I haven’t been able to take but a cursory look at all of the posts on this (very impressive) thread, so please forgive any of my observations that may be repetitious.
First, allow me to bring all of your sublime arguments down to a more ridiculous level for just a moment:
I had minor eye surgery this morning, and am required to do little physical exertion for the next few days. This afternoon, with a patch over the healing eye (which is my good one :) I sat down to ‘listen’ to daytime television for a while (something I never do).
What struck me even more than the inanity of afternoon programming was the low level of afternoon advertising.
One commercial in particular stood out as the most egregious of all (but still representative of the majority of those that I heard). It was a commercial for ‘the injury lawyer’. The injury lawyer himself, asked, more than once, ‘Have you been injured in a car accident? As the result of a fall? As the result of someone else’s carelessness? If so, call 1-800-XXX-XXXX. I will see that you are given access to your most important right – the right to MONEY!’ (No, I kid you not.)
Apparently -- at least through the eyes of those who schedule daytime television advertising -- the majority of viewers at that time of day are (probably unemployed) citizens who delight at the prospect of taking advantage of ludicrous legal/judicial precedents, and verdicts handed down by juries who are clueless as to their long-term ramifications, in order to line their pockets without having to exert themselves other than to pick up the phone and solicit a personal injury lawyer to extract undeserved money via the aforementioned ‘system.’
What hit me right between the eyes was this attorney’s ludicrous, self-serving promotion of the idea that our ‘most important right’ is ‘the right to money.’
I asked myself, (1) How can any reputable attorney stand before a television audience and spew such nonsense? (2) Do state bar exams simply rely on fragile legal/judicial precedent, or is a thorough knowledge of the U.S./state Constitution required as well?
So I looked up three examples of recent (February 2004, July 2004, and February 2005 New York State) bar exams – including both the eighteen included theoretical essay questions and thirty-six sample candidate answers.
Included in the sample answers were ten references to either U.S. or state constitutional rights – and ten references to case law. So these candidates for the bar allowed both case law and the Constitution (either U.S. or state) itself approximately equal weight in their answers.
My question now is, ‘What happens to these attorneys once they have passed the bar?’
My suspicion is that the large majority of them loose sight of Constitutional parameters.
I believe that the most erosive threat to modern American legal/judicial purism is the fact that the Constitution, more often than not, now accepts a back seat to the convoluted inverted pyramid known as case law.
Not infrequently, the Supreme Court now issues rulings that exalt what appear to be a brand new Constitutional principles (recent examples of which can be found in Lawrence v. Texas and Kelo v. New London, as well as numerous decisions that incorporate the blatantly unconstitutional role of international law). Journalists and members of academia then scramble around to unearth several dozen self-proclaimed ‘experts’ who are called upon to convince the citizenry that this particular area (take your pick) of the Constitution has existed for more than two centuries, and we were simply either too lazy to apply it, or the necessity to apply it never arose until now.
The fact that the very explicit words of the document defy the so-called experts’ novel, new interpretation is irrelevant. And we are led to believe that the Framers’ words are extraordinarily malleable -- written by men who surely and intentionally left us some ‘wiggle room’ to apply their precise blueprint ever more liberally as time passes. The idea of a ‘living Constitution’ snakes its way into the judicial process here. And decisions made under the philosophy of a ‘living Constitution’ too often form the foundation for stare decisis law – with each such new decision further empowering its supporters … and further diluting the Framers’ original intent.
Yet, on the other end of the spectrum are those attorneys, judges and citizens who have actually read, comprehend, and revere, the Constitution. They should (IMHO) view stare decisis law as a slap in the face of Article V, because Article V represents the Founders’ wise and visionary argument against the creation of a mountain of ludicrous, and often contradictory, case law.
They specifically authored Article V so that, were their ‘vision’ to prove to be inadequate, or not sufficiently explicit, for the American legal/judicial system decades or centuries hence, concrete (as opposed to nebulous and contradictory) changes could be made by an orderly representative voting process, via amendments.
In that way, and that way alone, is our Constitution a ‘living document.’ Any other interpretation of that term is a politically-motivated scam.
And to the degree that our courts rely on flimsy case law (many examples of which are blatantly unconstitutional, and many examples of which directly contradict others), and embrace the belief that the Constitution is a ‘living document’ (other than as strictly defined in Article V), the judiciary is condoning … even promoting … its own usurpation of Constitutionally-ordained executive and legislative powers (and, indirectly, the personal freedoms of every American citizen – present and future).
~ joanie
Outstanding essay, joanie-f! The above obervation further substantiates YHAOS' observation that our system of government has become a de facto, if not de jure, oligarchy constituted by nine black robes exercising virtually unlimited authority by means of a simple majority vote. They issue the marching orders, and we better march when they do. As long as this situation is allowed to stand, we can no longer say that the American system of government is a democratic, constitutional republic -- or that we are any longer a free people.
I wholly share your outrage over the "ambulance-chaser's" TV commercial, and its suggestion that the people's most important right is the right to money. You might as well institutionalize theft, and say it's okay to so do.
Which brings to mind some lines from Solon:
Pallas Athene, whose hands are stretched out over our heads, mightily fathered, protects us,Pallas Athene, of course is the goddess of wisdom, embodiment of reason, champion of the divine Logos, and the divine protector of the polis of Athens....
But the citizens themselves in their wildness are bent on the destruction of their great city, and money is the compulsive cause.
The leaders of the people are evil-minded. The next stage will be great suffering, recompense for their violent acts....
Some people tell me they worry that the United States will go down to its demise on the model of imperial Rome. I suggest on such occasions that the more likely model is the fall of ancient Athens. Solon put his finger on the crucial problem in the quote just above.
In his own time, Plato railed against the irrational disorder of the people. For he held that the polis (i.e., political society) is "Man writ large." And so no political society could be better than the general quality of the "human material" that constitutes it. And no amount of legislation could ever succeed in remedying the ill social effects of the profound defects of a disordered populace.
I also whole-heartedly agree with your take on the so-called "living constitution." It should be obvious that any constitution that changes gratuitously and frequently could rationally even be considered a constitution. Article V is what makes the constitution a "living document"; not the self-interested tinkering of "innovating" progressivist judges, grinding out case law reinforced by the doctrine of stare decisis....
Thank you so very much joanie for your kind and gracious words about my little essay here. But surely you recognize how desperately I am in need of a competent copy editor!!! :^)
Thank you once more for your magnificent post-essay!
.....Alexis de Tocqueville, Democracy In America, Volume I, First Part, Chap. VIII, pg 152
"I believe that the most erosive threat to modern American legal/judicial purism is the fact that the Constitution, more often than not, now accepts a back seat to the convoluted inverted pyramid known as case law."
It’s not just the Supreme Court, or all the Court system, which is composed of “bad citizens”; it is the whole of the legal profession. It is not that they (the legal profession) are cruel to their pets, indifferent to their spouses, abuse their children, are atrocious neighbors, ignore their civic duty, or fail to give alms. It is their attitude toward the Constitution, just as you say, that makes of them bad citizens. Lawyers from both sides of the bench, have ceased to regard the Constitution as a rock upon which is founded the justice due a free people. Lawyering has become little more than a exercise in constitutional deconstruction designed to further personal ambition by developing case law contrary to constitutional principles.