Overstepping Bounds & Constitutional Conventions

November 23, 2010

This past week, United States Supreme Court Justice Antonin Scalia spoke at the University of Richmond about originalism (the method of Constitutional interpretation he subscribes to, in which the language of the document is given its most literal meaning).

In Justice Scalia’s opinion, the Founders of this country spoke very clearly through their Constitution and it’s not up to us to re-found America or its laws; rather, our task as citizens is to uphold those original Constitutional values and live according to them. Treating the document as something living and changeable, Justice Scalia said, allows “five out of nine hotshot lawyers to run the country” (presumably by arguing for whatever whimsical interpretation of the Constitution most fits the momentary needs of their client).

Justice Scalia also criticized the broadening interpretation of the 14th Amendment’s due process clause, which guarantees access to the process of law (courts, judges and the like). Lately, he says, that clause has been expanded well beyond its intended scope to guarantee particular freedoms, though it was never meant by the Founders to be a guarantee of liberties; only a guarantee that liberties wouldn’t be taken without some kind of legal process.

Messrs. Washington, Jefferson and Adams lived in a world in which the English monarch could confiscate their lands and holdings at will; they wanted their new government, should a similar need to confiscate arise, to at least be accountable to some fair judicial process, pre-confiscation, wherein the owner of requisitioned things could plead his case against the requisitioning.

Specifically, Justice Scalia spoke against the applicability of the due process clause being enlarged to fit abortion. In his opinion, the clause doesn’t guarantee the freedom to have abortions… only the freedom to not be deprived of them without due process. Implicitly, then, people can be deprived of the freedom to have abortions so long as the deprived have their day in court first. Justices should uphold the original meaning of the Founders’ Constitution, Justice Scalia believes; they shouldn’t take it upon themselves to issue rulings which extend its reach to areas it was never intended to reach, or which force parts of it to perform functions they were never intended to.

People do, and probably always will, disagree with Justice Scalia. They argue that judges can’t rely on the intent of the Founders in coming to conclusions because their intent is almost impossible to guess at. They lived centuries ago, in a world very different from ours. Plus, a good number of words and grammatical constructions don’t have the same meaning today as they did in 1776.

Still, there is one intention of theirs which is very clear today, and which is easily identifiable because it’s set down in all of our founding documents and is one of the most essential tenets of our government: there are three branches of government and they operate independently of each other, so that any one might check and balance the other two. No one branch was meant to have more power than another. Revolutionary Americans fought a war to throw off one monarch, and they meant for their founding documents to guard them against any one branch of their new government taking too much power and becoming a new monarchy.

In that regard, Justice Scalia, politically correct or not, is absolutely right. It is not for one branch of government to do another’s job. If there is one founding intent we can be sure of, it’s that government is limited in this regard: each branch does its own work, and nobody else’s. And extending the reach of the Constitution, when and if necessary, is not the judicial branch’s job.

Are there likely some things in our founding papers which are outdated? Probably. Provisions dealing with African-Americans and women come to mind most quickly. Are there some portions of our Constitution which should be changed or made more modern? There probably are, which is why that document includes a mechanism for revision: the Constitutional amendment… not the courts.

It’s possible that the particulars of the Constitution (though never its core ideals) have to change and adapt over time to address “advances” in culture and technology. What is equally apparent is that, when it comes to how those changes are effected, Justice Scalia is dead-on: it’s not the courts’ job to make them. That task belongs to the legislature, and to the citizens of this country. If the Founders were clear about anything, it’s that.

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In Decline, Graciously

July 2, 2010

Via The New York Times:

Satisfaction with our national progress should not make us forget its authors: the very Protestant elite that founded and long dominated our nation’s institutions of higher education and government, including the Supreme Court.

Unlike almost every other dominant ethnic, racial or religious group in world history, white Protestants have ceded their socioeconomic power by hewing voluntarily to the values of merit and inclusion, values now shared broadly by Americans of different backgrounds. The decline of the Protestant elite is actually its greatest triumph.

Like any ethno-racial or religious group, the population of white Protestants is internally diverse. It would be foolish to conflate the descendants of New England smallholders with the offspring of Scandinavian sod farmers in the Middle West, just as it would be a mistake to confuse the Milanese with the Sicilians, or the children of Havana doctors with the grandchildren of dirt farmers from Chiapas, Mexico.

So, when discussing the white elite that exercised such disproportionate power in American history, we are talking about a subgroup, mostly of English or Scots-Irish origin, whose ancestors came to this land in the 17th and 18th centuries. Their forebears fought the American Revolution and wrote the Constitution, embedding in it a distinctive set of beliefs of Protestant origin, including inalienable rights and the separation of church and state.

