Wednesday, February 03, 2016

Meditations on the Constitution

"The Constitution is a living document" is a phrase I have been hearing more and more since the Other Side has been losing in the Courts.

Most often associated with the Clintons, Al Gore --and now the Obama Administration -- the "Living Constitution" or "Evolving Constitution" is a philosophy that demands that we read the Constitution of the United States according to a socially-generalized modern viewpoint, rather than the interpretation the writers of that document used.

I see that I have lost some of my Gentle Readers. Allow me to illustrate.

In the Second Amendment, mention is made of "the Militia". In the time that the Founding Fathers wrote the Constitution, "the Militia" was every free man capable of bearing arms. Every one.

(As a point of fact, modern Federal Law mirrors this view in its own definitions: US Code, Title 10, Chapter 13, Sec 311:

"The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.")

To a proponent of the Living Constitution, though, this doesn't matter. To their way of thinking, "the militia" -- indeed the entire document -- must be read according to today's popular sensibilities.

So, where the Founding Fathers defined "militia" as "every free man capable of bearing arms"; and the current Federal Government defines "militia" as "all able-bodied males at least 17 years of age and under 45 years of age"; the proponent of the Living Constitution defines "militia" as the National Guard.

The reasoning for this is, near as I can tell, that the socially-generalized modern interpretation (read:  Public Opinion) holds that the "militia" is the National Guard, then the intent of the Founding Fathers, Federal Law, and precedent be damned ... "the militia" in the Second Amendment obviously must be the National Guard. Because the majority of Joe Sixpack thinks so.

I have a couple of problems with this way of reading the Constitution.

The Constitution was written by a group of men who were incredibly well-read, well-educated, and well-versed in Law, Logic, History and Philosophy. These men are spoken of as being intelligent, but their intelligence was based upon logic, upon application and upon discourse, rather than upon rote.

So. On one paw you have a group of men who wrote articles and books which are read to this very day, who invented items and pioneered philosophies which influence our lives every day;

And on the other you have Modern American Society ... which thinks that 'Keeping Up With The Kardashians' is the height of entertainment; who can't find Hungary on a map with the sodding Latitude and Longitude right under their noses; who believe that the President of the United States has the power to unilaterally balance the Federal Budget -- and who consistently rank the public travails of a white-trash pop-tart walking train-wreck as being, like, sooooo much more interesting than those boring old laws passing through Congress.  People who have spent -- nay, wasted -- their childhood in the American Public Education System, where they are taught what to think, rather than how to think.

Oh, the choices. Do I base my government on the bedrock laid by such men as Benjamin Franklin, Thomas Jefferson and others -- or do I base my government on a modern reinterpretation by a society which appears to value "self-esteem" as being far more important than, you know ... earning that self-esteem.

Pfagh.

Bear this in mind, O Gentle Reader, during the current game of Political Handegg (which is -- metaphorically-speaking, what the American Election Process has evolved into):  any candidate who believes in, or mentions "Living Constitution" or "Evolving Constitution" seriously believes that the Founders of this Great Nation (and the writers of the bedrock of this Great Nation) were wrong; and that the Mob (Honey Boo-Boo, anyone?) are right.

Yack.

Vote accordingly.

LawDog

17 comments:

OldAFSarge said...

BRAVO!

Roy in Nipomo said...

Concur.

Heath J said...

Well said. (as usual!).


Welcome back!

KBCraig said...

"Vote accordingly.”

And among the two major parties, that boils down to nil versus zero.

Roger said...

Two comments:
First, Welcome back Dawg!
Second, agree completely.

Old NFO said...

Well said, and on the money... Sadly, OUR money... Living document my ass! It's been good enough for 239 years, why not keep it???

Irony of ironies- The reCAPTCHA was pick the two cakes!

mbumgua said...

Well! Good to have you back. Been checking in once a week or so and there you are! Really been missing your posts and get that book started! Got to share the pink gorilla suit with more people. Welcome back!

armedandsafe said...

