The Constitution is not an idol

In battling the right-wing argument that the framers of the Constitution never intended to separate church and state because the … Continued

In battling the right-wing argument that the framers of the Constitution never intended to separate church and state because the precise phrase “separation of church and state” does not appear anywhere in the document, many opponents of religious entanglement with government acquit themselves poorly for two reasons. First, some–especially those whose identity is primarily invested in politics rather than secular values–are almost as fuzzy about the Constitution as the knowledge-challenged religious right. Second, too many advocates of secular government implicitly accept the idea that the framers intended the Constitution to be seen as a wordy straitjacket rather than a modifiable blueprint, subject to judicial interpretation, for a long-lasting form of government. I won’t use the expression “written in stone” because, as everyone familiar with the Bible knows, stone tablets can be broken. Then you have to trudge back up Mt. Sinai again to acquire another set of laws graven in stone but no less subject to human brekage.

As exhbit A for the shaky constitutional knowledge of many on the pro-separation side in public life, I present Chris Cooms, who left Christine O’Donnell with egg on her face in last week’s Delaware senatorial debate for not knowing about the First Amendment’s establishment clause. But later in the debate, Cooms himself could not name the five essential freedoms enumerated in the magnificent amendment that opens the Bill of Rights.

For the record: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances. I find it shocking –not surprising, just shocking –that any candidate for federal office cannot cite these basic First Amendment rights and cite them with conviction and understanding. No doubt Cooms believes in all of these freedoms, but it’s always better to be able to articulate the source of and rationale for your ideas than to blather on, as the Tea Partiers do, about the Constitution without knowing what it actually says, much less what it means.

No, the First Amendment does not say “peacably assemble in front of national monuments and in public spaces”–any more than it says, “separation of church and state.” It is up to the federal courts to interpret the Bill of Rights, and the entire Constitution, in light of changing circumstances and contemporary standards. Is it peacably assembling if you block traffic on a superhighway, which of course did not exist in 1787? Or if you gather on a streetcorner to insult relatives holding a funeral for their son who died in military action? Up to the courts.

Similarly, the founders probably never imagined a future America that included millions of practicing Hindus, Muslims, Buddhists, Pagans, and people who reject religion altogether. They crafted the Constitution at a time when there were only Christians, of various denominations, and a tiny minority of Jews. That is what makes it all the more remarkable that Christianity received no pride of place, and no mention at all, in the Constitution–at a time when most of the states still had laws requiring that office-holders be Christians (and often Protest Christians). Article VI, section 3 states flatly that “no religious test shall ever be required as Qualification to any office of public Trust under the United States.” This provision–every bit as powerful as the First Amendment–is mystifyingly absent from much of the uninformed debate about separation of church and state.

Nat Hentoff, a long-time First Amendment warrior, recalls an appearance on a panel at Pat Robertson’s Regent College in a recent column published by the Council for Secular Humanism. “The question was,” he writes, “‘Is this a Christian nation?’ Before we went on, previous speakers agreed, in a celebratory chorus, that this is clearly a historical fact. When my turn came, I suggested the audience look more closely at the fact that God is absent from the Constitution…Amid the hostile stirrings in the audience, I also told them to check out Article VI, Section 3…For the rest of the day, I was a pariah in the room.”

The proof that this is not an officially Christian nation with a Christian government lies in the very fact that backward-looking Protestant ministers, throughout the 19th century, always recognized that if God and Jesus were to be cited as authorities for American governmental power, the Constitution would have to be formally amended. This argument should be made openly and forcefully in poltiical debates–not confined to the pages of secular journals.

I would also, if I had been a senator asked to confirm Clarence Thomas, Antonin Scalia, John Roberts or Samuel Alito, have openly taken on the absurdity of the “originalist” argument that the Constitution can only be intepreted by trying to channel what was in the minds of the men who wrote it. In a 2002 address at the University of Chicago Divinity School Scalia applies this argument to the death penalty. The death penalty does not volate the Eighth Amendment’s prohibition of cruel and unusual punishment, he writes, because it was not considered cruel and unusual when the Constitution was written. To Scalia, the Constitution is “not living but dead–or as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.” If this line of thought is followed to its ridiculous conclusion, courts should be free to hand down death sentences for grand theft auto because horse thieving was a capital crime in the 18th century.

The framers might, instead of using the broad and modifiable “cruel and unusual” standard, have prohibited disembowelment and drawing-and-quartering as a mode of execution, because civilized sentiment was turning away from the time-honored practice of subjecting the condemned to maximum, extended pain before the coup de grace. But they didn’t do that, because they had seen standards of what is “cruel and unusual” changing within their own lifetime. In the past decade (Scalia dissenting, of course), the Supreme Court has prohbiited the execution of minors and of those with the mental capacity of chidlren. In the 21st century, the Court majority has decided, we consider it “cruel and unusual” for the state to excecute those who do not have the intellectual capacity to understand the consequences of their actions.

Too often, those who support the separation of church and state, and civil liberties in general, concede the validity of “originalism” and claim only that their interpretation of the Constitution is more original, more faithful to the intent of the founders, than the views of people like Scalia. This “I’m in closer touch with the minds of Geroge Washington, John Adams, Benjamin Franklin and John Adams than you are” argument is irrelevant. I strongly recommend that candidates like Cooms, and every member of Congress who cares about the Constitution as something more than a symbolic bludgeon, read Justice Stephen Bryer’s, Making Democracy Work: A Judge’s View, which presents a lucid and cogent argument against the originalist idolatry espoused by the right.