It is not as though white Protestants relinquished power quickly or without reservation. Catholic immigrants, whether from Ireland or Southern Europe, faced a century of organized discrimination and were regularly denounced as slavish devotees of the pope unsuited to democratic participation.

And, although anti-Semitism in America never had anything like the purchase it had in Europe, it was a persistent barrier. Protestants like Abbott Lawrence Lowell, a great president of Harvard in the early 20th century, tried to impose formal quotas to limit Jewish admissions to the university. The Protestant governing elite must also bear its own share of responsibility for slavery and racial discrimination.

Yet, after the ideals of meritocratic inclusion gained a foothold, progress was remarkably steady and smooth. Take Princeton University, a longtime bastion of the Southern Protestant elite in particular. The Princeton of F. Scott Fitzgerald was segregated and exclusive. When Hemingway described Robert Cohn in the opening of “The Sun Also Rises” as a Jew who had been “the middleweight boxing champion of Princeton,” he was using shorthand for a character at once isolated, insecure and pugnacious. As late as 1958, the year of the “dirty bicker” in which Jews were conspicuously excluded from its eating clubs, Princeton could fairly have been seen as a redoubt of all-male Protestant privilege.

In the 1960s, however, Princeton made a conscious decision to change, eventually opening its admissions to urban ethnic minorities and women. That decision has now borne fruit. Astonishingly, the last three Supreme Court nominees — Samuel Alito, Sonia Sotomayor and Elena Kagan — are Princeton graduates, from the Classes of 1972, ’76, and ’81, respectively. The appointments of these three justices to replace Protestant predecessors turned the demographic balance of the court.

Why did the Protestant elite open its institutions to all comers? The answer can be traced in large part to the anti-aristocratic ideals of the Constitution, which banned titles of nobility and thus encouraged success based on merit. For many years, the Protestant elite was itself open to rising white Protestants not from old-family backgrounds.

Money certainly granted entrée into governing circles, but education was probably more important to the way the Protestant elite defined itself, which is why the opening of the great American universities has had such an epochal effect in changing the demographics of American elites. Another key source was the ideal of fair play, imported from the ideology of the English public schools, but practiced far more widely in the United States than in the class-ridden mother country.

Together, these social beliefs in equality undercut the impulse toward exclusive privilege that every successful group indulges on occasion. A handful of exceptions for admission to societies, clubs and colleges — trivial in and of themselves — helped break down barriers more broadly. This was not just a case of an elite looking outside itself for rejuvenation: the inclusiveness of the last 50 years has been the product of sincerely held ideals put into action.

Interestingly, this era of inclusion was accompanied by a corresponding diffusion of the distinctive fashion (or rather anti-fashion) of the Protestant elite class. The style now generically called “prep,” originally known as “Ivy League,” was long purveyed by Jewish and immigrant haberdashers (the “J.” in the New Haven store J. Press stands for Jacobi) and then taken global by Ralph Lauren, né Lifshitz. But until the Protestant-dominated Ivy League began to open up, the wearers of the style were restricted to that elite subculture.

The spread of Ivy League style is therefore not a frivolous matter. Today the wearing of the tweed is not anachronism or assimilation, but a mark of respect for the distinctive ethnic group that opened its doors to all — an accomplishment that must be remembered, acknowledged and emulated.


Keep & Bear

March 17, 2010

The Supreme Court of the United States spent the month buried deep in the wilderness of McDonald v. Chicago, a case challenging the legality of Chicago’s super-restrictive handgun ban.

Plaintiff there argues the ban violates the Second Amendment of the United States Constitution, our right to keep and bear arms. Defendant maintains the Constitution applies only to the Federal government and leaves state and city lawmakers free to restrict guns as they please. Most pundits give odds to the plaintiff, but we won’t get that far today.

Instead, let’s step back and look at the two competing paths of thought Second Amendment arguments usually travel. The first is Justice Antonin Scalia’s beloved formalism, in which we examine the plain meaning of a law: the right to keep and bear arms is spelled out plainly, so there’s no need of discussion. The Founders have spoken clearly and the people may own and carry guns. This path makes sense because, if for no other reason, the men who wrote the Constitution were very literate. Most were attorneys. If they’d meant for their document to be open to interpretation, they could’ve said so. They didn’t.