U.S. Code › Title 10 › Subtitle A › Part I › Chapter 13 › § 311
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Some time after that, the United States passed a law that the Federal government could not discriminate on basis of age, over the age of majority. Thus, the "under 45 years of age" disappears.

Some time after that, the United States passed a law that the Federal government could not discriminate based on gender. Therefor, the "males" disappears.

That leaves us with "able-bodied" " at least 17 years of age" and "who are, or who have made a declaration to become, citizens of the United States..."

If you are able-bodied, over 16 years old and a citizen or have declared, you ARE the militia. Whether you join a group to become "A well regulated Militia" is up to you.

Pops

Kris said...

The paradigm I rather like in viewing the Constitution characterizes it as a restraining order against the government.

Anonymous said...

You lost the opposing side at free man.
Who is this person and who told him he could be free they ask?

Glad to see your writing again.

Gerry

dave said...

The Constitution was designed to be a living, evolving document...and Article V is its beating heart.

Anonymous said...

What well said thoughts. I've been saying much the same thing as you, just using differing words.

It's good to know someone else, at least, is on the same page.

Unknown said...

Dave, the problem is...it's not living, evolving in the sense THEY're talking about (...and perhaps you...people that "get" what the document actually says and authorize, do *NOT* say words like "living breathing" or the like in this context- EVER.)

It is amendable. It is mutable, but it changes upon AMENDMENT and ONLY so. Article V specifies HOW that is the case. The terms "living", "breathing", or "evolving" imply that it changes at will and as much at the will of all of us on it's own, not with our unified consent and agreement. When someone uses those terms like you used, they understand it to be just that. It never was that. Just like "native born citizen" didn't have it's term of use in Article II changed- it still means what it meant then, which the Supreme Court spelled out no less than 6 times in the past. It means a Citizen born of two Citizen parents on US Soil. No more, no less. Congress lacks the authority to change the intent except as specified in Article V. The Supreme Court lacks the authority to interpret it any other way. The President defining it is a conflict of interest, and therefore lacks authority on that ground. Cruz is ineligible on this basis (His father was a Cuban National as specified on his birth certificate). Rubio is ineligible because BOTH of his parents were Cuban Nationals at the time of HIS birth. Obama is ineligible because his father at the time of his birth was a British Subject.

It matters naught that Barry's in office right now. This doesn't change anything. If found ineligible, his Presidency becomes simply VOID and all of what he signed into law or issued as EO's simply ceases to be valid and enforceable. Even PPACA. That's why the Supreme Court's been tapdancing around the subject- because they know what the answer will be and the Constitutional Crisis from the resultant finding would be titanic in nature.

Rick Street said...

Amen LawDog

M. Shaw said...

Good to have you back, Lawdog!

Knucklehead said...

Wellllll.... The mechanism used to "breath life" into our constitution is case law. We may not like how courts interpret the constitution but they do and we are stuck with it. It builds and builds until, sometimes, we can hardly recognize an underlying constitutional clause let alone what it meant.

The US Constitution is a brief and relatively understandable document - hardly 20 pages including whitespace. It can be read in a few minutes. Caselaw, on the other hand... no end to that and sometimes downright headache inducing to try and wade through. But that's the part we live with. And that's what we who prefer the simple constitution as it was written and amended struggle coming to grips with. Madison and Marbury - we've been struggling with that since nearly the beginning. Sometimes the presidents are good, sometimes not. Sometimes the judges are good, sometimes not. In both cases, at least for the moment, it would seem we have the worst of both worlds.

Old Weird Ward said...

Like many other vets, I served my time in the USN, and received an "Honorable Dischage" from the Naval Service.

I'm now old and grey, and ragged about the edges.

I have never released myself from my oath.

I am a member of the official Militia of the United States of America, as defined in U.S. Code › Title 10 › Subtitle A › Part I › Chapter 13 › § 311 noted above.

And following the Second Amendment's intent, I am certainly "well regulated" - I'm ready to stand inspection, with.. ummmm... equipment and accoutrements.

If you can prove that you're worthy of conducting the inspection, that is...