Sunday, July 5, 2015

Applying the Constitution as “originally understood” by the framer’s “intent” a sometimes disturbing thought

The recent U.S. Supreme Court decisions that turned back another challenge to the Affordable Care Act and upheld gay marriage surprised many conservatives, especially Republicans running for president. They now will find it exceedingly difficult to use either as campaign issues, since opposition to them are now just a lot of hot air to excite the stupidity of their base constituency. A few right-wingers like Florida Sen. Marco Rubio were both resigned to the decisions and defiant: “While I disagree with this decision, we live in a republic and must abide by the law. As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.”

And what does “originally understood” mean, anyways? The truth of the matter is that the U.S. Constitution is often vague in its meaning, and right-wing jurists have a habit of searching for the framer’s “intent” in the latters’ often unflatteringly narrow-minded and bigoted personal views. Furthermore, the framers certainly could never have imagined a world in which everything could happen at the push of a button. The framers of the Constitution assumed that the information and capacities needed to make necessary decisions would only be available only to the privileged few; how could they imagine that in today’s world a vast overload of information could be retrieved by anyone with Internet access or a “smart phone” at any time, anyone could offer an “opinion” on issues that policymakers were forced to heed?  

Thus the justices on the Supreme Court are not necessarily “experts” on the Constitution; they only offer an opinion on what they believe it says, usually based on personal ideology. Most people, for example, probably think that Justice Scalia’s opinions are hopelessly outdated and based not so much on “strict” interpretation of the Constitution, but on personal bias and a desire to simply be contrary; as for Justice Thomas, it seems that he is using his position as a means of revenge against those who accuse him of being an “Uncle Tom.” 

The reality is that if we followed Scalia’s dictates, the country would be stuck in Medieval times socially and culturally, incapable of forward progress based on new realities—much like we accuse Muslim countries of being. And in the past, what some justices’ “understood” to be the framers’ “intent” was deliberate misinterpretation or reinterpretation, leading to decisions that today are hard to believe. Take for example the infamous Dred Scott decision in 1857, in which Scott claimed that having resided in a free state changed his status from slave to free.  In this case, Chief Justice Taney somehow read into the Constitution’s Privileges and Immunities clause—which states that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”—that blacks as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." 

Taney based his interpretation on a statement made 30 years after the fact by Charles Pinkney of slave-holding South Carolina, who was the author of the clause: “I perfectly knew that there did not then exist such a thing in the Union as a black or colored citizen, nor could I then have conceived it possible such a thing could have ever existed in it.”

Taney thus argued that the “founding fathers” and the authors of the Constitution never even considered the possibility that blacks (or the indigenous population) could function as useful citizens, 

For if they (blacks) were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they (Southern slave states) considered necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them full liberty of speech in public and in private upon all subjects upon which its (a slave state) own citizens might speak; to hold public meetings upon public affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

One should never underestimate the South’s fear of free blacks in their midst. To allow a single free black to have permanent (or even temporary) residence—let alone hundreds or even thousands—would cause unrest amongst the slave population. But Taney’s decision went far beyond that, suggesting the existence of any free black who was a citizen of the United States was by his or her very existence a danger to peace and tranquility of the land. He even goes so far as to suggest in the above statement that it would be intolerable to allow blacks the right to be protected from arbitrary and excessive police abuses.

 The problem, of course, was that this was largely a figment of fear, paranoia and personal “taste.” I recall in a college classroom a very pale, blonde female with a need to get something off her chest: “I’m not a racist, but I would never marry a black man. But I’m not a racist.” Everyone looked at her with differing levels of bemusement. I’m certain she spoke for every white Southern women in the classroom, and was indicative of another thing: There is a fine line between racism and personal preferences based on race.

Reading Taney’s words makes one wonder if the founding fathers could have been so wrong-headedly narrow-minded and racist, and even absurd, as he believed them to be. One wonders how many of them (at least the Northern delegates) would have “modified” their views and denounced the decision if any of them were alive when it was issued; one suspects that many of them would have. Most would have admitted at the time of the writing of the writing of the Constitution that Taney’s estimation of their collective opinion was correct; on  the other hand, there is no doubt that some of the Northern framers would have been carried along in the bitter sectional fervor of Scott’s time. 

There is also anecdotal evidence in the New England states that free blacks were early on granted at least the rights and privileges of citizenship that whites had, such as the right to sue a white man in court. The truth of the matter was that like the issue of gay marriage, how a justice ruled had less to do with the concept (since back then the framers probably could not even have imagined it), but with personal ideology. 

The truth of the matter is that the proof that the Constitution as originally written is not “infallible” and the framers knew that changing times would require its modification is in the 27 amendments to it (including the Bill of Rights). Much of the Constitution is so vaguely written that one suspects that the framers wrote it that way to allow for future “interpretation.” Those who insist on a “strict” interpretation” or how it was “originally understood” are the ones who fail to understand it—or recognize its shortcomings, that allowed a chief justice to use it justify dehumanizing and subhumanizing an entire group.

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