“You can think of this document laying down certain frontiers or borders,” Breyer said in a recent interview, “and we’re (judges) the border patrol…Life on the border is somethimes tough. And whether a particular matter–abortion or gerrymandering, or some other matter [such as] school prayer–whether that’s inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question.”

It’s not about what Thomas Jefferson, Washington, Adams, Madison or Franlin thought in 1787 (and their thoughts diverged sharply on numerous issues). It’s about the vision they had of a diffent kind of nation–one which, with regard to relations between religion and government, would leave people alone to practice whatever faith they wished, while permitting neither one nor all religions to exercise their civil will through government. Indeed, the idea of some ur-religion that would excercise a unitary will by incorporating all religions (pace, Karen Armstrong) is even more absurd than the idea that men in 1787 could have forseen exactly what society would be like in 2021.

The Constitution is important and marvelous not because it is a dead document set in stone but because it is living. It represents what human beings, not deities, do when they are trying to forge a new reality based on the will of “We the People.”

Susan Jacoby
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  • edbyronadams

    “You can think of this document laying down certain frontiers or borders,” Breyer said in a recent interview, “and we’re (judges) the border patrol…Life on the border is somethimes tough. And whether a particular matter–abortion or gerrymandering, or some other matter [such as] school prayer–whether that’s inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question.”True, the easy decisions never make it to the Supreme Court. The question is what yardstick or philosophy justices bring to the process. Original intent, as a philosophy, brings constraint on justices that I can understand. I would just like an articulation of an alternative, consistent philosophy from those who reject originalism so that we can judge it.The problem I see with the border patrol analogy and the courts is that they seem to err on the side of moving the border constantly outward, giving them more power to decide issues that should be left to the states and the people as stated in the Tenth. For example, when the legalization of medical marijuana passed in California and underwent review, the courts had moved the fences so far out that Breyer said that the federal mandate to regulate a product produced and consumed totally within state borders was obvious. It wasn’t even on the border of interstate commerce any longer.

  • laynel57

    Um … just a little historical note — when the framers wrote the Constitution, there were indeed Muslims in the United States (you state only Christians and a tiny minority of Jews).

  • WmarkW

    SJ: “If this line of thought is followed to its ridiculous conclusion, courts should be free to hand down death sentences for grand theft auto because horse thieving was a capital crime in the 18th century.”I think this exaggerates a bit. Stealing a horse often implied leaving a man stranded in hostile country with no provisions or means of escape. A more apt modern analogy would be a carjacking on a lonely desert road in which the victim later perished in the heat. We might well assign death for that.

  • timmy2

    Ed,”I would just like an articulation of an alternative, consistent philosophy from those who reject originalism so that we can judge it”Originalism provides a consistency philosophy the way Christianity provides an objective morality. I other words, it does nothing of the sort. Christians make the argument that without God we have no objective morality, which insinuates that with God we do have objective morality. But the truth is that no God belief has ever provided an objective morality. Thus far there is no such thing as objective morality with or without God because God’s words, even though written down for everyone to see, still need to be interpreted by the individual minds of men. Same goes for the constitution. Originalism provides no consistency because it still relies on the personal interpretation of original intent by whatever judge is presiding at the time. It is still guesswork, with no reliable consistency. So before you ask those against originalism to provide a consistent interpretation that we can all go with, you need to show that originalism accomplishes this goal, which it clearly does not. Christianity has never provided an objective morality, and originalism will never provide consistent constitutional interpretations by SCOTUS.

  • edbyronadams

    “Originalism provides no consistency because it still relies on the personal interpretation of original intent by whatever judge is presiding at the time. It is still guesswork, with no reliable consistency.”Inconsistency is a hallmark of the human condition. No philosophy will overcome that “problem”. The Constitution and the associated writings provide great insight into the intent of the original drafters and the later ratifiers of amendments. That provides the constraint of reasonably joining decisions with intent of the ratifiers of the supreme law. Without it, judges are relatively unconstrained in expanding power of the government over the people. The Constitution, especially the Bill of Rights, is about constraining government power. Power corrupts and many people, myself included, see the self aggrandizement of the courts as corrupting the idea of self government.

  • DanielintheLionsDen

    The cult of the Founding Fathers has always been curiosity to me. They did a very good job at writing a Constitution to get this country moving and politically competitive with Europe.But, they also made a couple of mega-blunders, which I won’t go into here.Needless to say, the Civil War corrected some of the Founding Fathers’ original mistakes.They were good, well-intentioned, earnest, honest, level-headed guys, but they were not Gods, and none of us living today should feel obligated to try and understand what they may have thought of a twenty-first century problem in the eighteenth century.

  • Susan_Jacoby

    I did not mean to imply that there were absolutely no Muslims (or, for that matter, adherents of other faiths) in the United States by the end of the 18th century. But they were certainly not numerous enough to constitute any sort of influential force in any aspect of public life. Jews, though their numbers were small, were influential, particularly in New York and Rhode Island. But the population as a whole was almost entirely Christian and largely Protestant.

