Tuesday, February 9, 2016

The Constitution as Authority

I came across a news headline yesterday that interested me:  "The NRA Just Scored One Of Its Biggest Victories In Years."  I hadn't heard anything about this, so I checked out the article, which is on ThinkProgress.org so naturally it isn't going to like anything that benefits the NRA.  What interested (and, I'll be honest, irritated) me was not the content of the article but one phrase that says a recent Supreme Court decision "expanded the scope of that [the 2nd] amendment significantly — effectively creating a whole new area of constitutional law more than two centuries after the Bill of Rights was ratified."

Stop the presses!  The radical Supreme Court has dared to radically expand the meaning of a Bill of Rights amendment!  You might think that the author was a Constitutional originalist, imbued with deep respect for the Constitution as written, sceptical of those who want to modify it with the times.  I don't actually know the author's views on the Constitution, but I know that the side he supports -- "Progressives," as they call themselves, and as the website itself proclaims -- have had absolutely no problem with previous court decisions that modified the Constitution.  Otherwise, they would surely have complained at Griswold v. Connecticut, a 1965 decision that discovered a Constitutionally-protected right to contraception (nearly 2 centuries after the Bill of Rights was ratified, I might add).  Or Miranda v. Arizona, the 1966 decision that radically altered law enforcement across the country by forcing police to inform a suspect of his rights before interrogating him.  (Ironically, the standard formula has become ubiquitous on television programs so that it is hard to imagine anyone who isn't aware of those rights today.)  Or Gideon v. Wainwright, a 1963 case that found a government responsibility under the Constitution to provide legal defense for people who couldn't afford their own.  While the idea of helping poor people mount a legal defense is admirable, you would think some one of the Founders, living as they did in the very generation that the Bill of Rights had been debated and passed, would have realized that it required the government to furnish public defenders.  Or at least that someone in the hundred years since the 14th amendment had been passed would have realized that states have the same obligations as the federal government.

Or, if those cases didn't excite the attention of progressive originalists, what about Roe v. Wade in 1973?  In that case, William O. Douglas found a "fundamental right" to abortion that had somehow escaped the attention of everyone for nearly two hundred years.  And he had to do some digging to find it in “the protected penumbra of specific guarantees of the Bill of Rights.”  If the Supreme Court can find a fundamental right hiding in the penumbra of the Bill of Rights in 1973, it wouldn't be that shocking, one would think, for the Court to enlarge an already existing, well-defined right spelled out in plain terms in the 2nd Amendment.

Or, if one wanted a more recent example, the author must have been appalled at the 2015 case of Obergefell v. Hodges, which discovered that the government was legally required to license same-sex marriages.  How amazing that this had never occurred to more than a fringe group in the past; how even prominent progressives, including sitting president Barack Obama, had said that government should only recognize heterosexual marriages -- that is to say, "marriages" as they have always been understood until the enlightened 21st century.

What would the author of this article have to say about the Supreme Court's making such a radical re-reading of the Constitution and its amendments so many years after they had been decided?  Or is he only interested in precedent when it supports his own case?

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