My concern in this brief essay is the United States constitution. A wonderful essay by Roger Rosenblatt in a special Fall issue of Life Magazine (p. 9-32) forms the heart of my reflections. My concern derives from the progressive part of the Left that questions the basic goodness of the Constitution.
Frederick Douglass called it, “a glorious liberty document.” Patrick Henry said, “The Constitution is not a document for the government to restrain the people: it is an instrument for the people to restrain the government - lest it come to dominate our lives and our interests."
On 2nd Amendment: Most justices held that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home, and that “good cause” requirements such as the one implemented by New York are unconstitutional because they “prevent law-abiding citizens with ordinary self-defense needs from exercising” this right in public. In doing so, the high court explicitly rejected the interest-balancing approach relied upon by many lower courts when analyzing Second Amendment cases, which often results in courts upholding gun control laws under a standard known as intermediate scrutiny.
If we go to the Fourth Amendment, it curtails any curiosity of the government about us.
If we go to the Fifth Amendment, a remarkably sweeping declaration amounts to protection for the individual of the vast prosecutorial and condemnatory power of the state. Authors of the Constitution, themselves only recently freed subjects of a heavy-handed empire, suspected that all government were capable of the worst. They especially feared the state’s terrible power to thrown them into dungeons and forget them, to torture them into confessions, or to judge them summarily, with no charges and no witnesses, and seize their lands and possessions. This amendment is an incantation against despotism.
The Ninth Amendment suggests a right to privacy in that it affirms that the enumerated rights are not all the rights that citizens may have. The best-known case to interpret the amendment in this way is Roe v Wade. It legalized abortion in 1973. Though the ruling was based on the 14th amendment, in a concurring opinion, Justice Douglas called this amendment a protective mantle guarding freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. These considerations were set aside in 2022 in the opinion written by Justice Alito.
Justice Alito, writing for the court, capsulized the many errors of Roe as follows: The court incorrectly decided Roe, but that decision was more than simply wrong. It stood on exceptionally weak grounds. Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to ‘viability’) was never raised by any party and has never been plausibly explained. “In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” Thomas wrote in his concurrence. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” The point Clarence Thomas is making is that there are other issues on which the Court has taken away the rights of democratic institutions to engage in a process of public discourse to resolve disputes, such as definition of marriage and so on.
The Tenth Amendment reserves for the states or the people states powers not delegated by the Constitution to the federal government. During the summer of 1789, as Congress debated the amendments, Samuel Adams was so impressed that he dashed off a letter. This amendment meant that people may clearly see the distinction between federal powers and the sovereign authority belonging to the several states and the personal rights of the citizens. He believed that regulation of diverse constituencies best occurred locally.
The Fourteenth Amendment affirms that persons born or naturalized I the US are citizens of the US and of the state in which they reside, but further affirms that no state shall make or enforce any law that shall abridge the privileges or immunities of citizens, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of these laws. The guideline accepted by most legal scholars is that states may grant greater rights than do the federal Bill of Rights, but never less.
John David Davison said that prior to the Civil War amendments, Democrats asserted that the inherent rights of white men, not just property rights but all of them, required the complete denial of the rights of black Americans. Today, Democrats assert that the inherent rights of women require the complete denial of the rights of the unborn. Justice Roger Taney in his infamous 1857 Fred Scott decision captured this view best when he argued that when the Founding Fathers wrote “all men are created equal,” they did not really mean it. They only meant white men are created equal. If they had really meant that all men are created equal, including black men, wrote Taney, the Founders “would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” Taney’s view, and the view of all pro-slavery Americans at the time, was that the Constitution held no protections whatsoever for black people. They had zero rights, and indeed only the formal recognition of this could fully vindicate the constitutionally protected rights of southern slaveowners. If a white man could be equal to a black man, then a white man was nothing: one could enslave, segregate, and deprive the white man just as whites did the blacks now. The inherent rights of the white man depended on the denial of all rights to the black man. That is why, three years after the Dred Scott decision, the southern slave states seceded from the Union following the election of Abraham Lincoln. If the constitution were to curtail or prohibit slavery, even in the territories, southern slaveowners believed it would destroy their entire way of life, and with it their constitutional rights. Given the stakes, and the principles in question, they felt they had no choice but to secede.
The goodness of the Constitution resides in the ideals it embodies, its possibility for amendment, and even in the correction that the Court can make of itself.
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