  • areyousaying

    Education and health-care are “socialism” and taxpayer money is better spent on the American economy’s addiction to endless war, war profiteering and the military-industrial complex.Is this the right-wing definition of a “Christian Nation”?Poor old Jesus.

  • areyousaying

    “Conservative Christians” would cherry-pick the Constitution like they do their Holy Scriptures and which of their Commandments it is convenient for them to obey (violating their Ninth to call Obama a Muslim)Their idea of what the Constitution should be is no First, Fourth or Fifth Amendment rights for gay, Muslim and Mexican and “non-believer” American citizens. They are extremists and no less of a threat to our freedoms than the Taliban.

  • StevenTAbell

    Susan,You miss the point a couple of times. Assigning the death penalty for auto theft is not relevant to the “cruel and unusual” criterion: it is about making the penalty fit the crime. And, once again, assigning the death penalty to people who are mentally limited is not about “cruel and unusual”: it is about the ability to distinguish right and wrong. Conflating these ideas is mentally limiting in itself.But your whole essay misses the point if you think “originalist” means that modern judges must somehow “channel” the founders’ minds. The founders wrote a lot more than just the words in the Constitution itself. They very often wrote *about* what the Constitution said, thereby making very clear what they thought and how those words are to be understood. No supernatural “channeling” is needed.It is simply wrong for a judge to think it permissible to reinterpret the Constitution in the face of linguistic drift. It is also wrong for a judge to invent law where none was specified. It is sometimes right for judges to extract a relevant generalization, such as recognizing that the Internet is “press”, and therefore free, even though it does not involve paper or ink. The “Living Constitution” outlook slaughters our ability to know what *anything* in the Constitution actually means, as it converts legal discussions from exercises in reading and reason into mere displays of lawyerly tricks and sophistry. Try to tell me otherwise, and I will only laugh. Except that it isn’t funny.Regarding religion and government, we seem to be in agreement. And yes, it is something close to terrifying that so many who run for, or are already in, government offices know so little about the Constitution.Steven T Abell

  • globalone

    Areyousaying,Speaking of ObamaCare, I find it interesting that President Obama & Congress were adament that this was not a tax when they were trying to sell this nonsense to the American public. Now, with 20+ states in federal court arguing that the bill was unconstitutional, the federal government is arguing that it WAS a tax. Because, of course, Congress has the explicit power to tax.So, instead of being truthful and transparent with the public and stating that it was a tax, President Obama and Senora Pelosi took the usual route and acted like complete cowards.Got Hope? Neither do we.

  • DanielintheLionsDen

    globaloneIf insurance companies are required to insure anyone at anytime, then what is to stop everyone from caceling their insurance, and only reinstating it when they are sick?People like you want to mooch off all the rest of us, and get your health care for free.

  • DanielintheLionsDen

    StevenTAbellThe purpose of a judge is to judge. The assumption in having judges is that no law, not even the Constitution, can be written with such complete forthought and clarity that every possible, imaginable contingency, for all time, will be properly considered, but there are and must be certain contingencies that come up from time to time, that cannot be easily or clearly addressed without the judgement of a court.So, big deal! Let judges do their jobs and judge.The vast differences between the world of the eighteenth century and the twenty-first century are more than just “linquistic drift.” In fact, the change in language and the meaning of words is probabley the least of our worries, when it comes to making Constitutional judgements.

  • FarnazMansouri2

    As I mentioned on the previous thread, what enables the “church” to lobby is an exceedingly loose interpretation of “Free Exercise.” It is Free Exercise that enabled the “conscience clauses” and the prohibition against Establishment be damned. Lobbying and legislating via congress is tantamount to Establishment. When we have a Stupak and Nelson candidly stating that they will not sign off on health care of which the “bishops” do not approve, we have a questionable situation indeed.When we have the hands of prosecutors, judges, and police tied when it comes to pederast priests, we must pause and ask whether we truly are a secular nation or even have committed to that ideal.I ask once again, how is it that the Roman Catholic Church is legally deemed a “sovereign nation” in the US, around the world, and in the UN, and also one of several religions like any other. I would like to know how it can enjoy two statuses, the privileges attaching to both.Question. Why is it that Vatican Bank could not be sued by the Serbians, Jews, Roma, whose money Nazi priests stole and deposited in said bank under the ever watchful eye of St. Pius? These priests (150-200) tortured to death or incited the slaughter of 790,000 Serbian Orthodox, tens of thousands of Jews and Roma? Ans. The Vatican is a sovereign nation.As for this nonsensical “Founders” babble, it reminds me of science fiction, old science fiction.Still, I must wonder what the Founders would say if they read Valerie Dixon’s essay and thread last week. Jesus is a Marxist. Nope, Jesus is a Republican. Sorry, Jesus is a Democrat.In class today, I ventured that Jesus is a Met fan, a position, I maintain. I wonder what Ms. Dixon would say of a student who declared, “The J man is a Yankee. It’s obvious.”Having solved the Jesus identity problem, or at least narrowed the question, I suggest we ask who we are.

