Emanations and Penumbras And All That
My friend Steve Finefrock regularly publishes thoughtful, well-written essays on politics and culture. He does so only by e-mail, however, and has resisted my urgings that he start a blog. Even so, I was able to persuade Steve to allow me to post one of his latest e-mails, this time a meditation on the Constitution and original intent. Enjoy!
Fareed's Screed, et al: MY 'EMANATIONS'
by Steve Finefrock
aspiring TV tsar
Fareed Zakaria took his low-blow, low-octane, high-ego whack at George Will recently on "This Week" . . . as Will insisted (with the usual liberal-led interruptions) that the Founders used language precisely, and knew precisely what they meant when they chose certain words, and not other words, to insert into the Constitution. Fareed is not the first, nor the last, in our lifetimes, to believe in the Holy Grail of lefties -- the Living Constitution.
No less a brainiac than economist Walter Williams asserts at every opportunity -- including sub-hosting for Rush Limbaugh -- that he'd just love to play a game of poker, where the rules are "living" and thus changeable. Assuming of course that Williams' viewpoint would give "life" to the ever-changing card game's rules. Zakaria's interruption of Will was simple, and typical, regarding the document's original intent in allowing Congress to regulate commerce between the states: "George, those words were written 225 years ago."
Thus spake Zakaria. To liberals,that clever utterance is supposed to clear the matter. Such Old Words! They can't possibly limit us today. Yet, the lefties have a great, passionate, unyielding love affair with certain Other Words of the Constitution. Like a Chinese Menu, they like to pick and choose which rhetorical dishes they wish served up to America, by SCOTUS (Supreme Court of the United States -- now common-usage by many pundits, drawn from Secret Service vernacular). Fareed's grinning, smug face revealed that he thought he'd closed the matter with the interrupting retort.
Hardly. Let's examine a few Holy Grail elements of the Constitution, which the Left would decry at being given a "living" quality of legal flexibility, 225 years after they were written. Consider the six clauses/rights enumerated rather concisely and precisely within the First Amendment -- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." On Number Three -- the press -- SCOTUS has pretty well made that right an absolute, insofar as any court can do so.
Perhaps those words -- written 225 years ago -- didn't really mean "no law" and that perhaps the freedom the media has acquired after SCOTUS' rendering NY Times v. Sullivan was going too far. As the Court has found "emanations" from the document's words (and 'implications'), perhaps they can find an emanation of its "living" meaning to alter those clarifying words, "no law" and allow Congress to do as it wishes. Just as SCOTUS has given the Commerce Clause (Article I, section 8 of the Constitution proper) endless meaning, so that Congress can meddle in virtually any matter it chooses.
The Sixth of the First
But, there does seem to be a lot of "living" going on with SCOTUS when examining the Sixth (clause) of the First (Amendment), when Congress is allowed in Buckley and other opinions to regulate money given to candidates and causes, to win elections. There is no better way to send a message -- e.g., 'petition' -- when you have a grievance with government's agents -- legislators and executives whose names are printed on the ballot -- than to throw the rascals out. Or make them tremble at the prospect of losing their exalted succor at the public trough. Money is speech -- ask California's unions, spending $180 million in speaking very loudly, and constantly, against Arnold this past six months -- and any speech designed to address any grievance should be protected assiduously. At least as firmly as is the third-clause, for the media -- who can do pretty much as they wish, yet citizens and groups of citizens are limited in their speech output.
Looking elsewhere, let's ask about SCOTUS' opinion of the 'living' quality of the Third Amendment, one not well-known: "No soldier shall, in time of Peace be quartered in any house, without consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Barracks and kitchens and dining halls are expensive outlays for the Pentagon. This amendment, also 225 years old, was a reaction -- perhaps an over-reaction -- by the Founders to the Redcoats' ordering colonists to quarter soldiers in their own homes. Quartering thus saved a lot of cost, and it provided intimidation as well as a source of intelligence: the soldier kept the colonists nervous, and might pick up a little useful 'intel' here and there, to report to his commander during duty hours.
