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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, September 18, 2014

"Happy Birthday to our Flexible, Popular Constitution"

The point is not about how courts should interpret the Constitution, but that as the composition of the People have changed, so too has their conception of the Constitution and what it means. In practice, among Americans, the meaning of the document itself changes and grows to accommodate changes in life and politics.
Good discussion (I inserted the link found in the original to a good reply to a supporter of "popular constitutionalism" vs. the courts, in part noting the courts continue to be influenced by just that) using the ACS sentiment that I share and reflects the general trend of Justice Souter's remarks posted yesterday. Originalism argues that it is the path to legitimacy. There is a compelling argument that the above view is the true path, especially in regard to self-government -- the Constitution gives "we the people" today the power and responsibility to interpret the document.
When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth. 
It is true enough that the "republic was white and male, by text, tradition, and canonical statute" in various respects, but putting aside the room left for advancement (a logical thing for the age of reason -- Jefferson as I recall even left open that his view on blacks would change with more data), this is a tad exaggerated. Women, e.g., was seen to have a role as "republican mothers" to educate children and serve as helpmates for their husbands. This would provide significance influence. Besides, non-slave women were counted fully for taxes and representatives, had rights comparable to men when arrested and so forth.  The room for advancement is a particular charm of the Constitution, a reason it retains popularity.

It is noted that the document has many offensive measures,* but they repeatedly reflected society at the time, while having others that the "outs" could use for their advancement. The link provided above, e.g., noted blacks as a whole did not share the beliefs of certain "progressives" in the early part of the 20th Century to downplay rights. Blacks had no immediate likelihood of gaining much political power and saw a need for things that needed to be protected and protected with a certain sacred character, from majority will.  Rights were not mere impediments, even if they might at times be used badly. The right (ha) thing to do was to convince society and/or certain institutions thereof (e.g., the courts) of how to do it.

It's useful to study history (I myself did formally and informally), including the original and historical understanding of various constitutional doctrines. This can often get you to liberal destinations, especially if you play your hand the right way (the prime example might be Brown v. Bd.) since there often isn't one clear path.  But, ultimately, we ourselves today have to apply things. This applies to religion (so debates over, e.g., what Jesus says about homosexuality to me are dubious on more than one level) and this too.


* It is noted, e.g., technically the Fugitive Slave Clause is still active since that the 13A does allow involuntary servitude for those duly convicted of a crime.  The 13A would guard against any sort of illegitimate slavery or involuntary servitude but "service or labor" might mean more.

BTW, looking at a pocket Constitution, it is spelled "Labour" though not in all locations.  Capitalization for some hyper-concerned types might matter given what that might imply. Noted a little while back, I believe, some of the capitalization in the Declaration of Independence is a result of editing done by the publishers. The original Constitution's phrasing was greatly influenced by the Committee of Style and Arrangement, whose edited draft largely given the lateness of the day is mostly what we have today. It is unclear how much the exact wording should matter as compared to the overall material they worked with but said wording is given special value. This includes splitting hairs on the importance of certain words and at times punctuation (e.g., the Tax Clause or the 2A). 

Is it also notable that the original text of this clause had British spelling?! 

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