After a lamentable absence, Key of Key Issues has come back swinging with two opinionated posts worth discussing. The first is on the topic of abortion (which merits a discussion elsewhere), and the second at first appears to be on the recent ruling against teacher-led recitations of the Pledge of Allegiance in the public schools. That appearance is deceptive, because in the comments, Key reveals that the method used by those who opposed the teacher-led recitations is what she is opposing.
In her post, she writes:
We are so far removed from the intentions of the framers on this one.
I always hate it when I read or hear people discuss the “intention of the framers”.
We cannot read minds of those closest to us (otherwise the divorce rate would be far lower, or higher, depending on if you are an optimist or a pessimist), how can we hope to read the minds of other men, especially of those who died almost two centuries ago?
We often forget that the our fundamental governing document is a result of compromise, the Constitutional Convention was not a monolithic body carving the Word of Truth into stone. Relying on the “Founders’ intent” is rather simplistic.
Given that the Constitution itself is a compromise made between representatives arguably not even democratically elected by modern standards, why treat the intentions of that group as something that should rule over situations two centuries later that were not even dim dreams during the negotiations that resulted in the flawed Constitution.
Yes, I do call it flawed. What else can you call a document that encoded human slavery within it, and counted the slaves as a fraction of a person for the intentions of enumerating population for representation in the federal government in a compromise to gain the support of the states in the South?
Times change, societies change, yet what is constant is that everyone in a society has to compromise in order for a society to exist, otherwise you are left with the anarchist survival of the fittest scenarios that some right-wingers call for unknowingly at times when they haven’t thought their rants completely through.
In other words, compromise is fundamental.
Yes, compromise is unpleasant, but that willingness to compromise is the foundation of our government, the Constitution is merely a written version of the compromises made 220 years ago by a group of men who each had their own interests to protect.
In other words, the “originalist” school of Constitutional interpretation is fatally flawed, because they are calling for the impossible, reading the minds of a group of men who acknowledged to themselves they did not all think the same. Even if you could read minds, which mind do you read?
So how do we compromise so we can all live together? We have two avenues, one legislative and one judicial. Through the legislatures, state and federal (aka Congress) we are supposed to elect people to represent our interests. Sadly, it is very apparent that the interests these elected officials represent are those that will get them re-elected, whether it is a group that can help in financing the eternal campaign or other groups that can help in the election. The actual job of governing has gotten lost.
The power of the legislature is limited by the Constitution, the Bill of Rights itself was a compromise to get the support of those who were troubled that the governmental limitations enshrined in those first ten amendments were not a part of the main text of the Constitution. We should remember, the amendments making up the Bill of Rights do not grant rights to the citizens of the United States, they limit the power of government to infringe upon rights that were said to be inalienable in the Declaration of Independence.
Rights are meaningless if there is not a structure within which they can exist to be exercised. In an anarchy, the only “rights” are those you can defend from others imposing their will upon you. This is why we need government, to enforce the compromises that society needs to function. The problem with government is that it is made up of the same flawed humans who make an anarchy unworkable, and inevitably government power expands unless it is limited somehow.
In order to limit the tendency of government to turn tyrannical, the Constitution was writtene need interpretation of what governmental actions, laws, regulations, or other ways of mandating or limiting public behavior are infringing upon these rights that government exists to protect.
The famous (or infamous) checks and balances between the three branches of our federal government, the executive (aka the President), the legislative (aka Congress), and the judicial (aka the Supreme Court).
The old formula, worth repeating, is the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws.
Now we need to decide if “interpreting the laws” includes avoiding a tyranny of the majority (including a tyranny of politicians playing suck-up to interest groups instead of acting in the best interests of the nation as a whole) or not.
If your answer to that quandary is “no, it should not try to avoid a tyranny of the majority” then step carefully, for many of the freedoms we enjoy today were granted because of court rulings that arose from avoiding that tyranny and the concepts underlying those judicial opinions are now regarded as “normal” parts of society.
All parts of the system are there for a reason, and yes, they often appear to be completely dysfunctional. However, I must say that the courts are far, far less on the afflicted, tainted side than either the executive or legislative branches.
Perhaps we should keep our powder dry to engage the real problems.
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