And, under the Third's several clauses, there is the chance that Congress might, in time of War, decide to prescribe by law, to do exactly what we once feared: quarter troops in homes, without permission of the Owner, much as we've seen SCOTUS approve the confiscation of land for any purpose whatsoever, by the government. Them words, so old, 225 years ago they were written. Maybe a little quartering of GIs needs to be prescribed by law, and since we're not truly at war -- no declaration yet issued by Congress -- but the defense budget is a bit tight these days, we can save money to spend instead on bullets and bombs, by transferring costs of feeding and housing our soldiers to citizens' homes -- which, after all, benefit from the local military base. Would be the biggest Unfunded Mandate in U.S. history. Possible with a "living" Constitution endless flexibility.
Will SCOTUS look favorably on that variation on 225-old words? Would Fareed Zakaria? Cokie Roberts? Georgie-Porgie?
The Constitution's 225-year-old language also defines very narrowly the terms of a prosecution for treason, again an "overreaction" of our Founders, 225-years ago, to the British summarily trying and hanging anyone who dared dissent in the colonies. Nifty device of intimidation, the easy and careless throwing of the 'treason' charge against one's enemies. So, section 3 of Article III might need a bit o' living, providing emanations to fit the changes in the 225 years since the Founders seemed to write words not applicable today: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on confession in open Court."
Again, words that are ancient, 225 years old, that need to be "flexible" and "living" to meet modern requirements. What is "aid" and "comfort" in today's digital domain? And why two witnesses? Why not one witness of living flesh, and another of a document which gives 'witness' to the treason? Or two witnesses, each testifying to a separate act! Why must it be an 'overt' act? Surely the SCOTUS brains can help that language "live" to fit modern needs! Why open court? Why not accept confession given in a secret court, since the exigencies of today's troubled times were not "foreseen by the Founders" those so many years ago?
Clearly the Founders knew what they meant, when they wrote the words, of all the Constitution. And the quickly-submitted first ten amendments, comprising the Bill of Rights. By ex post facto prohibition, they meant exactly that which words uttered, though Congress has redefined that term in tax law to mean a tax year: thus, a tax hike can be retroactive -- ex post facto application, or 'after the fact' -- to as many as eleven months' income, earned well before the president's pen puts the law into effect at the IRS computers. SCOTUS is highly flexible in interpreting the document, for the purpose of getting your money, but absolutely faithful in those 225-old words that give the media such a carte blanche in harassing citizens and public officials.
Four of the Fourth
Then there's the guarantee to each State for a republican form of government, so written 225 years ago into the fourth clause of the Constitution's Article IV. Maybe those 225-old words need a little "living" flexibility. Or, consider section 9 of Article I, prohibiting titles of Nobility: We're no longer under threat of old English customs being used against us, with Britain being our long-established friend. Surely we can accommodate new values and practices, and give ego strokes to beneficial citizens, with a little nobility's title here and there, a Duke or Earl or Lord attached to a name being a way to encourage good works. Duchess Barbra Streisand! Earl Bill Gates! A little 'living' Constitution could go a long way to encouraging exceptional citizens with an award that is more energizing than the unheralded Medal of Freedom. The medal goes into the trophy case. But a title! Why, it's on your stationery, envelopes, cable-TV invoice! It is something is truly "living" and eternal. To be inherited by your descendants.
There's a target-rich environment in the Constitution, for SCOTUS archers, aiming their arrows for targets of "flexibility" and "emanations" and "umbras" and "penumbras" and "shadows" that exist nowhere in words, but occupy a lot of space in the left-leaning Justices' ever-fertile minds. That little inconvenience in amending the Constitution -- 2/3 majority of each chamber of Congress to submit an amendment's text to the states, then 3/4 of the state legislatures to ratify -- might be made "flexible" by something we'd think up -- oh, wait, they have achieved that already!
