Monday, September 17, 2012

Ordained, Established, and Ambiguous

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Isn't that something?!
Sure, there were a whole lot of folks who weren't part of the "We" who were doing that ordaining and establishing.  And sure, there were some real problems with the Constitution as ordained and established by the We who were in on the process.
But still.
Today (just a couple of hours left in it now, but I've been away) we celebrate its birthday.  So take a break right now and read the thing.  I'll wait.  It won't take long.  Here's a link to a transcription of the original text from the national archives.  And here's a link to the Bill of Rights, the first ten amendments, with another link at the bottom of that page to the rest of the amendments.
Done?  Good.
Now, let's think about it a bit.
The Constitution (as amended) sets out some things about the way the federal government is organized, about the relationship between the federal and state government, about things the federal government (and its agents) can do and things the federal government (and its agents) cannot do.  It imposes a few limits on state governments (and their agents) and on individuals, too.  
Much of that stuff is detailed and explicit.  Senators must be at least 30 years of age.  Presidents must be at least 35.  States cannot coin money.  The President can grant reprieves and pardons, but not from impeachment.  The minimum age for voting eligibility cannot be higher than 18.
On the other hand, much of it is nebulous.  Bail cannot be "excessive."  Congress has the power to make laws that are "necessary and proper" to carry out its powers and the powers of any other branch of government or department of government or government officer.  Searches cannot be unreasonable.  The feds cannot take away a person's "life, liberty, or property, without due process of law."  There's some relationship, of some sort, and maybe it's important and maybe not, between a "well regulated Militia and the right to "keep and bear Arms."
It's not that there aren't people who are quite sure they understand precisely what those nebulous provisions mean, it's that the provisions are nebulous.  What's necessary?  What process is due?  What is that relationship?  The Constitution (even as amended) does not say.
Those charged with interpreting it (and the Supreme Court has been so charged since it arrogated the power to itself in 1803, though maybe the power was implicit in the Constitution and maybe it wasn't) may think they know.  But they're interpreting.
And every exercise in interpretation is an exercise in making it up.  
Maybe they're making it up on a set of principles that seem sensible to you or me or the guy who just got on (or off) the elevator.  Maybe they even seem to that guy like the only sensible principles. 
That's a form of myopia.
It's not that the Constitution has no firm contours.  It's that there's no way we'll all agree on the bounds of those contours.
As I was driving on the Pennsylvania Turnpike today, I saw a car with a bumper-sticker that said
Love Freedom?
Defeat Obama
I'm not sure "exactly" what "Freedom" is that will be obtained if Obama is defeated.  Will Mitt Romney unilaterally liberate all prisoners?  That will increase a sort of freedom, though I don't think it's exactly what the person who put that sticker on his bumper had in mind.  Will Mitt prevent crackdowns on those who want to Occupy Wall Street or some other street or park or venue in order to seek redress of grievances?  Or just for the hell of it?  Probably not.  Wouldn't and couldn't.  Nor would Obama, of course.
Freedom to have abortions?  Or freedom to prevent women from having them.  
Still, and despite the fact that we can't agree about what it means or how to read it, and despite the fact that every reading, every interpretation, is really just making it up, and despite the fact that we ignore large parts of the thing and formally endorse (via court opinions and executive decisions and legislative acts) wholsale violations of other parts, it's a hell of a document.
Beginning with that ringing "We the People."
Even though "We the People" was a whole lot fewer than All the People.
Happy Constitution Day!

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