So, when you spend a great deal of time touting your authority based on the unique advantages of editors, the question must be asked, who reviews the views and claims of the editors? From the editorial board of the New York Times we get this rather startling new information on our Constitution:
It is an eminently good thing that the anti-suicide measure would require medical specialists to keep track of veterans found to be high risks for suicide. But that’s to care for them as human beings, under that other constitutional right — to life, liberty and the pursuit of happiness. Respect for the grave sacrifices by veterans requires the Senate to strike down the Coburn ploy and hurry this vital measure to President Bush.
I think these kinds of beliefs explain a lot about how The Times views our Constitution. I suggest that they disabuse themselves of such ignorance by having everyone on their editorial board (and make it a requirement of future editors as well) study the work of a notable New Yorker by the name of Alexander Hamilton, as well as his co-authors John Jay and James Madison. Perhaps they have heard of the work, “The Federalist Papers.” Preferably they could do so under the tutelage of Randy Barnett (I think one should have it lead by someone likely to challenge any desire to search for what they want to in the text. Broadening perspective and all that.) This work, which they may have had assigned long ago, under rigorous examination may not change their views about anything, but at least we wouldn’t have to listen to them claim quite as often things about our constitution and how it is supposed to be interpreted which are manifestly untrue. Of course, while it would be a good thing for our nation if such an influential organ did this kind of thing, it would deprive many of us of a certain smug satisfaction.
So be it, we all have to make sacrifices.
(H/T: Instapundit)
Craig,
For the sake of discussion let us agree about rights being so malleable. If so, the question is how to change them (or recognize the change legally?) If people wish to cede these rights (or create them) should it be through a constitutional process, or through courts (urged on by institutions such as the NYT which wishes these rights were in our Constitution) “finding” them there or endorsing a simple legislative determination that these rights exist?
Thomas above claims we can at least change legislators (a practice observed mostly in the breach it seems) but if that is the case, why a Constitution? Why would the Times even refer to the Constitution if it as a document has no bearing other than a touchstone of our aspirations? Judges can unleash new rights, legislators can as well, and both will restrict others because the 10th amendment says we can cede those rights? At this point it seems the actual document is nothing more than a useful fiction we point to because “the People” believe it matters while legal theorists (including amateurs such as ourselves) cater to this faith to move society where we will. The main restraint being the pull and tug of various philosophies over the common law tradition. Both unwilling to just attempt to rule the way they wish (either legislatively or judicially) because adhering to those rules restrain others as much (or hopefully more) than themselves.
I say this not to disparage such developed and negotiated traditions, Britain has no founding document or Constitution in this regard, yet it still functions. I guess if that is the case I just wish that in the public realm people who wish for the law to be seen as such forthrightly said it. Deride our Constitution as serving little real purpose any longer, we are ruled instead, and should be, by the traditions of common law and legislative action. We are and should be a democratic Republic, and the restrictions on our democratic will should be pared back and eliminated. Our founders were humans, not gods, we should not worship them any longer.
That is not my vision, but it seems to me to be the implication of such ways of looking at the Constitution.
The short answer is, yes. All of the above. These things can be changed through referrendum, through legislation or through the courts and I think all three have their place in the process. We are a republic with democratic mechanisms in place for government to seek and obtain the people’s will in all matters, and they should do so. Ours is a government that rules by the consent of those who are ruled and the changes made to that rule should most often be through as direct a method as possible. That is to say, people should cede or retain rights, their rights, through referrenda when those rights will affect a broad range of people. The broader the effect and deeper the affect of a given change, the more important it is that the whole range of people be directly involved. In these cases, the normal legislative route may also be acceptable but, in my opinion, not optimal.
