Let's Give Up on the Constitution
Rolled over to the New Year by request.
...As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official -- say, the president or one of the party leaders in Congress -- reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book "On Constitutional Disobedience."

We're getting used to being ruled, rather than governed. And we're getting real used to rule by decree.

The obsessing on the fact that those who wrote the Constitution were white -- usually by white liberals like the writer -- kind of turns my stomach. So was Julius Caesar white. So was Aristotle. So was Sir Walter Raleigh. So was Al Capone and Wyatt Earp and Horatio Nelson and Eddie Rickenbacker. And, with special significance for an argument on the Constitution, John Locke. Somehow in the process of attempting to overcome the racial animus that prevailed up until the early 1960s, we've (or some of us have) become hyper-race conscious, and being white has become a point against a person. These are the seeds that in our grandchildren's or great-grandchildren' time will grow into some nasty ethnic conflict. Since they'll be busy paying off an enormous national debt at the time in eentsy-weentsy dollars they're going to be pretty irritable and the conflict won't be pretty.

Mr. Constitutional Law Perfessor doesn't appear to realize that the Constitution is a framework of government and that it has been adjusted to meet changing conditions over the years -- that's why we inaugurate the president in January, rather than in March. It's also how we ended up with the income tax despite the provision in the body of the Constitution against a head tax, and how we ended up with women's sufferage and with the Volstead Act and no beer. It's intentionally designed to be hard to amend -- just about everybody has to support the change, rather than just a bare majority of congressmen. But the House still maintains control of the public purse and there's still a requirement to come up with a budget every now and then, whether they want to or not.

