Wednesday, September 14, 2005

Back To Square One

Thomas Sowell tells us we have to go back to square one in talking about the Constitution (and it is worth quoting at length):

With all the confusing controversies about judges and how they interpret the Constitution of the United States, we need to go back to square one and ask: Why do we pay attention to the Constitution in the first place?

There has been much hand-wringing about how or whether we can tell what the "original intent" was among those who wrote the Constitution. But the moral and legal bases for the authority of the Constitution do not rest with those who wrote it. The moral and legal authority of the Constitution comes from those who ratified it -- "we the people" -- not those who wrote it.

The writers of the Constitution themselves understood this.

That is why some of these writers also wrote "The Federalist Papers" to explain to people across the country why they should ratify the Constitution.

Not only did that generation ratify the Constitution, succeeding generations have accepted the Constitution, with whatever amendments they found necessary to add, for more than two centuries. It is the American people who have made the Constitution the law of the land.

Once we understand that, we can see through the silliness of all the learned hand-wringing about what the writers of the Constitution might possibly have meant when they wrote it. What matters is what the people understood those words to mean when they ratified it and amended it. They didn't vote on what was in the back of somebody else's mind.

Much of the Constitution is remarkably simple and straightforward -- certainly as compared to the convoluted reasoning of judges and law professors discussing what is called "Constitutional law," much of which has no basis in that document.

Although some seem to think that abortion is the be-all and end-all question about a judicial nominee, the real question is whether that nominee will follow the law or succumb to the lure of "a living constitution," "evolving standards" and other lofty words meaning judicial power to reshape the law to suit their own personal preferences.

People who talk about a need for "change" in the law are off on a tangent, if not cynically confusing the issue. Nobody denies the need for change. The Constitution itself provides a process for its own amendment.

The real question is who should make those changes -- "we the people" through elected representatives or unelected judges?

The historical greatness of the U.S. Constitution lies in the fact that it is NOT a "living, breathing, document", but a document that carves in stone, for all time, the rights and freedoms of the people. NO ONE CAN TAKE THOSE RIGHTS AWAY, either by deliberate action or default.

No one talks about the Magna Carta as a "living, breathing document" because it did what nothing before had ever done -- limited the role of government by its recognition of the "Law of the Land" as supreme, above even the king. It has served as a starting point for many freedom movements. Our own Declaration of Independence was based on it; just as the Declaration of Independence and our Constitution has become the basis for other people's desire for freedom.

As Sowell points out, the Constitution provides a method under which it can be amended by the people, and by the people alone. The fact that this is so rarely done attests to the reluctance of the people to change a document that enshrines absolutely their basic freedoms.

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