underlying principles in the first ten amendments, it’s the Second Amendment (“2A”). At first blush, it’s a bit of a mess. Maybe even at second blush.
Until Heller in 2008, this stilted amendment was understood to relate to the maintenance of state militias (see, United States v. Miller, 307 U.S. 174 (1939)). Apparently the Miller Court looked into the genesis of the 2A and found what I found. In 2008, Justice Scalia either was out of his mind or had a preexisting agenda. Either way, in Heller, he ignored some parts of the 2A altogether, overtly dismissed others, until he could torture language so much that he had no other choice but to find that Dick Heller had a constitutionally protected “right” to possess a firearm in his own home located in southeast District of Columbia.
Heller was a wholly manufactured case devised by the Cato Institute, a rightwing “think tank” and advocacy organization. Because the Constitution applies only to the federal government, this newly discovered individual right did not apply to the states. So it was left to Justice Alito in McDonald, using the incorporation process under the 14th Amendment, to apply this constitutional individual “right” to the states. Once that was accomplished, the way was clear for Justice Thomas through Bruen to strike down a long-standing New York State policy regulating concealed carried firearms. No doubt as long as this line of cases remain intact there will be more to come.
These cases are not the holy trinity of the legal profession. These are the major cases that have transformed our country from being the land of the free to being the land of the quick and the dead.
Through July 1, 2023, there have been 338 mass shootings in our country. On July 2, we received the news that there were at least 2 people killed, 28 people injured, some critically so, in Baltimore. All these people did was attend an annual holiday neighborhood block party.
By way of contrast, Serbia, SERBIA!, a nation with third highest per capita firearms ownership in the world, recently experienced two mass shootings on two successive days. In response, the Serbian government acted, according to the Guardian, “A mere day after these senseless shootings, Vucic announced several measures that would prevent further tragedy. The measures include a ban on new gun permits, tougher penalties for illegal weapons possession, psychological checks of gun owners and an amnesty for the surrender of illegal weapons.” In other reports, within days of the shootings and the imposition of these measures, 6000 firearms were voluntarily surrendered to the authorities.
The contrast between the United State and Serbia, at least on this one issue, couldn’t be more stark.
I began this series of posts writing about Bruce Springsteen’s “Murder Incorporated,” a depiction of the fear and violence that too often define our times. I then morphed into an analysis of gun reform legislation then being considered in the Rhode Island General Assembly. I focused on a couple of the pro-2A groups and their opposition to the numerous gun reform legislation. One group tried to use the Bruen decision as a cudgel to influence the legislators to abandon the attempts at reform.
Whether these pro-gun lobbyists were successful or whether the legislators were risk averse to controversy, not one of the substantive bills were reported out of committees to the full chambers for an up or down vote. And because next year is an election year, it’s nearly impossible to see the state legislature doing anything “controversial.”
In order to change our policies, we first have to call out the current state of the law for what it is - an abomination to the Constitution. Heller was a contrived case. Without the recruitment efforts of Cato, it’s questionable whether an actual case in controversy, as required most definitely by Article III, would have existed.
But as we have seen the last day of this 2023 Court term, a case was decided where the facts were verifiably non-extant (thus no case in controversy existed), on grounds never argued in the pleadings, that effectively - at least on a limited basis, TBD - will permit a level of discrimination against a protected group. It appears that the requirements of Article III are more like guidelines. The Supremes seem to think they can issue an advisory opinion having the force of law.
We ignore these issues at our peril. In a democracy, we are a nation of laws, not of men, and certainly not of whimsy. These cases have broad and profound impacts on the everyday lives of ordinary people. And this is just one area of law, others that curtail the rights of half our population, how the rules are made that implements our statutes, voting rights, economic inequality, and affirmative action either directly or indirectly effect us all. And don’t get me started about Citizens United.
We are citizens in the oldest continuous democracy in the world. We are heirs from an experiment began long ago and continues to exist to this day. Yes there are problems. Yes there are challenges. Yes, there have been and will be failures. And yes, people have given their treasures, their careers, and even their very lives in service to ensuring and perpetuating a great ideal.
Yes we will disagree. And yes, each of us will win some, lose some, and even break even sometimes. But one thing is clear, no matter what tribe we’re in, or whether we’re in any tribe at all, we must not ever let others do our thinking for us. Being a citizen in a democracy is hard work but it’s work that must be done if we’re going to make thing a little better for those who come after us.
HAPPY FOURTH OF JULY!!!!
Comments