#71 Musings Beyond the Bunker (Sunday June 27)
Happy weekend!
SUPREME COURT STANDARD
I’m increasingly finding myself trying to figure out how the Supreme Court makes decisions and how it should make decisions. At the risk of being taken to task by one of the law professors who gets these Musings, here is my abbreviated analysis of two of the most commonly cited theories:
School of thought #1. The words of the framers must be taken literally (in the sense of the meaning of the words at the time they were written). Decisions should adhere as closely as possible to the language in the Constitution. To do otherwise puts the Court in the position of having to make legislative-type decisions.
School of thought #2. The framers did the best they could with the knowledge they had. The Constitution is a living document that must be interpreted in light of the times, bending it to reflect a reasonable position in light of current facts.
I find neither of these particularly helpful. Instead, I have a different way of looking at things. As a general statement, the proponents of the first theory are incorrect to believe this is simply an question of words and interpretation and they also are disingenuous if they claim that there isn’t legislation going on right now. A perfect example of this is the presumed overturn of Roe v. Wade, giving short shrift to stare decisis. The proponents of the second theory also are wrong. They would like to believe that the Constitution is little more than a document, much like religious texts, that can be manipulated through pretzel-like logic into anything they desire.
The best standard is to consider what the words of the framers were intended to do and then imagine what the framers would have decided if they had access to the information we have. Here are a few examples:
If they knew about weapons that could spit out hundreds of rounds per minute, I doubt they would have equated such weapons as similar to a flintlock or a musket. Forget for a moment that the Second Amendment has been bastardized to ignore the reference to a well-regulated militia. In no way would such a militia ever include such weapons.
If the framers knew that the open carrying of weapons could be used as a tool to intimidate fellow citizens, restricting their first amendment rights to assembly and speech, they likely would have acknowledged the primacy of the first amendment. Indeed, they did, through setting it out first and foremost in the Bill of Rights.
The framers believed in the right of franchise. It was strengthened and reformed through the 15th amendment and the expansion of the vote to women. While the Constitution provides that states are free to govern the manner of their elections, I don’t believe the framers would have accepted the notion that states would be free to impose unreasonable restrictions and constraints on voting rights.
No way would the same people who drafted the fourth amendment ever expect that the confiscation of cell phones and accessing that data would be an acceptable method of policing.
Given their strong sense of individual rights , the resistance to the notion of a State religion, and, the strong libertarian “rugged individualism” of early America, I’m fairly confident the framers would have allowed for gay marriage. After all, the Ninth Amendment clearly provides that rights are vested in individuals, unless reserved to the states or the federal government. It states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
I haven’t a clue what they would have thought about abortion.
THE SEVEN CIRCLES OF HELL
Brad loved Dante. I’m looking at an illustrated version of The Inferno right now. It’s quite a piece of literature, more interesting given it was written in the 14th century.
Dante identifies nine circles of hell. These include: Purgatory, Lust, Gluttony, Greed, Wrath, Heresy, Violence, Fraud and Treachery.
My question is, “If we were to define modern day circles of hell, reserved for the things we think are most disturbing in our world today, what would they be?” Of course, there are the obvious crimes, such as those outlined by Dante. But let’s have fun with this. I’ll start:
The circle reserved for those who don’t pull fully into the intersection when making a left turn, thereby depriving those behind them from making the turn.
Those who pluralize with a possessive apostrophe.
Those who use “you know” “um” and “like” three times (or more!) in each spoken sentence.
The circle for people who can’t say “good morning” when they are similarly greeted on a walk.
The circle for people of means who tip less than 18% (I’d argue for 20-25%, but I’ll take 18% as a working standard, at least for now).
What bothers you enough to reserve a special circle in hell for that behavior?
Have a great day,
Glenn
FROM THE ARCHIVES