I believe that the majority of you that preside on the bench strive using your best efforts to make determinations, rule and defend your only client, the law.
It is easy to sit on the sidelines in wait to second guess your decisions and then attack the well thought and reasoned rulings you have rendered. It is inevitable that the judgments that you undertake in your function will please only half of the parties placed before you while disappointing the other half. Unenviable therefore is your charge and responsibility and I for one respect the court even though I like many have disagreed with some of its rulings.
Your fidelity is to the law and the Constitution of the Untied States that secures its foundation and defines, binds and limits its power. Laws can be made by righteous men and women with all good intentions of purpose but because they are codified does not make them sound or empowered. The law in and of itself therefore is a living breathing animate animal that grows and procreates itself to an ever larger expanse that has been guilty of cannibalism, despotism, aggression and treachery to its own body let alone the followers under its power. The law on its own without the Constitution to reign in its dominion therefore is corruptible. You as jurists are the both the protectors of the law to insure it is well preserved but equally the master of the law to insure it stays in the enclosed framework of its boundaries and does not overtake the people it serves.
The problem is that there seems to be two schools of thought in your training to become the law’s gatekeeper. One is the “Evolutionist Theory” of the Constitution that believes it should be interpreted in a modern day context and therefore be seen as an expandable document retrofitted to answer the present day conflicts and issues. The Second school of Constitutional interpretation is the “Constitutional Orthodoxy” or now known as “Originalism” which divines to ascertain what the Forefathers intended when writing the Constitution.
Both of these schools of thought therefore start with the premise that interpretation of the Constitution is the goal and objective. Further they have been treating the Constitution as they do the law, a living breathing animated animal.
How can the animal cage the animal? How can the powerless limit the power? How can a changeable parameter define and keep constrained the parameter? How can the moving and changing foundation keep the building sound and erect?
The answer is that it cannot. The Constitution is not an animated document but rather a binding contract. It is a contract like all others that can be amended with the parties involved both consenting and following the terms stated for its amendment. However you might say that all contracts are subject to interpretation and therefore whether it is called a contract or a template it is still subject to interpretation? Reading and understanding the terms of the contract and the noted language in the contract to identify the limits and agreements of consideration by all parties bound by the contract is not interpretation. That which is stated exists and that which is not stated does not exist. That is no more interpretative than saying “I breathe, therefore I am alive.”
Anyone wishing to break a contract combs such contracts for ambiguities, conflicts, exceptions, loopholes, limitations and actions not expressly dealt within the confines of a contract. Poorly written contracts that leave open gaping exceptions to which parties can easily avoid their obligations or contracts so well written and filled with specific and enumerated obligations that always leave contingencies unforeseen to allow escape by one party or the other to the adherence and obligation to the contract are inevitable. They are all flawed to some degree or another as they are written through the imperfections of human beings. There is no such thing as a perfect contract as equally as there is no such thing as a perfect human being.
The Constitution is a contract between the governors and the governed. What becomes so unique about the Constitutional contract is that the governors are the governed and that the governed are the governors. There is no mistaking that those who are in the position of authority are equally in the position of subservience to the governed. Those who are in the position of subservience are equally holding the power of governance. That balance of consideration and power seems to escape those who wish to interpret the meaning of the Constitution. The text speaks for itself adequately and where new or old meaning is searched it effects an abridgement and or breech of the contract.
I cannot with the best lawyer abridge a lawful contract that I willing signed by arguing that the intent for the contract was in my mind for one purpose while the contract binds me to obligations I do not intent to agree. “Ignorance is no escape from the law” or from contracts I freely enter. I can however, request that the other party agree to re-negotiate said contract and make changes or release me from its obligations entirely but only if they agree. In contract disputes both sides need to be represented in order that contracts are upheld or dissolved.
The Constitution can never be dissolved by any in government in charge to uphold her on the side of those governing without the consent of ALL those governed, the People. The Constitution should equally not be breeched, abridged, altered or redefined in its explicit text save for the amendment process clearly defined within its contract. The Constitution did not have the hubris to believe that it could in all instances guard, protect, insure and secure all the rights of the governed by those in governance and created the opportunity for its possible omissions and unforeseen conflicts necessary to amend its scope. There is no flaw in a contract so well written as the Constitution, that it was constructed to recognize and codify its own remedy to imperfection. Equally its remedy by use of Amendment being made so requiring of re-sounding democratic principles so as to not make facile or corruptible the Amendments proposed to itself. Equally the Tenth Amendment to the Bill of Rights made all rights and subjects not spelled out in the Constitution to be expressly granted to the government to be instead expressly remained with the people.
In closing let me say that I have this right as a citizen to express my views despite my lack of expertise as a Constitutional scholar, jurist, lawyer or credentials other than being “but any intelligent American citizen, whether or not he or she is a philosopher”. (Associate Justice Antonin Scalia’s speech at Catholic University of America on October 18, 1996.) In that right I contend that our Constitution has been under siege by both sides, Originalists and Evolutionist trying to interpret rather than read the well worded contract our forefathers framed. In fact for those who camp with the Orginalists sentiment wanting the spirit and intent of the Constitution to be implied by its reading unwittingly give fuel and empowerment to those on the other side (Evolutionists) wishing to alter its meaning by implying a modern day evolvement of its intent.
The Constitution should be applied by text and not interpreted but followed in the script that our forefathers wrangled so fiercely about before signing. The words used and their meaning and definitions at writing are well known and preserved. The word “regulate” and “commerce” are words used by Congress to secure that it has a right to pass laws regarding all measure of commerce in the states. The intention and use of both words by our founding fathers were different than used and interpreted today. They would have used “control” not regulate if they meant to confer powers to the Congress rather than normal maintenance and they would have stated “sale of all American goods foreign or domestic” not commerce if they thought business transactions from one party to another were in the control of the Federal government. The meaning of the words used at the time should be historically preserved and supported with the original interpretations by those whose hands and minds scribed the document.
Any precedent set on an interpretation of intent other than what historical records can show our forefathers authored (Madison, Jefferson, Jay, Hamilton ex.) while and after the Constitution was written by their own explanation of what their text meant is unethical precedent. This document was written by men dedicated to preserving and blueprinting success for a brand new self-governed Nation that the world had yet to try and that remains still today as the world’s shining example of practicable and workable democracy. To all jurists I and most Americans say swear your oath and stop straining your allegiance to THE CONSTITUTION OF THE UNITED STATES OF AMERICA!
No comments:
Post a Comment