The second, opposite view is that the Constitution can’t be read formally, as Justice Scalia would; rather, it’s a “living document,” whimsical interpretations of which are allowed and encouraged, and its authority comes not from the Founders’ words but their intent. This side of the street argues that the arms our forefathers had in mind were a far cry from today’s high-powered handguns and sawed-off shotguns, and so laws written with muskets in mind shouldn’t be extended to Uzi’s.

(Of course, they aren’t. Uzi’s are automatic guns, which means they fire bullets as long as the trigger is held down and there are bullets to be fired. Automatic guns like Uzi’s have never been legal for public ownership in America. They’re strictly the province of criminals, and no amount of laws will ever dissuade those guys… if criminals cared about laws, they wouldn’t be criminals).    

If read formally, the Second Amendment obviously guarantees Americans the right to own and carry (“keep and bear”) weapons. There’s no real ground for any other opinion, which is why gun-control advocates prefer to call the Constitution a living document, subject to interpretation, and not read it formally. And their interpretation is, the Founders intended the Second Amendment for antique muskets, not today’s arms, so its protections shouldn’t extend to modern guns.

The problem is, the Founders were talking about today’s guns, in a way. Washington, Jefferson, Adams, Franklin and the rest of that Revolutionary generation fought a terrible war with the English on American soil, in American cities, and on American streets… and then did it all over again in 1812. Years earlier, they’d fought the French & Indian War, and Native American attacks were a frequent worry (justified or not). 

The generation which composed the Second Amendment spent a good deal of its adulthood at war, fighting and killing, and guns were second-nature. In addition to the constant threat of Indian or foreign violence, Americans believed firmly in their right to shoot each other; duels were commonplace and assumed legal, unless otherwise noted. President Andrew Jackson, who had fought in the Revolutionary War, once remarked that he had been shot so often in duels and had so many bullets rattling around inside of him that when he walked he sounded like a bag of marbles.  There was little organized police activity; certainly no squad cars or radio patrols.

Further, the framers didn’t buy groceries, except exotic items which couldn’t be produced on their own land; they farmed and hunted. Guns fed them. Lucky, then, that they had guns… most Native Americans made do with arrows still, and only got guns by trade with colonists. They made no guns of their own, though the technology was hardly new. (By 1776, firearms had existed for a long time and were being refined each year; a version of the automatic machine gun existed in England as early as 1718. The Founders, as veteran military campaigners, knew well how quickly and effectively guns were developing).

The point is, a formal constructionist reading of the Second Amendment means gun-control advocates lose; the language is just too clear to support anything but strong and full gun rights. So they argue instead for a lenient take on the Constitution and claim it’s open to interpretation and that people should look to the intent, not the words, of the framers. In their opinion, the framers didn’t foresee the availability or power of modern guns when they guaranteed the right to keep and bear them, or intend we should avail ourselves of them as we once did muskets… but the fact is, they did. They wrote the Second Amendment fully aware of the new, deadly weapons which were introduced every year. When they announced “the right of the people to keep and bear arms,” they intended to reference the biggest, baddest arms then available, and they knew those arms were getting bigger and badder by the day.

The Founding Fathers wrote our Constitution in a brutish, violent land. There was little, if any, law enforcement. Men fought duels regularly and shot their food. In short order they fought two major wars against English Redcoats, one against the French, and scores of smaller territory skirmishes. They were threatened constantly by Native American violence, by slave revolt, and by each other. Guns were a high technology, compared to traditional swords and arrows (which were still the norm among many), and they were the most dangerous invention of their time. Machine guns had existed for decades, alongside canon and mortars, and the Founders knew that guns were getting better by the day. Washington especially was a military man, and aware of the progress tinkerers were making with new guns. It was his job to know. 

The Founding Fathers knew exactly what guns were when they wrote the Second Amendment, and the knew how violent men could be and how lawless things could get. They didn’t write about the right to keep and bear some arms, and we can assume that, because of their legal training, they would have been clear if that’s what they had intended. They simply wrote “arms”: knives, daggers, swords, sabers, bayonets, spears, pistols, muskets, rifles, repeating rifles, early machine guns, canon, mortars, grape shot, shotguns filled with nails, bombs and more… the deadliest, most destructive arms then available. There was plenty the Founders could’ve restricted, if they’d so intended, but they didn’t. They intended for every American to be as well-armed as was necessary for his safety in a hazardous country. 

The framers’ world wasn’t that much different from ours, or any less violent. Guns weren’t any less deadly than they are today (and the really deadly new ones, the automatics, are already outlawed and have been for a long time). Their intent wasn’t just to guarantee the right to carry flintlock muskets, but the right to carry arms, in whatever form and with whatever technological innovations are available, in an uncertain time.