Everybody’s a bloody expert when it comes to the Constitution. Whether the issue involves gun rights, equal protection, capital punishment, prayer in public places, or a host of other matters, people come out of the woodwork with proclamations as to what the Constitutions “says.”
But here’s a newsflash. Like it or not, the Constitution “says” whatever 5 of 9 sitting justices say that it “says.” End! Of! Conversation!
Then comes all the hoopla about the Framers’ intent! Even though these folks (the Framers) have been dead for hundreds of years, these “experts” bellow on about what the Framers meant, as though they’re mediums in touch with the long-dead.
And let us not forget that judges are required to follow the law and not their emotions. In fact, even some real experts tell us, in effect—Chief Justice John Roberts, for one example—and I’m paraphrasing here, that judges are umpires who don’t make the rules; they just apply them.
The problem is that whenever people, with the ability to read and reason, start examining the Constitution, they realize that, at best, the rules are a bit fuzzy.
The Constitution addresses values in general terms. It comes up quite short on specific guidelines as to what actions constitute violations.
For example, the Constitution doesn’t even mention homosexuality. So are same sex marriages part of the equal protection clause? Is a search legal if the police, upon stopping people for routine causes, decide to browse through their cell phones?
As well, the Constitution addresses cruel and unusual punishment, but it does not specifically address what actions—or give examples of behaviors—that constitute such punishments.
As for what the Framers intended, good luck with figuring that out. Less than sixty men attended all the meetings of the Constitutional Convention. They were rarely of a single mind about anything. And only thirty-nine delegates—out of about fifty-five of them—signed the final document.
So, with deference to Justice Antonin Scalia, whenever sitting justices address unprecedented issues, there are no clear rules for them to apply.
And as for finding the Framers’ intent, virtually every Chief Justice—most recently John Roberts—has lamented the futility of doing this, although Justice Scalia disagrees.
However, the Framers knew something about themselves for which we give them no credit.
They knew that they didn’t know everything; so they made it possible, but intentionally difficult, for future generations to change the Constitution if it became necessary.
And they framed it vaguely so that future generations would be able to derive reasonable interpretations based on current social norms.
So, the notion that Supreme Court Justices are able to wean Constitutional rulings strictly from a combination of constitutional generalities and Framers’ intent, is silly.
There is no way that the justices can forgo personal discretion and some degree of human empathy. And NOTE that I used the term, “empathy,” not “sympathy!”
For example, does the practice of elective bodies opening public meetings with a prayer pass Constitutional muster?
Virtually every elected body in this country—including the United States Congress—has done it for centuries. And in a recent ruling, by a 5 to 4 split decision, the U. S. Supreme Court said YES.
And in my opinion, it probably is constitutional. There is plenty of precedent for doing it, and even the Framers seemed to have endorsed it; they, too, prayed a lot before their meetings.
However, my point is that the Establishment Clause doesn’t specify whether such prayers are unconstitutional. It simply forbids government from establishing a religion.
But, even at this, the case didn’t pit the Lefty justices against the Righty justices over the constitutionality of such prayers.
In fact, the Lefties didn’t challenge the constitutionality of the prayers at all. They merely challenged the use of exclusively Christian prayers to the exclusion of prayers from religious minorities.
Again, read the Establishment Clause; it contains nothing specific about prayers being unconstitutional. Even the Framers weren’t specific. So today’s justices had to use their discretion.
For the Lefties, the points were prayer equality and that opening meetings with exclusively Christian prayers violates the Establishment Clause.
The Lefties, in this case, combined some empathy with their discretion; they gave relative weight to religious minorities. The Righties—all five of them Roman Catholics—did not.
Same sex marriage is another smoldering social ember.
When Rick Santorum rants on—in perpetuity, it seems—about judges not following the Constitution in this matter, he’s full of low-grade fertilizer.
His position has nothing to do with the Constitution and virtually everything to do with HIS particular religious perspective. It’s painfully obvious that, for Santorum, the Bible and Ten Commandments TRUMP the Constitution and Bill of Rights relative to same sex marriage.
But, for all of the babbling that’s been bantering back and forth during my lifetime over the issue of homosexuality, I’m still at a loss to explain how people “become” homosexuals.
Forget the Bible. Is it a conscious voluntary choice? And if it is, then by logical conclusion, heterosexuality must be a conscious voluntary choice as well. So, how does one choose?
I mean, speaking for myself as a man, should I have gone man-on-man, followed by a man-on-woman session, before making my CHOICE?
And is only one sample session from each perspective sufficient? Or, should it require multiple sessions from each perspective before one would be able to make an INFORMED choice?
It’s so confusing! Every homosexual (male and female) I’ve asked about it, has told me the same thing. As puberty overtook them, they just seemed to be attracted to members of the same sex.
And every heterosexual I’ve asked were all equally certain that their relative attractions were for members of the opposite sex.
But while the Supreme Court struck down the federal Defense of Marriage Act by a 5 to 4 ruling, the Court hasn’t ruled on the CONSTITUTIONALITY of same sex marriage.
It’s going to come to them sooner or later. Will they take it on; or will they do what they often do, and hang a “gone fishing” sign on the courtroom door?