  • mrbradwii

    The constitution lives by being amended, not by being “reinterpreted”. The elegance of the document is that government is explicitly limited, it’s rights and authority spelled out. There are things that it can never, ever, no matter what, barring an amendment, do.Not so the rights of man. Man’s rights are innumerable and varied, bounded only by man’s imagination and ability to agree amongst his fellows what is acceptable behavior.Substituting a monolithic “right-enumerating” government for a monotheistic theocracy is a variation on the same mistake. It depends on who is pope to be able to figure out what’s legit. Courts ain’t popes. Hell, popes ain’t even popes. If you can’t make a sufficient generalization from the text, then there’s no grounds to evaluate the law, case dismissed, will of the people be damned.

  • FarnazMansouri2

    Susan,Steven Abell is correct; the issue with the mentally ill, as with juveniles, is proportionality.

  • StevenTAbell

    Hey Daniel.I agree with you that one of the jobs of judges is to fill in the cracks in something that can never be fully specified. But the Constitution is about (or supposed to be about) things that really don’t change, whether in in the Eighteenth Century, the Twenty-first, or any other. The Constitution is not just Law, it is Meta-Law: the Law about what laws can be made, and how they’re made. If it’s not perfect, that should be a surprise only to the very naive, and it can be changed when that’s truly necessary. If it’s not stable, that will turn out to provide a whole lot of surprises that you and everyone else will eventually regret.Steven T Abell

  • FarnazMansouri2

    The Constitution is neither necessarily reinterpreted nor, necessarily amended, every time change is demanded. For example, it was our “evolving standards of decency” that was cited in banning the death penalty for juveniles. It was we (or, more precisely, a number of states, along with other nations–which filed amicus briefs) that reinterpreted. The Supremes redefine, I think, more than anything. They redefine, extend, expand.

  • Secular

    Original intent is bunch of baloney that the right-wing-wing-nuts, like Scalia, Bork, Thoma, Alito & Roberts have foisted on us. They talk about original intent as though it is some kind of monolithic view when a law is passed. This utter sham, that Scalia pontificates about. i wonder how does he ferrets out the original intent of the makers of the law. Law making has been a sausage making exercise from time immemorial. So what happens to all the drafts, amendments and compromises that take place in making the law. Does one just incorporate the views as expressed by the majority of the legislators. What if these legislators vote for the law coming from entirely different directions or even opposite directions. What if the some of the legislators who were completely opposed to the bill were to vote for the law because of other inducements, how are their intents going to be factored into the ferreting exercise of original intent? It is indeed most dishonest horse manure, that has been ever sold.I look at Constitution is as someone said before the meta law. Which broadly defines what the laws should be and lays out broad principles of jurisprudence. Based on the current zeitgeist the SCOTUS should interpret the laws and the constitution. Constitution is a living document in the sense that the interpretation and reinterpretation of the it in the light if the present and not per late eighteenth century.

  • StevenTAbell

    Hi Farnaz.You say that the judges “redefine”. In other words, they make it mean whatever they want it to mean, regardless of whatever it was intended to mean.You make my point.Steven T Abell

  • StevenTAbell

    Farnaz,Defining X and deciding if X applies to Y are not the same thing.Regarding Roe v. Wade: I don’t think abortion should be illegal. But I’ve read Roe v. Wade more than once, and if this is supposed to be a shining example of Constitutional reasoning, we’re in trouble. The temptation to try to fix the world must be tremendous. But that’s not what the job is about.Steven T Abell

  • FarnazMansouri2

    Current knowledge, applicability (equal protection)Brown v. Board of Education”We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.”

  • Susan_Jacoby

    Regarding Steven T. Abell’s extremely interesting comments (a great contribution to this discussion), I don’t think that what the founders wrote about the Constitution they had written offers any real guide for judges making decisions today. First, the founders didn’t agree. You can read Adams, Jefferson, Madison, and Hamilton and find support for almost any decision you might make. They had very different views of the federal role, to say the leas. Second, the individual founders frequently disagreed with their own arguments. This is probably inevitable when you wrote as much as these highly intelligent men wrote. All legal punishments pose, on one level, an issue of proportionality. But this is not a “meta-issue.” It is specific and time-bound. Drawing-and-quartering was thought to be a proportional punishment for treason in the 16th century: it is not today. We take a very different view of the responsibility of the mentally disabled, and of children, today than we did 200 years ago. The “originalists” say: The Constitution doesn’t allow us to take a different view. Judges like Breyer say: “Oh yes it does. In fact, it demands that we reinterpret ‘cruel and unusual’ in light of contemporary standards.” I honestly don’t see how anyone can read the writings of the framers of the Constitution and think that they would have been “originalists.” It took them only a few years to begin battling over whether the Constitution allowed the creation of the Bank of the United States.

  • FH1231

    Susan wrote: “You can read Adams, Jefferson, Madison, and Hamilton and find support for almost any decision you might make.”Well this is the rub honestly. When judges make law with their rulings, we are ruled by 5 – 4 decisions based on the political leanings of a court. Lawyers/judges can find legal reasoning for any ruling they make…this philosophy of a constantly moving bar has the potential to usurp the power of the legislature.