The bitch often centers on the Bill of Rights, which are safeguards against dictatorial rule. They are restrictions on government, so naturally as government grows more rapacious and dictatorial it will attempt to remove or overcome those restrictions. There's probably a reason for that.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the 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.
That means you can take Sunday off -- it's the Lord's Day, when it's forbidden to do any work. It means that you can belong to a church of ludicrous doctrine, worship Baal if you please, or believe in nothing at all. You can be a complete solipsist if it pleases you. It says -- remember it starts "Congress shall make no law..." -- you can be a member of the Tea Party or Occupy Wall Street or both if you're a contortionist and government shall not say thee nay. And if you want your taxes reduced you have a perfect right to turn up in front of the Capitol and holler about it, even though a few thousand letters would do more good. And you can make fun of Mohammad or the Pope or Chairman Mao all you want. What's complicated about all that?
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
The militia in 1776 was the army. It was called out in the case of Injun attacks or to fight the Redcoats. Its members brought their own weapons. We don't have many Injun attacks nowadays and the Redcoats are friends and allies. But if you read the Declaration of Independence, another legal document forming the government, you read
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government
to whit, that the citizenry has the right to abolish or modify a government that becomes, let us say, rapacious and arrogant. Requiring that tea sold bear a stamp from the government, or that everybody has to buy health insurance, want it or not, for instance. The right to bear arms is the right to keep government honest, and the higher capacity the magazines the more honest they'll tend to be.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Troops used to be put up in citizens' houses. The citizen got to feed them and take care of them until they moved on. "Quartering" often looked more like "looting." It's not a problem we have at the moment, but there's nothing to say it won't come back fifty or a hundred years from now.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A certain amount of search and seizure is required to maintain a civil society -- otherwise crooks could just step inside their doors and remain undisturbed. The key word, I'd think, not being a hotshot Constitutional scholar, is "unreasonable." For instance, crashing through a citizen's front door at 2:30 in the morning, hollering and waving guns, doesn't seem all that reasonable. Maybe six or seven a.m. if the guy's a bail jumper or an escapee. And when the cops leave, possibly with their prisoner cuffed and on his way to jug, they should have to clean up when they leave, or at least leave the place like they found it. And the sight of an armed and armored SWAT cop holding a gun on a screaming six-year-old boy should be a sight that would have the citizenry up in arms. Even Alexander Hamilton would choke on that one. He and Aaron Burr would show up arm in arm, leading the charge to be out in front of the Capitol, demanding the dissolution of whatever agency the Storm Trooper belonged to.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
We now live in an age where a Grand Jury "will indict a ham sandwich." The purpose of the Grand Jury is to look at the evidence and determine whether the case against the accused looks reasonable. If not, the prisoner should be released, possibly until the Feds can come up with better evidence, probably for good. There's an exception for wartime, since (oh, dear!) military tribunals might be operating in different circumstances. And there's a provision against double jeopardy to keep the Feds from bringing the same charge based on the same evidence over and over, impoverishing the accused while they rely on a crap against the wall technique. He can't be made to testify against himself, either, and he's entitled to due process of law, which means the cops can't be judge, jury and executioner. Nor can his property can be grabbed for some Congressman's project, to be paid nothing or a pittance.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Now we're getting into the "Due Process of Law" part of it. The Constitution that this guy's in favor of discarding, has a provision in it that would look to any normal person like it forbids indicting a guy in May and starting his trial not even the next September but the one after that. I'm not too sure how you'd define sixteen months as "speedy." Go to your local federal prison and pick a case at random and count the number of months, not days, between arrest and verdict, then add another six months for sentencing. The jury has to come from the same area that the alleged crime took place, even if there's a change of venue to Caliphornia so they can maybe get the Ninth Circuit. The jurors would have to be transported from Minnesota or wherever. I'm not even sure if it's within the bounds of the Sixth Amendment for a person to face 120 separate counts of mopery or something. One thing at a time would seem less overwhelming and wouldn't allow that crap against the wall approach by a bloodthirsty prosecutor.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Seventh amendment establishes English common law, which stretches at least as far back as King Alfred, for use in civil trials concerning values greater than twenty bucks. You get a trial by jury, not "if you want one" but a trial by jury. You can't kneel before the local satrap and describe your complaint or have some party hack alderman decide it. And that last bit means that if a jury comes up with an outlandish interpretation of the facts in a case they'll have to be examined in an appeals court in accordance with that same common law. Of course, King Alfred was white, and so was King John, and so were each and every one of the King Henrys. And all the King Georges. And common law recognizes corporations as persons in a limited manner -- GM can't vote, for instance, but it can and does own lots of property.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Feds are forbidden to impoverish an accused. The definition of "cruel and unusual punishment" can change over the years, so I guess in this respect the Constitution's a "living document." Those Dead White Guys were thinking of the rack and the bastinado and drawing and quartering. Nowadays we think how cruel and unusual a ball and chain would be. Or hanging.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Anything else that we, the people, decide are rights are our rights, not the government's to give or take away. Those old white guys are saying here that if they left out any positive rights on a par with protection against unreasonable search and seizure, that's forbidden to government, too.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The tenth amendment is a second whack at the rights protected by the ninth. The ninth says that any rights not enumerated belong to the people upon discovery. The tenth says that anything the Constitution doesn't say the government can do, it can't do. To whit, education or environmental protection, or health and human services or housing or urban development. And public television and radio. As far as I know, and I've read the whole document two or three times, maybe more, there's no provision in there for executive orders, either.

And no tsars. The Dead White Guys really didn't like tsars.

The real gripe we're seeing here is that the Constitution establishes a republic and we've evolved into a democracy, with all the faults that inevitably accrue -- most strikingly the majority voting themselves the minority's money. There's no Constitutional provision for that, and the Lockean provisions for protection of life, liberty, and property loudly argue against it.

The stop at democracy, I believe, is always a short one. It inevitably devolves into oligarchy. Explain to me, please, the differences between the Kennedies, the Dalys, the Cuomos, the Bhuttos, the Ghandis, and the Sharifs? And the al-Thanis and the Sauds. Oligarchies can last for years and years but eventually they decay is into dictatorship or anarchy.

Posted by: Beavis 2013-01-01