Dear Friends,
It seems to me that to say, The Constitution is a statement of values and the job of a court is to apply those values to a changing situation, is to focus on a small quality while ignoring the larger quality. Unfortunately, this argument will go on ad infinitem, due to Mankind’s capriciousness in trying to get out of contracts, we see as not advantageous to us.
Codifying the values, or morality, of a governmental system, is implicit in any law, as law is the codifyment of government morality. Why else pass a law, because a policymaker’s opinion, is that this or that is unconscionable. The term unconscionable suggests a moral determination. To be unconscionable a thing or action must be morally wrong else it is conscionable. So morality is implied by any law or system of law… but is not the primary purpose of a Constitution.
The primary purpose of a Constitution, is the explicit need of people, to be protected from an out of control government. Tyranny has been the more natural state of humanity throughout the ages. Constitutionalism was conceived as a means to counter this tendency in human government. The Constitution is a contract between the governors and the governed. It clearly states the limits of government. This is the larger quality of a constitution.
To try to logically prove that a smaller quality should supersede larger quality of a thing or action is one definition of arguing spuriously. Spurious argument is to make an argument that sounds logical, while it is in fact, not logic at all and is, in fact, being used a means to deceive. In this case we can clearly see that to ignore the larger quality, that a constitution is a contract between the governed and the governors, limiting the power and scope of power of the governors, and instead to claim that it is merely a statement of “values” is as spurious as can be.
Since the invention of constitutional government the governors have been trying to escape the more difficult proscriptions of their constitutions. Governors being more comfortable in the role of tyrants than as public servants. Why should they serve anyone? They are the Elite and should be served. The modern incarnation of aristocracy, to hold aristocracy to a contract, proves that we don’t know our station in life.
So to argue that a constitution only suggests, by means of a value system, how to govern but is no actual limit to the governors, is to use rhetoric as a sophist, as a means to get your wants met regardless of the justice of those wants.
The example of the Second Amendment to the US Constitution is always brought up so we will address it here. The side that prefers tyranny argues that the first clause in the statement, “A well regulated militia” means the Amendment gives the State government’s the Right to keep and bear arms and is not a blanket limit on government’s monopoly on violence. When in fact, when reading the words of the founding fathers, we can clearly see that they were not interested in limiting the power of the people but in limiting the power of government to oppress those people. So why would they have specifically given government a right it already has written elsewhere in the document? Merely as redundancy?
To use the means codified in the Constitution to change it, to meet a changing situation such as the Internet, is not efficient enough, for those that favor tyranny, but I would add the modifying phrase, “for their tastes.” The means written in the US Constitution are very difficult and drawn out. Not only subjecting any potential amendment to a great deal of scrutiny in area but temporally as well. It takes a lot of time to get it looked at and passed.
Why do you suppose the framers of the US Constitution wrote such a long and arduous road into the Constitution when it is to be changed to meet a changing situation? The person who favors tyranny would argue that they foresaw the Supreme court changing the meaning to meet the new situation, making the need to follow such a difficult process redundant and only for window dressing, so to speak.
It is clear, from this line of reasoning, that those that favor tyranny, believe a constitution limit’s the people, and those that favor liberty, believe that constitutions limit government, giving us a metric to see who favors tyranny, from their arguments…
