When it gets down to trying to understand the Constitution, U. S. Supreme Court justices do their best to appear non-partisan, but whenever it comes to figuring out the Framers’ INTENT, they’re doing nothing more than stating what their own intentions WOULD have been had THEY been among those original FRAMERS.
Take a few minutes to read the Constitution, especially the parts about equal protection, cruel and unusual punishment, and unreasonable searches. See the lack of specificity?
The document positively demands “equal protection,” and it certainly forbids “unreasonable” searches, along with “cruel” and “unusual” punishments. But nowhere in the document does it SPECIFY what actually constitutes these things.
And trying to find finality within the Framers’ INTENT amounts to legal bafflegab at its best—with due respect to Justice Antonin Scalia, of course.
To wit: fifty-five (all MALES) attended most of the Constitutional Convention’s meetings, while thirty-nine delegates actually signed the Constitution.
So, not only was there a large number of delegates, their individual opinions rarely meshed. In fact they were OFTEN diametrically opposed . . . and over MANY issues.
The Framers were dealing with life as they had known it under oppression and with life as they wished it to be for themselves and future generations of this fledgling nation. But, for SURE, they did NOT possess crystal balls!
The Framers could not have come within light-years of imagining members of the same sex wanting to MARRY, or an INTERNET capable of providing police searches in ways that make physical property searches mere child’s play—and at light speed.
As well, I think it’s obvious from their stated positions that the Framers didn’t want a federally mandated “official” religion, but they were NOT aghast at kids saying prayers in classrooms, or officials beginning meetings with a simple prayer.
But life changes with time. Original intentions based on the “intuitively obvious” get lost in shades of gray as life becomes ever more complex. We always learn the hard way that “intuitively obvious” is a highly relative term.
So yes, the Federal Government endorses no “official” religion. But by its granting myriad tax exemptions and deductions, it certainly DIRECTLY endorses multitudes of “unofficial” religions.
And although inadvertently, it INDIRECTLY stimulates the certain religious hatreds and bigotries that go along with them.
As a nation, we can pretend all we want that judges are supposed to follow the laws of the land like unemotional robots; that they “calls em like they’re written.” This, in MY opinion, is 18-Karat bovine fertilizer.
Whatever the Constitution “means” NOW—as it always HAS meant—is precisely what FIVE of NINE currently sitting justices SAY that it MEANS.
And it doesn’t matter whether the justices are ruling on matters of equal protection, cruel and unusual punishments, religion, or any other issue facing this country.
The justices derive no specific direction from the Constitution; they’re using their own discretion. And that discretion is going to be influenced by their PERSONAL political and religious philosophies.
It’s why there are such gut-wrenching personal hissy fits every time a sitting President nominates a Supreme Court Justice.
But make NO mistake about it—Left or Right—a nominee’s political leaning is a prime element in votes “yea” or “nay.” And whether we like it or not, a nominee’s ability at reasonable empathy SHOULD be—at least in a small part—an included consideration.
While we, the PEOPLE, theoretically can change the U. S. House every TWO years, and send one-third of the U. S. Senate packing every SIX years, Supreme Court Justices are in for LIFE.
Likewise, it’s become easy for most people to predict—with startling accuracy—which way our current Supreme Court is going to rule, based on nothing more than individual partisan and religious positions.
Two of the most recent issues—marriage equality and legislative prayer—are prime examples. Although, on gays’ rights to marry, people would have been wrong.
Considering that FIVE of the male members of the Court are practicing Roman Catholics, by status-quo standards, gays should have lost on this issue.
It was close, but they won. And the ONLY reason they won was because ONE of the five saw gay rights as a human rights issue and voted with the progressives.
The second issue, legislative prayer, once again pitted the Right against the Left relative to interpreting the First Amendment’s Establishment Clause.
I’m not going to repeat it all here. You may read it for yourselves by clicking here. My point in bring it up is to highlight the roles that religious conviction and social empathy tend to play in such matters.
Please note that the Establishment Clause doesn’t address whether specific denominational legislative prayers violate the Constitution, it only forbids the government from ESTABLISHING a religion.
However, also note that the Constitution gives absolutely NO guidance as to what constitutes an unlawful “establishment.”
NONE of the justices were questioning the Framers’ intent relative to their blessing off on legislative bodies opening meetings with a prayer; after all, the FRAMERS, themselves, hired chaplains to deliver prayers at the Constitutional Convention.
And discretion being what it is, the Progressives, relative to the New York issue, didn’t question the constitutionality of the matter; they simply questioned the potential for religious marginality.
Their concern was with the town’s legislative body’s ongoing propensity for incorporating ONLY Christian prayer and the use of ONLY Christian prayer leaders.
The Establishment Clause doesn’t address this; so, in addition to applying individual discretion, they should have included a bit of empathy in their interpretation of the law.
But the Righties simply went with the LETTER of the law and concluded that the town body had complied with it. The Lefties, essentially agreed as to the law’s LETTER, but they also concluded that its SPIRIT had been badly bruised.
Simply put, no matter what we believe religion-wise, ALL of us enjoy an equal standing politically. And accordingly, the Left felt that some empathy for religious minorities was essential to fairness.
In other words, legislative bodies have a right to open their meetings with all the prayers the want, but they need to spread the religious wealth around a bit more evenly.
But on the majority’s side of the issue, the justices—all FIVE of them Roman Catholics—simply “called em” as they “saw em,” in an overly SIMPLISTIC DONE DEAL!