What’s In a Constitution?

Tags

2nd Amendment, abortion, Constittutional interpretation, free speech, Living Constitution, originalists, strict construction

The Contrarian raised the question: “How does one oppose pharmaceutical companies being allowed to advertise on TV without violating the first amendment?”

The thing about the Contrarian is, he seldom asks easy questions. And I’ve learned to mostly not think too much about his questions, because I usually have enough of my own. But, given my legal background, an idea came to mind, and I replied:

“I think you might argue that said commercials constitute a clear and present danger to the public at large and are thus subject to regulation or prohibition.” You may or may not agree, but at least it’s plausible. I mean listening to the average list of cautions about dangerous side effects leads me at least to conclude that most drugs shouldn’t be taken unless absolutely necessary.

Yet, some folks, get ideas about diseases or afflictions and demand said drugs at great risk to their health or life. There seems always a way to get them too, even when “good” doctors refuse to prescribe. So there is danger to the public by allowing drug companies to plant notions of  disease in people’s minds. The “restless leg syndrome” comes to mind. Nobody is going to die from it, and the treatment has some might weird side effects.

But it all raised a greater issue to me, that of judicial interpretation of the Constitution. Not something that most people sit around discussing in bygone years I admit, but lately it has become a political tool of the right. Labeling every judge whose decisions you don’t like as “not a strict constructionist” makes otherwise perfectly legitimate judges look like somehow sinister and utopia crazy.

Mostly, as I’ve suggested before, the label is wildly misused. I’m not going to get into all the possible means of interpretation here. There may be more than a dozen technical ways of looking at the document, but a couple are important I think. An originalist, of which Scalia and Bork are, means that one attempts to glean what the purpose and intent of the Founders was. It attempts to determine what the original words meant to the persons who wrote them, and thus limits in a very real way an expansion into new areas. They would claim that this is the realm of amendments.

A strict constructionist claims that we are limited by the actual words. If it says, the “Congress shall make no laws,” it means precisely that. This means that there can be no limit on one’s right to “keep and bear arms,” even if the arms turn out to be a bazooka or nuclear weapon. The originalist, it would seem, should be bound to muskets and swords since those were the weaponry of the time when the document was written, but they tend to waffle so it seems.

Case in point. Washington DC had a law restricting the possession of hand guns within its corporate limits. The SCOTUS, struck down the law which had been in existence since the mid 70’s, finding that it violated the 2nd Amendment.

Now, first since the right to keep and bear arms is tied to the phrase, “a well regulated militia, being necessary to the security of a free state. .  . .” one would think, that a originalist would assume this provision was drafted to secure the rights of the state to defend itself against. . .perhaps another country trying to keep it in bondage? Like George III perhaps? Or at least a federal government gone amok?

But alas no, neither the originalists on the bench nor the “strict constructionists” were troubled by the linkage and struck down the law as violative of the right to be arms.

Now another, and I would declare better way of analysis is the Living Constitution method, whereby we recognize that after 200+ years it is unreasonable to assume that any document can reasonably cover situations encountered today. It is worse yet, impossible to believe that our Founding Fathers could have drafted any document that could be stretched to accommodate what was unknowable and probably unthinkable to them.

Thus, proponents of this interpretative method look to the general tenor of the document in all its particulars and do their best to apply those principles and ideals to new situations. When we look a the DC handgun provision in this manner, an very different result can ensue.

Life in densely populated urban areas carry its own special dangers. Crime and violence are present to a much greater degree. The prevalence of weaponry, especially that of high range and increased potency, make it dangerous for all residents, not just those who are the intended victims. Keeping weapons for “protection” often doesn’t protect anyone, and leads to errors in judgment and the deaths of innocents. It is rational for the protection of the many that people be prevented from possessing easily hidden dangerous weapons.

Therefore the 2nd Amendment is subject to reasonable regulation, and that regulation can take into account the demographics of place.  In other words what is right for Philadelphia may not be right for rural Iowa.

Similarly in Roe v. Wade, using a different kind of analysis, the Court determined that an overall examination of the amendments suggested that there was a “theme” of privacy that was being protected, and under this guise, nothing is more private than the right to do with one’s body as one wishes, within limitations.

I think that seeing the Constitution as a basic blueprint enunciating ideals and beliefs is the better way to see the document. Thus, the Court’s job is to preserve those ideals and beliefs in an ever changing world. Sometimes what was legal for decades can no longer be sustained if the ideals and beliefs are to have any meaning.

That’s the way I see it anyhow. I see the originalists and strict constructionists merely echoing “conservative” values at the expense of those ideals and beliefs. It’s akin to following tradition when the original purpose  has subsequently been subverted. It’s time to change or eliminate the tradition rather than blindly adhering to rigid rules  that no longer lead to the intended purpose.