Friday, June 13, 2008

Newsflash: We have a constitution

Yesterday, in a 5-4 ruling, the Supreme Court ruled that we do -- in fact -- have a constitution. 

I don't know why, but very few people understand why we have a constitution, or even what the Constitution is. Shockingly, this includes many politicians and political leaders. It is not really that hard to understand.

It is not hard to understand what laws are. They are rules. Of course, people have different relationships to laws and rules. Some think that they only need to follow them if they might get caught/in trouble if they don't. Some think that you always have to follow them, not matter what. Some think that they can flout them whenever they are inconvenient for them. Some think that they are bound to follow laws as part of social contract, even then they inconvenient. And some think very deeply about the morality of particular laws and feel morally bound to disobey immoral laws. 

Too many people think of the Constitution as simply a set of laws, albeit and old set of laws. That is not correct.

At its most fundamental, any state's -- in the sense of county -- constitution is the basic blueprint for its government. It defines the rules by which the government operates. It laws out the powers and authority of that government, and its limits. As such, it is supreme to other laws that are made by that government, and if any of those laws fall outside or violate the government's constitution, those laws are invalid.

The United States Constitution has a Bill of Rights -- the fist ten amendments -- that guarantee protections for certain rights. These are particular rights that the people are assured, that the government cannot violate. These are not the only right addressed by the Constitution, but they are the most commonly cited. (Actually, originally those were only protections from the federal government, but they were eventually extended to apply to states, as well.)

Not only is the Constitution supreme to regular laws -- and to states' constitutions, as well -- it is harder to change. In fact, it is intentionally difficult to change. The usual process is for 2/3 of each house of Congress to pass an amend, which sends it out to the states. If 3/4 of the states approve it, it becomes an amendment. However, it is not impossible to change; it has been changed seventeen times since the Bill of Rights was passed. 


To really understand the Constitution, you have to think about when it was written. The Founding Fathers -- certainly the elites of their times -- had recently broken away from a tyrannical king. They were afraid of the powers of the state, of the ways in which the state could overwhelm the rights of individuals and overstep what was appropriate. They also were going through the failure that was the Articles of Confederation (i.e. USA 1.0). They knew that the country needed a stronger central government than the Articles allowed. The Constitution and the Bill of Rights really recreated the country (USA 2.0), accounting for their fears of uncheck governmental power and concern about the dysfunctions of a confederation. The Civil War Amendments extended the protections of the Constitution to apply to the states, further centralizing power (USA 2.5?). 

Those who argue against the protections of the Constitution are not simply arguing with liberals or Democrats. They are arguing with the founding fathers. They are arguing against the lessons of the Civil War. And they are usually arguing to expand state power and limit individual rights. 


An example: No Religious Test Clause

Most people don't know this, but the Constitution expressly forbids any religious tests to serve in any office or position in the government. Jews can be judges. Catholics can be clerks. Muslims can managers. The government may not bar anyone from any position in the government because of their religion. 

It is easy to imagine some people saying that Muslims should not be allowed serve in the CIA, or that fundamentalist Muslims should not be allowed to serve in Department of Homeland Security. However, the fact of their religions cannot be used to keep them from a governmental position. This is not a problem because we are not at war with Islam or even Fundamentalist Islam. There are many fundamentalists Muslims who are not at war with the United States. Most do not actually want to kill Americans. And so, the the CIA can hire Muslims while not hiring the "death to America" crowd. 

And so, there are many who might bar follows of particular religions from holding many governmental positions. There certainly are some who would require a Christian faith, or even an evangelical faith. But the Constitution prevents the government from having religious tests for any office. Simply passing a law would not be enough to overrule that, and were such a law passed it would rightly  be quickly struck down by the courts. Changing that constitutional protection requires amending the Constitution.

(It should be noted that this prohibition on religious tests applies to the government, not to individuals. Voters can apply whatever tests they want when selecting among candidates for elected office. If you think that Muslims should not serve in Congress, you are free to apply that test yourself -- even though I personally would disapprove of your criteria.)

Obviously, there is something a little undemocratic about this. If a majority of the American people want to ban Muslims from the CIA, one might think that in a democracy this should be allowed. A constitution serves to limit pure democracy. It declares that there are certain areas in which a majority ought not to be enough to change things. It declares that there are certain rights and/or ideas that ought to quite difficult change or remove, and that it ought to be quite difficult add other rights/ideas to that group. 

Not only does our Constitution require more than a simple majority to change certain rights, it also prevents the passions of a moment from changing our government and our rights. The process of amending the Constitution takes enough time that even if the entire country wants a change at a particular moment, that popular will must remain long enough to see the entire process through. 


And so we get to this week's court decision, Boumediene v. Bush

The Constitution makes very clear that habeas corpus is very important. "The Great Writ" allows those held in custody by the government to demand that the government prove in court that it has the the legal right to do so. This right goes back at least 350 years in England, and perhaps as much as 900. The Constitution says that this right may only be suspended in cases of rebellion or invasion. We are neither in state of rebellion nor invasion. 

The Bush administration and the the compliant Congress keeps trying to declare that those held in Guantanamo do not have the right of habeas corpus. If they succeeded this this -- simply by executive order (struck down in Hamdan v. Rumsfeld) or conventional law (struck down in Boumediene v. Bush)  -- then the Constitution would be meaningless. The rights of individuals would not be protected. The status of the Constitution as the "supreme law of the land" would have ended. 

Quite simply, the Supreme Court had to rule as it did. Disturbingly, four justices did not agree. In fact, the author of the dissenting opinion claims that he is an originalist who believes that the constitution means only what it meant that the time it was written. But the Constitution could not be more plain on this point. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Fortunately, there is a still a majority of justices who believe in the Constitution.

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