  • DanielintheLionsDen

    StevenTAbellThe Supreme Court, so I understand, is an appelate court, that may review the findings of a lower court; or it may decline to do so.The Supreme Court only rules when it is requested to do so. It does not possess capricous power to change the Constitution or anything else; it reacts to conflict and turmoil that appeal to it for resolution. This system if by no means unstable.Because I am interested in many current affairs and controversies, I ofent engage in disucssion with people about these things. And I often hear someone cry out, “That’s unconstitutional.”But actually, something is unconstitutional only if the Supreme Court says it is; and if the Supreme Court never says one way or the other, then that is also its opinion.Just any old person does not get to declare what is and is not unconstitutional. They system of courts, with the Supreme Court at the top, is a way for our society to work out conflicts, without resorting to Civil War. So far, in our history, we have failed just one time.

  • DanielintheLionsDen

    The role that the Supreme Court plays in the American Constitutional system is inevitable, and the assumption of this role by the Supreme Court, and the recognition of this role by the Congress and the President, is, in large part, why our system of Constitutional government has lasted so long. If the Constitution would have been frozen in the eighteenth century, it would have been unworkable, even in the nineteenth century.

  • DanielintheLionsDen

    edbyronadamsStandards of decency, or cultural standards can be perceived by judges by way of an undefinable utilitarian process; that is, I suppose, what offering a judgement is all about. That is what judges do; they judge.I find it incredible that so many people here seek somehow, to curtail, or circumscribe the ability of judges to to judge.It there were some kind of perfect algorithm that would solve every conflict logically, according to prescribed rules set forth in law and in the Constituttion, then we would not need judges at all, PERIOD. But we do need them.Judges are the people whom we call upon to settle legal disputes. That is the purpose of judges and of judgements. What about that is so hard to understand?

  • timmy2

    Ed,”Inconsistency is a hallmark of the human condition. No philosophy will overcome that “problem””Yes, this was my point to you. I’m not the one who was asking for a consistent model to replace the originalism model. That was you. And the insinuation was, I guess, that the originalism model offered some consistency that the living constitution model does not.

  • WmarkW

    The Constitution is always evolving because the our cultural understanding of the role of government constantly is. The original Constitution frames a very weak federal government and strong states. This was only sensible when:a) the former colonies had little history of governmental ties among each otherAfter the Bill of Rights and a couple of other amendments to deal with obvious constitutional problems in the early 1800s, the only amendments for the next 100 years were three resulting from the Civil War by which time a) and b) above had fundamentally changed.Then there was a spate in the 19-teens, two of which, income tax and women’s suffrage, I consider the result of industrialization.Many of our modern Constitutional issues arise from the fact that today so much of our income goes and comes directly via government. Does Arizona have the right to enforce a federal law, if their state’s budget is negatively affected by federal non-enforcement? The Constitution doesn’t say.Griswold and Roe were based on the argument that family planning decisions are outside the scope of government to regulate. But should a welfare mother with 12 children have the same right?Does the First Amendment mandate that a school with three Muslim kids accommodate halal lunches, single-sex recreation, and prayer times?Does the Fourteenth Amendment guarantee the citizenship of an anchor baby?The Founding Fathers couldn’t even have imagined these questions. Their original intent can hardly be divined when both Sam Harris and Pat Robertson can cite Thomas Jefferson on their side.

  • DanielintheLionsDen

    “The question is how much power the judiciary should have and whether they should succumb to the siren song of power and reorder the nation as they see fit or allow the peoples’ representatives to take on that task.”Judges judge what is put before them to judge. How can it be any other way? That is a far cry from succumbing to a siren song of power.

  • Jihadist

    “You can think of this document laying down certain frontiers or borders,” Breyer said in a recent interview, “and we’re (judges) the border patrol…Life on the border is sometimes tough. And whether a particular matter–abortion or gerrymandering, or some other matter [such as] school prayer–whether that’s inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question.”*******************************************????Grand Mufti-cum-Supreme Kadi Breyer, Truly difficult being a border patroller setting boundaries from forays into the unknown by your people. They know not what they are venturing into beyond the frontiers that is set for them for their own security, safety, peace and public order. They know not that deliberations for your fatwas on what is an obligation, what is recommended, what is permissible, what is not recommended, what is prohibited based on interpretations of the Qur’an in the context of contemporary society is very, very difficult, but never a closed question for those in whose benefit you made them less they deviate from the Right Path and know not where they have transgressed. Oh how they argued that there is no limit on ways crime can be perpetrated, that there is no limit on new crimes, including identity theft and cyberterrorism made possible by ICT. How they contend “frontiers” are limitations and impediments of human progress and development. How they opined that laws have to keep developing, continuously expanding to address the limitless human capacity to breach mental, physical and developmental frontiers. How you try to inculcate in them that there be no transgressions of acceptable behavior, ethics and values as determined and defined by you. How they not understand that abortion is not recommended but permissible in specific situation and circumstances. That gerrymandering is prohibited but recommended if there are demographic changes. That prayers is obligatory for believers but school prayers is not. How they not understand that some of your fatwas and the meting out of harshest, most extreme hudud punishments for crimes are merely to be made example of as forms of deterrence. You, like Captain Kirk, is to boldly go where no one has gone before legally in the frontiers of human achievement and development that keeps expanding as the universe. You will be there to patrol borders, to set boundaries on obligations, on what is forbidden, permissible, recommended, not recommended, permissible but not recommended with regard to other planets and galaxies, their inhabitants and resources, and not to limit yourself by the boundaries of precedents, the interpretations of laws of yore. They know not the Qur’an is not an idol, idolatry is forbidden and the Qur’an is a guide for man. God knows best that you do what you must with reason and justness.

