Skip to main content

That's Not Constitutional!


If it weren't such a serious problem, it would be laughable about what some people think is and is not Constitutional these days. A misunderstanding of constitutionality will lead to legal disaster.

con·sti·tu·tion·al
adj.
  1. Of or relating to one's physical makeup.
  2. Of or proceeding from the basic structure or nature of a person or thing; inherent.
  3. What the judges say it is
In the previous definition, taken mostly from the American Heritage dictionary, I inserted definition #3, just so you can see how absurd it is.

But there are many who say these days "That's not constitutional!" when they really mean "I don't like that!". Constitutionality is not based on emotion, but on the Constitution. If the Constitution says it, it's Constitutional, if it doesn't it's not. Constitutionality cannot possibly mean simply what the judges say it is, or all legality and lawfulness will eventually break down into a complete disrespect for law.

Perhaps the most absurd claim to unconstitutionality that I have seen is one with regard to the Electoral College. In point of fact, Article II Section 1 of the Constitution discusses the office of President, including how he or she is to be elected. The several states are to determine how presidential electors are appointed. The electors are to choose the president. So it's very clear, isn't it? "That's unconstitutional!" A reply to the above-mentioned article on unconstitutionality states:
One could argue that the Electoral College is no longer necessary or is ineffective in the electing of the President, but it is ridiculous to argue that it is unconstitutional when it is clearly in the constitution...
Robert H. Bork should be a Justice on the US Supreme Court, because he clearly understands that the Constitution is what the Constitution says, not what the judges say it is. However, those who interpret life emotionally--Liberal Democrats--clearly understood that he would respect the Constitution in his decisions, so they hounded him until he withdrew his nomination. Mr Bork explains succinctly, in his book The Tempting of America what happens when judges let their opinions run wild.
When powers are shared...the Constitution is usually explicit on the subject. There is no faintest hint...that the judiciary shares any of the legislative power. (p 4)

...when a judge realizes that in the case before him his strongly held view of justice...is not embodied in...any provision of the Constitution...[h]e must then choose between his version of justice and abiding by the American form of government. (p 1)

The democratic integrity of law...depends entirely upon the degree to which its processes are legitimate.

Either the Constitution and statutes are law, ...or they are malleable texts that judges may rewrite to see that particular groups or political causes win. (p 2)

It is common today for demonstrators to demonstrate in front of the Supreme Court instead of Congress, believing that legality has little to do with their demands.

Politics has nearly everything to do with everything these days, unfortunately. But we cannot afford to let politics drive everything we do. We must let truth rule the day. The rule of law is truth. Rule by judges is destructive politics.

It is important for us to know what really is and is not constitutional and expect it to be interpreted and enforced correctly and equally--not expect a small coterie to change it for us just because "I don't like that!"

Comments

Post a Comment

Thank you for commenting. If you have a Google/Blogger account, to be apprised of ongoing comment activity on this article, please click the "Subscribe" link below.

Popular posts from this blog

The Inhumanity of Bob Lonsberry: Waterboarding, Concentration Camps, and the the Bataan Death March

KNRS 570 radio talk show host Bob Lonsberry advocated waterboarding and other forms of torture during his show on April 21, 2009. More grotesquely, he was beaming with pride about his advocacy campaign. It's difficult to imagine then, that, by the same rationale, had Lonsberry been a German at the time of Hitler, or a Japanese during the Bataan Death March, that he would not have advocated torture of Jews in the concentration camps or the bayoneting and shooting of American soldiers on the Bataan trail. Torture, Torture, Everywhere! Nearly 80,000 American soldiers were captured by the Japanese in the To contemplate a discussion about whether or not torture is legal or whether it even works, it is first required to come to the conclusion that 'I am a child of God, but my adversary is a monkey'. Phillipines in 1942 and forced to march with no food and very little water for six days. If a man stumbled, if he didn't respond quickly to a command, or if he tried to get wat...
50 comments
Read more

School Vouchers: "The Bramble Memo"

$429 million? What? Where? The legislative fiscal analyst for the State of Utah calculated the costs to the public schools over the next 13 years if school vouchers are implemented. It said the costs would be $5.5M in the first year, and $71M in the 13th year. Suddenly, the number I have started seeing thrown around was $429 million, the total costs for vouchers over 13 years. Where did that number come from? Enter the mysterious "Bramble Memo". In the past few days several of us (Jeremy, Utah Taxpayer, Craig, Sara, Urban Koda, Jesse, and me) have (sometimes?) enjoyed a lively discussion about school vouchers in Utah . Jeremy clarified to me the costs of the venture by linking to a copy of the Utah Legislative Fiscal Analyst's Impartial Analysis (LFA) of the costs of Vouchers , found on "The Senate Site". In my previous voucher article, I quoted some of Lavar Webb's article from last Sunday's Deseret News, wherein he stated that those total costs ...
66 comments
Read more

What's Your Reaction to California's Decision on Same-Sex Marriage?

Yesterday a "Republican-dominated" California Supreme Court struck down state laws against same-sex marriages. The LDS Church issued a press release, calling the decision "unfortunate". I agree, but not for reasons you might think. Did the California Court make the right decision? Update 5/17/2008 : California decision does not affect prohibitions against polygamy and marriage of close relatives. Why not? Government should not sanction same-sex marriages for the same reason that it should not sanction heterosexual adultery--such activities tend to be destructive to the family as the fundamental unit of society. Before you get too far into reading into my words, let me echo and agree with something that Madeleine Albright wrote in her recent book, The Mighty & The Almighty (one of the better books that I have read in a long time): I oppose discrimination against gays and lesbians and am convinced that heterosexual adultery is a greater danger to the institu...
67 comments
Read more