By having SCOTUS 'interpret' which 225-old words mean exactly what they say, and which are subject to the mental gymnastics of five concurring Justices, the Judicial Jacobins whose revolutionary inclinations ignore what the words mean. Unless, of course, they mean exactly what the five Justices want it to mean. Madison and Washington and Hamilton and Hancock and Franklin -- 225 year-old fops in wigs, whose words were just a 'starting point' to be interpreted and giving a "living" existence.
Unlike the suffragettes seeking women's voting rights, and the abolitionists seeking slavery's demise, and the suffering wives hostile to demon rum, SCOTUS today would find a way to just ignore the 2/3-3/4 requirement for amending our most precious document, and render as totally unnecessary the 19th, 13th, 18th amendments. And upon finding Prohibition's evil, the SCOTUS solution today would be to simply say that the 18th's words don't mean what they say, and make unnecessary also the 2/3-3/4 process for the 21st amendment -- which repealed the 18th's anti-booze sentiment.
Amendments? We don't need no stinkin' amendments
It's a short Constitution as such documents go. And the conventioneers -- who met that hot summer of 1787 in a closed hall ensconced by Philadelphia humidity -- meant what they wrote. Many committee meetings were held on phrasing, and composition, and meaning. Some of them may just have been smarter than Fareed and Cokie and Georgie-porgie altogether. But short though it be, SCOTUS and its living-constitution adherents have a substantial collection of constitutional phrases and sections and clauses and articles to 'interpret' and make into 'living' enhancement of their Great and Good Vision.
I prefer the Founders -- any one of them, especially Madison -- to the whole lot of SCOTUS tinkerers, and their thousands of intellectual teammates, to tell me what should be the Basic Document. Their words were clear, and very concise, 225 years ago. And their meaning should stand firm and un-living -- until an amendment is submitted and ratified.
Why can't today's liberals (or progressives, as you wish) undertake the amending process, as it was written? Oh, I know that answer, and so dost thou: the provisions of the Constitution for amending are words which themselves over 225 years old. Ah, do ya get it -- SCOTUS has declared, by implicit behaviors, that nasty Article V of the Founder's original writing to be null-&-void. Amendments? Ratified by the several legislatures? As written in the original Constitution?
We don't need no stinkin' Constitution! We got SCOTUS, who just could authorize the Pentagon to quarter troops in your home, in peacetime (which we've had since the end of WW2), to save the Defense Department a few hundred million a year. Or a billion. Or ten billion. Who's to stop 'em? They've got the Living Constitution on their side.
And also the support and encouragement of the law faculties of Harvard, Yale and Berkeley. The Dr. Frankensteins of the Constitution, letting loose the monster of their living constitution onto the landscape.
All the more reason Dubya needs to be supported, and the GOP needs your contributions, to get some sense back on the Court. Life in politics is hard by the yard, but a cinch by the inch -- but only if we keep at it with every inch, for there are a lot of inches between us and the shackling of the liberals' Living Constitution, so that the Original Constitution can live again.
The conservative -- e.g., George Will/Walter Williams -- position is, the Constitution was quite alive when passed, and has never been ill or irrelevant, nor has its language, as intended by those who wrote it, who conflicted and compromised and composed with brainpower greater than most anyone serving in Washington, D.C., or on all the faculties of all the liberal law schools combined. It's periodic maladjustment to serious new contingencies can be remedied by the amendment process. Just as it was very effectively for women, blacks, senators' election by the people, etc. We don't need no stinkin' SCOTUS -- to tell us what Madison meant, or Washington wanted, or Ben believed.
Which Dubya understands very well. So, it's time to revive the old battle cry, Anno Dominatus Dubyae, the year of dominance by Dubya (yep, really, in Latin). Or shorted as "ADD" for the remaining "year" of Dubya's term.
A.D.D., and them some.