  • StevenTAbell

    Susan,First of all, thank you.If the Constitution is not in all regards comprehensive and unambiguous, and the if founders were not always of one mind, shall we just ignore them and make it up as we go along? I think not. But, to many people, myself included, this is what our current legal environment looks like far too often.The reason to invoke a constitutional republic is to create a legal environment that is understandable and predictable to the man on the street. That understanding comes from what the constitution says, or what its authors said about it. If there’s disagreement, we have judges to help us with that. But when constitutional law starts to feel like shooting craps, or an appeal to some esoteric crystal ball, then something is very wrong. This is what the people you deride as “originalists”, complete with scare quotes, are trying very hard to avoid.Regarding punishments, yes, there is always an issue of proportionality. But I think you still have not distinguished this adequately from the “cruel and unusual” issue. Cruelty is the creation of pain for the sake of creating pain. “Drawing and quartering”, which doesn’t begin to describe the entire procedure, is certainly in that category. None of the methods of capital punishment used in this country aim to create pain for its own sake: they all aim to get it over with quickly. If they are not always instantaneous, that is not by design. As for “unusual”, you might google “Raud the Strong” and “Eyvind Kinnriffi”. Punishments of this sort are both cruel and very unusual. We don’t do things like that: our punishments are categorically unimaginative. And yet the lawyers who argue against capital punishment in general always invoke “cruel and unusual”, when it is neither as we do it here. Capital punishment for murder is obviously proportional. Whether it is for treason is in some cases at least honestly arguable.Steven T Abell

  • AgentG

    Susan Jacoby is a true American patriot and this piece is a valuable contribution to the public discourse on politics and religion.However, those politicians who invoke religious motifs while campaigning for public office appear primarily interested in pandering to religious sentimentalist voters for their votes. I am not sure they consider the implications of their rhetoric on our democracy beyond the next election.And yes, those that would stand against separation of church and state do a great disservice to both institutions, and appear to have an understanding of neither one.

  • Susan_Jacoby

    “Cruel and unusual” is not merely about causing pain for the sake of causing pain. Mr. Abell’s distinction between proportionality and “cruel and unusual” is, in fact, a contemporary notion. Causing pain merely for the sake of causing pain was a highly approved form of punishment, considered proprotional for many crimes, throughout most of history. What was considered cruel and unusual (not identical) 200 years ago is quite different from what is considered cruel and unusual today. The very word “unusual,” which is quantitative rather than qualitative, suggests the inapplicability of “originalism” to judicial decisions today. Those who are agitated about the judiciary frustrating the will of legislatures, however, should indeed blame the founders. They didn’t want legislatures, or the executive branch, to have the final say on what is constitutional and what isn’t. And so, they bequeathed us Earl Warren and Antonin Scalia–men who view both the law and society quite differently (to understate the case). It is ridiculous to pretend that the differences between judges has to do with their legal knowledge rather than with their different ideas about the purpose of law in a democratic society. Yes, you can blame the founders for that.

  • DanielintheLionsDen

    Susan_Jacoby You are EXACTLY right!The judiciary sometimes frustrates legislative intent, by design, that is the whole idea, isn’t it? separation of powers? why are Supreme Court justices not elected, and why do they serve for life? There was a reason for these conditions, so that they might be somewhat removed, if not completely, from transitory nature of politics. And as for capital punishment in general, it has never been applied for purposes of justice; it has always been applied to assert the authority of the state, and for no other reason. So it is a little disingenuous for people to argue about “proportionality.” If a governing authority is firmly established, well-respected, and stable, execution of criminals is not necessary. I believe firmly that any one of the Founding Fathers would agree with my argument, if that is a necessary condition for having such an opinion.

  • StevenTAbell

    Daniel,If anyone here has said that it’s not part of the judiciary’s job to keep the legislature in line, I missed that. But I don’t think anyone said it. And, just as the legislature can’t make just any kind of law, the judiciary can’t use just any kind of reason to nullify a law. The reason needs to come from our Meta-Law, and not strain the bounds of credulity in its application.As for your bald assertion about the death penalty: you may like to believe that. But if you expect to persuade me, you’re going to have to do better than that.Steven T Abell

  • DanielintheLionsDen

    Steven T Abell” … the judiciary can’t use just any kind of reason to nullify a law. The reason needs to come from our Meta-Law, and not strain the bounds of credulity in its application … “But that is just a rule in your head, what you think. It is not a rule that applies or operates in the real world. What is the collorary to your rule? Defiance of the judiciary, in public protest, and then after that, armed conflict and insurrection against the government, because you disagree with the judiciary? What you are actually saying is that you do not like the thought processes of judges and therefore, they are not legitimate. But there is no feasible way to apply your ideas to the real world and real life. In addition, I am unfamiliar with the word “meta law.”

  • DanielintheLionsDen

    Steven T AbellJudges do not live in an ideal, imaginary world; they live in the real world.One criteria for being a judge is to render decisions quickly. A judge does not have an unlimited time to make a detailed lettered and intellectual study; a judge must gather up all the facts quickly and render a decison quickly. The judgements are sometimes more pragmatic and utlitarian, rather than ideally “just.”Since judges must also live in the real world, they cannot help but conider the effects of their judgements on society and on the future because they are human and not robots.

