Constitutional law is what we call the burial mound of judicial policy preferences under which America’s founding charter lies. It exists now largely as the trappings of ceremonial tribute. For the living are far more inclined to flatter the dead than follow their direction.
That’s why, for all their earnest good-intent, the constitutional Ghost Shirters are no more capable of winning a war they don’t understand than their pallets of 5.56 are of singing God Bless America. A man who pledges fealty to an inanimate object inevitably becomes the slave of its interpreter.
And what interpreters we have.
You’d think Anthony Kennedy and crew would grow a bit sheepish at their expedient paeans to platitude. It’s not as if they are much veiling the exercise. Even meager bloggers are capable of producing florid justifications for favored social diktats. Though unlike Supreme Court justices, they’d generally be too embarrassed to suggest the mandate of hidden text in doing so.
That’s why every SC nomination is fought tooth and claw. Because it is for a seat not on a court, but a nine-man legislature whose laws can not be overwritten but by the red pen of revolution. Though stoic indifference might work just as well, and should certainly be taken up more often. As Andrew Jackson allegedly said of the Chief Justice. John Marshall has made his decision; now let him enforce it.
Though dealing with constitutional law as a social force rather than a fly hatchery obliges Americans into some interpretations of their own. I realized this upon reading of the supreme court’s refusal to intervene in the hate-rifle bans of Connecticut and New York.
Now I very much support the right of each state’s citizens to forge a society that best fits their own unique temperament. Those that don’t like the results would ideally have 49 other choices from which to select. This being a tolerance for diversity that the citizens of New York and Connecticut themselves have historically been loath to reciprocate.
However, in context of prohibitions there is the second amendment to consider, which contains some apparently illegible words. If chronology is correct, they were written even before the New York assault bullet ban. Which is very interesting in that the Supreme Court has declined to validate an open-text provision from the Bill of Rights.
Let’s compare that position to the Texas ban on abortions. As you may possibly know, abortion doesn’t appear in the Bill of Rights, or anywhere else in the constitution that is perceptible to the naked eye. So you can imagine how the Supreme Court must have laughed a challenge to the Texas law right out of its chambers. Exactly.
By a 7-2 split, the court tossed out the Texas ban in Roe v. Wade, thus mandating the availability of abortions across the land. The justification for this finding was the 14A due process clause, which states: Nor shall any State deprive any person of life, liberty, or property, without due process of law. It may not be obvious what ground they were standing on here, but look closely at that word, property. Eight letters, just like abortion. So if you substitute one for the other it says “life, liberty, or abortion.” And you can’t deny a person any of those things without going through a proper due process–which passing legislation according to long-established procedures plainly is not. Hopefully this clarified the court’s logic.
Though to summarize: state bans on a thing that does not appear in the constitution are unconstitutional, while state bans on a thing explicitly protected by the constitution are not. Thus according to current jurisprudence, a gun owner may be certain he is on sound legal footing only if his rifle is used to perform abortions. I never said the constitution was simple. But here’s a premise that is: western civilization is carried in the souls of her children, not on an ignored scrap of paper.