But what of cases where the rights being ceded or retained will directly effect only a small number of people? What then? What of things like marriage between same gendered couples? Gays/lesbians comprise at most ten percent of the population, nation-wide. Is there any hope of ending the present disparagement of rights of such a small segment of the population via either referrendum or through legislation? Gays and lesbians fear not. Their choice of seeking redress through the courts is understandable but frought with peril. Fearing that the politics of marriage and of the rights of such a small number of people whom such a large segment of the population considers to be anywhere from sexual perverts whose behavior should be criminalized to the slight queeziness that many feel, it may not be irrational to suppose that a federal court decision from the SCOTUS alone will be able to deliver rights to them. The peril is that such a ruling will unleash such a backlash as will successfully pass a federal amendment to the Constitution forbidding the marriage of any but one man and one woman, effectively defeating any chance of gays being allowed to marry. The only hope, then, will be to differentiate a civil union legal regime that conferrs the same legal rights and responsibilities that will be an acceptable “consolation prize” for gay-rights hopefulls.
It took a devastating war that split our nation wide open and spilled vast amounts of blood and tears and it took holding the South hostage to accept the post-bellum amendments of face total ruin in order to begin to take back the rights of blacks in this country within a system that had been deliberately set up to favor the slave-holding South. A repeat of this must be avoided at all cost. Ideally, through discussion, in which, yes, the New York Times and the Washington Times and the Sunday Morning TV News rehashers will play a large part, the public opinion at large can be changed to the point that the people of the states will relent and seek legislation that will redress the grievances of the glbt community. It would be hoped that advocates of all sides would be rational, honest, balanced, present the best arguments from their side while dealing honestly with the best arguments advanced by the other side but, well, this is the real world. Little hope of that. :^)
What is the peril? Since we are a democracy which is not limited by the Constitution why would such a thing matter? The commerce clause, the second amendment, all are up for grabs in our democracy. Why would an amendment be anything other than a fleeting statement of opinion at a point in time?
Lance,
I meant, peril from the point of view of those seeking gay rights. As the prohibition amendment proved, what can be done, can be undone but at a cost. The cost of, say, a “Save Marriage” amendment would be different than the costs of prohibition and its subsequent reversal and they would fall upon a smaller segment of society but that does not necessarily make them less harmful. Plus, the chances of reversal of such an amendment, given the fact that it falls upon a comparatively small segment, is unlikely to be reversed nearly as quickly as prohibition. In short, fleeting is a relative term. For those who are denied, fleeting might describe several life-times.
I guess I am not being clear. I understand that the amendment might in fact take a long time to remove, though I don’t think it will come to be. Instead I am referring to the idea that our rights are, or should be, so easily changed, added and subtracted from. You suggest that the Constitution is subservient to the democratic will of the people at all times and on all subjects, that any of the methods I described can be used to alter the meaning of the Constitution irrespective of intent or restrictions on governmental authority. If we acted as if that were true then it would be no more of an issue to alleviate that grievance than to change any other law or regulation, so why would such an amendment be a large threat unless the Constitution and its construction stands outside of normal democratic action?
Lance,
Not all of the avenues mentioned by you are created equal because not all are equally easy to change. A state statute can be changed by many means: a) an amendment to the statute by the state legislature; b) a ruling by the state high court; c) a federal statute; d) a ruling by a federal court; e) the US Constitution. A state high court ruling might be able to be changed by: a) a federal statute if it falls within an area of the federal government’s legitimate constitutional authority; b) a federal court ruling, again if it falls within an area of the federal government’s legitimate constitutional authority; c) an amendment to the state Constitution; or d) the US Constitution. A federal statute can be overridden by: a) an amendment to the statute; b) a federal appeals court; c) the US Constitution. A the Supreme Court’s decisions can sometimes by overridden by a constitutional federal law but the sort of decision, say a SCOTUS decision that the equal protections clause of the 14th amendment reqires that same-sex couples be allowed to marry can only be overridden in one way: by changing the Constitution. Sure, in my way of defining constitutional rights, any and every right is subject to a sufficient majoritarian action but of all those actions, changing a “protect marriage” amendment is the most difficult of all to change. Obviously, not everyone will agree that this would, from the standpoint of a gay rights activist, within my way of thinking of rights, make a “protect marriage” amendment a perilous thing because, as you seem to accept, such reversing such an amendment would be a long and arduous task that might never be overcome.