  • DanielintheLionsDen

    Steven T AbellIt is my belief that since the beginning of human civilization, almost every person executed by the power of the state was unjustly executed; Jesus is but one of many, many examples. In fact, the state executes people, not for purposes of justice but to assert the authority of the state. Therefore, modern discussions on the death penalty, in my opinion, amounts to nothing more than navel-gazing. In the United States, every single execution is a dual between equally matched factions, that represent the old idea of government execution, and the progressive idea that governments should not execute people. Therefore, each execution is delayed, dealyed, delayed, while these two facitons slug it out; there is little justice, and little state power to fear. Almost all modern states have dispensed with capital punishment, and so should we. Arguing an egg-head, what-would-the-founding-fathers-think point of view just makes a person look foolish.

  • WmarkW

    DitLD:”In the United States, every single execution is a dual between equally matched factions, that represent the old idea of government execution, and the progressive idea that governments should not execute people. Therefore, each execution is delayed, dealyed, delayed, while these two facitons slug it out; there is little justice, and little state power to fear.”The threat of capital punishment, though, can be an important tool in getting plea-bargain agreements, like one of James Byrd’s draggers who agreed to testify against the others in exchange for life imprisonment. The Unabomber was not executed because his brother agreed to turn him in if death was removed.I don’t loose any sleep that Timothy McVeigh or John Allen Muhammad are no longer taking up space.

  • Jihadist

    If anyone here has said that it’s not part of the judiciary’s job to keep the legislature in line, I missed that. But I don’t think anyone said it. And, just as the legislature can’t make just any kind of law, the judiciary can’t use just any kind of reason to nullify a law. The reason needs to come from our Meta-Law, and not strain the bounds of credulity in its application.- Steven T Abell******************************************The legislative body can pass laws by specified majority votes and processes. It can also amend the Constitution by the same process, and existing laws too. Laws can be repealed in the same way. There is the Attorney General’s office. It can and do draft and finetune the form and contents of specific laws and acts on behalf of the administration/executive for the consideration of the legislative on specific matters. The judiciary, specifically the courts, consider what is already enacted laws and ambuiguity regarding it in specific cases. They can’t and don’t challenge the legislative body, but only deliberate on matters pertaining specific laws and acts as brought by individuals or groups. Or on matters not quite covered as yet or fully by extant laws and acts. The “originalist” advocates of the Constitution sounds like the literalist advocates of the Holy Books. They go by the letter of the law (and are sometimes called conservatives) instead of the spirit of the law (the advocates and practioners sometimes called liberals or progressives). If you mean the Constitution and its companions so to speak (Amendments, Bill of Rights) as the collective “meta law”, I would understand that in the context of it being the fundamental principles, the guidelines, for all ensuing civil laws of the nation. Subsesequent laws may referenced to the “meta law” literally, or its spirit be maintained. “Meta law” are also more common internationally, such as the Law of the Sea, IATA, and still those are taken as much in the letter as well as the spirit of the law.

  • Jihadist

    Uhhh, by the way, on “meta law”, for example on covering a specific area, say on rights of the child or rights of women, there is no such “meta law” on those covering all 50 American states. It was left to state legislative bodies. There is however, a global “meta law” so to speak, on the Rights of the Child and the Elimination of All Forms of Discrimination Against Women in the form of Conventions formulated and under the auspices of the United Nations. Of course, state parties to those conventions are to enact their own national laws in accordance with the conventions. And of course, member states that don’t are not given corporal or capital punishment for not doing so.

  • edbyronadams

    Tim,”And the insinuation was, I guess, that the originalism model offered some consistency that the living constitution model does not.”Yes, the consistency of having a credible argument back to the intentions of the writers of the Constitution. If you become unmoored from that, it gives too much power to those farthest from the will of the people. They may exhibit inconsistency but they have a tether. The “Living Constitution” idea gives them the latitude to read the document like a Rorschach blot.

  • Jihadist

    Ah, those “metas”–they’ll get you every time. The great meta lawgiver, MetaGod, sayeth all law is “meta,” as is everything else. – Farnaz Mansouri******************************************:)Yes, those darn meta national for all states and/or provinces and supra international laws for all nations. As long as the meta laws metaphors and metamorphosise as needed and the supra laws don’t get subsumed too often by sub-par and mini-minor laws full of legalese fine prints and literal-originalist applications according to national and groups’ political and politicised needs.

  • timmy2

    Ed,”Yes, the consistency of having a credible argument back to the intentions of the writers of the Constitution”There is nothing consistent about that given that the intentions of the writers of the constitution are up for interpretation by any given justice. “The “Living Constitution” idea gives them the latitude to read the document like a Rorschach blot”No, it does not.

  • Freestinker

    Ed,Why would the framers choose such ambiguous terms and phrases if their original intent was to create a static document that would not change with the times? Wouldn’t a better strategy be to choose very precise terms and phrases that would require official amendments to change?I think they purposefully chose ambiguous terms and phrases because they knew that approach would keep the document relevant to the people as times change.I agree with Timmy2 that Constitutional originalists, much like fundamentalist Christians, have chosen a standard that they claim is completely clear and objective but in reality is still vague and also requires plenty of interpretation. Conveniently, by choosing this kind of “standard”, they become the only legitimate arbiters of textual meaning.

  • DanielintheLionsDen

    Part IIIFrom these conditions emerged the key mechanism of the American political system which assured the success of the Constitution: compromise. The Constitution is, itself, a compromise among many factions, who do not wish to pursue their interests to the total destruction of their opponents. This is what distinguishes our Constitution from the first French constitution, or from the former Soviet constitution. In addition to being a compromise, the Constitution operates within a society in which the mechanism of compromise is widely promoted and sought after. During the French Revolution, power shifted abruptly from one extremist faction to the next, each seeking to undo the work of the previous faction, to gain the upper hand, and to destroy their opponents through terrorism and mass executions. No constitution could operate under these conditions. In the former Soviet Union, all power was concentrated in a single party which controlled all government functions, without opposition. Under these circumstances, no constitution was necessary, but any constitution would do. In fact, a constitution cannot operate with meaning and purpose except in a culture of compromise, where several moderate factions challenge each other for control, and where each faction operates with political moderation, with assurance and trust that its opponents will do the same.

  • DanielintheLionsDen

    Part IIThe former Soviet Union had a Constitution which looked good on paper, but did not, in fact operate. In fact, many countries throughout the past 200 years have instituted many constitutions of varying degrees of quality, with some successes, but many more failures. Even when a constitution is modeled after ours,that does not assure that it will be successful. Why don’t they all work as well as ours? Because no constitution, including our own, has any power at all. Our Constitution, any constitution, is just a piece of paper; it is just a string of sentences. The power does not emanate from the ink or the paper. In the eventual success of any constitution, other factors come into play. And yet, our constitution has continued until this day. More than the written documents themselves, the failure of that first French constitution and the success of ours has to do with the conditions of each country when they were instituted, and the suitability of the document to the society over which it was to operate. For example, when the French Constitution was written, the French nation was deeply divided into radical factions, each intent on the complete destruction of their opponents. The legal system was fractured and dysfunctional. France faced a national emergency as all law and order collapsed and foreign armies threatened.In contrast, the American Constitution was implemented in times of normalcy, after the national “emergency” had passed. Not so much depended on the success or failure of our Constitution. English law was firmly established in the state governments, which ruled with stability. Even if the Constitution had failed, what would have been lost? Our future greatness as a nation would have been lost, but that was, as yet, unknown. Certainly, it was recognized that unified under the Constitution, the United States could compete more favorably with the other European powers. But at the time, it would not have been catastrophic for the Constitution to fail. Under these circumstances, there was a sincere effort to devise a practical constitution, acceptable to many factions, and there was time to debate and discuss its adoption, and there was a willingness to put it into effect and to see if it would work.

  • DanielintheLionsDen

    Does the Constitution really make us do anything?Part IPeople often refer to Constitutional “obligations and responsibilities,” and a Constitutional requirement that this or that action must be taken. Many Americans say that next to the “Holy Bible,” they consider the Constitution to be the most sacred of documents. In discussion of controversial matters of the day, there is frequent reference to the “Founding Fathers” and what must their intentions have been when they chose certain words or phrases over others for the Constitution. To win arguments, people appeal to the Founding Fathers’ inferred or imagined opinions of this situation, as if they were alive today. There seems to be general recognition that the Founding Fathers had a mystical infallibility when they wrote the Constitution, and that the Constitution is a divinely inspired document which exerts a spiritual influence over the operation of the Federal government. But is any of this really true? Is this really why our Constitution has worked so well, for so long? Does the Constitution really make us do anything? The Constitution was devised and written as a way to remedy the disorganization among the original states which had recently won their independence from British rule. It was written during peace time, when there was much discussion about the kind of government the United States should have. In writing the Constitution, the Founding Fathers did not attempt to re-invent the world; the Constitution was founded on the English legal system which prevailed in America at that time. It was tailored to the 18th century society in which it was supposed to operate; yet it has proven exceptionally adaptable to the ever changing societies of the 19th, 20th, and 21st centuries.But the Founding Fathers were not infallible. The Constitution has some rough spots and some out-right failures. One rough spot is the method of electing the President. In the original Constitution, the winner of the election would be the President, and the runner-up would be the Vice President. This was seen almost at once to be a mistake since this scheme would place political enemies at the number one and number two executive positions. Correcting this mistake was the first amendment after the Bill of Rights. The Founding Fathers failed completely with their handling of the question of slavery, recognizing the legal institution of slavery by counting each slave as 3/5’s of a human being and postponing the resolution to a later generation. These failures demonstrate that, although they tried very hard, they made major mistakes; and that we need not necessarily appeal to their wisdom on every Constitutional issue.

  • WmarkW

    “Does the Constitution really make us do anything?”It makes us do SOME things. Antonin Scalia voted to overturn the anti-flag burning laws as protected speech. He didn’t enjoy it.

  • Secular

    It makes us do SOME things. Antonin Scalia voted to overturn the anti-flag burning laws as protected speech.

    Antonin Scalia, is for an original Intentist is a Catholic-Christian-State-Corporations-know-what-is-best bigot. I have rarely seen a judgment in which He did not favor Religion over secularism, established Judea-Christian tradition over other tradition, Sate over individual, Corporation over state, Corporation over individual. This thug ought to be impeached along with his three lackeys namely C Thomas, J Roberts, & S Alito.