Moses & The Constitution

Today's Constitution is a realistic document of freedom only because of several corrective amendments. Those amendments speak to a sense of decency and fairness that I and other Blacks cherish. – Thurgood Marshall

The one thing that troubles me about many on the right and the left is both sides belief that the Constitution is untouchable and engraved in stone. The American Constitution despite the proclamations of tea-baggers was not written by the hand of God Almighty, instead it was written by a group of 18th century men with the limited knowledge of the world and history that they had. I will grant strict constructionists the fact that many of the concepts they enshrined in the constitution were ahead of their time, but let’s not forget all of the concepts that they neglected in the document or perverted due to their prejudices. All “men” were created equal so long as they were men, white, and property owners.

I believe that instead of looking at the constitution as absolute and complete we need to view it as a living, breathing document. A document whose basic tenets we hold untouchable but one where we also recognize that it can be amended to include those situations that men of the 18th century would never have imagined would exist. How could we expect them too, unless we believe that it was written by the hand of God a position which I personally do not subscribe to? Students of history can attest to the fact that the complexion of our country has changed dramatically and continues to change. There are those who want to cling to the America of the 18th century in the false hope that the sands of time can be stopped by the sheer will of stubbornness and ignorance.

What does it mean to be a strict constructionist? Does it mean that you believe that the constitution was complete as originally written or does it mean it was complete after certain amendments? I have never been sure what exactly these people believe. As a member of one of the groups who were originally left out of the constitution I find it difficult to accept the completeness of the original document. We are not the society we were in the 1700’s and we will never be again. Our society and our country are evolving and if we believe that our constitution will not have to evolve then we are laying the foundation for our demise into irrelevancy. I find it interesting that those who label themselves strict constructionists are usually those who were included in the original document and therefore believe that there is no reason to make it more inclusive.

"With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved." – Oliver Wendell Holmes

I believe that the constitution has been incorrectly interpreted in decisions like Dred Scott, the Santa Clara County decision, and even today with the recent decision to allow corporations unlimited campaign funding. These decisions have one thing in common and that is they were decided using strict constructionist views. The courts rather than applying the standards of the period they were in chose to retain the standards of the original framers complete with their prejudices and ignorance. As the President continues to fill vacancies on the court, as groups like the tea party continue to call for strict constructionist reading of the constitution, as states continue to enact draconian legislation, and as the threat of terrorism continues to loom over us it is important that as nation we define what we stand for. Do we stand for a society that is inclusive and believes in the value of all people or will we continue to claim this right only for those who look like we do?

The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy - Charles de Montesquieu

The Disputed Truth

NBC News: Elena Kagan Tapped for Supreme Court

Minutes ago on MSNBC, Pete Williams reported that Barack Obama has selected Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the United States Supreme Court. If confirmed, Kagan would be just the fourth ever woman to serve on the high court. More as we hear it...

UPDATE by desmoinesdem: The Above the Law blog saw several "clues" over the last few days that the president would pick Kagan.

Constitutional lawyer Glenn Greenwald laid out a devastating case against Kagan last month, and he supplemented that on Sunday with more links and commentary.

[UPDATE by Jonathan]: A couple quick points I'd like to hit on:


  1. Some might hit Kagan for not having prior judicial experience. It's worth noting, however, that more than a third of Supreme Court Justices in history (38 of 111) have come to the high court without any prior judicial experience. It is also worth noting that Kagan would have come to the court with such experience had Senate Republicans not blocked her confirmation to a lower court more than a decade ago.


  2. Some say that Kagan doesn't have a paper trail, or that she hasn't written anything monumental. I haven't read everything she has written, but I do know that her seminal administrative law article, which was named the year's best article by the American Bar Association’s Section on Administrative Law and Regulatory Practice, is taught in law schools.

More thoughts later...

Sen. Schumer Leads Opposition to Citizens United V. FEC With New Proposal

As most of you probably know by now, Citizens United V. FEC was the biggest SCOTUS decision this year, and arguably for awhile.  The 5-4 decision supposedly ended a limit on corporations first amendment rights, according to some of the advocates for the decision. 

I personally enjoyed Slate writer Dahlia Lithwick's take on the decision, saying that it creates a "Pinnochio Project" in which the Court transforms "a corporation into a real live boy."

McCain-Feingold advocates most likely wanted to beat their heads against a wall once they caught wind of this decision, because it was a proverbial slap in the face.  

Public opinion of what currently stands is overwhelmingly negative. A Washington Post poll taken after the ruling this February showed 8 of 10 respondents were opposed with 65% of polltakers being “strongly opposed” to the ruling. There isn’t even much of a partisan divide when it comes to opposition of this ruling. Bipartisan opposition of this ruling continues, and Congressional Democrats have a lot on their plates when they try curtail some of what the ruling set in place.  

Democrats plan to introduce legislation next week that would sharply limit the ability of foreign-connected companies to participate in U.S. politics and require greater transparency from corporations, unions and nonprofit groups that pay for political advertising, according to a confidential summary of the bill.

Source: Washington Post

The legislation being proposed wouldn’t fully negate the decision made by the Supreme Court by any means. The crux of the bill would address would require greater transparency from corporation, unions, etc. who finance political advertising while limiting non-domestic companies participation in American elections. Other facets of the bill would include executives or group leaders to include their names on ads that they fund, much like McCain-Feingold’s “Stand by your ad” provision

According to the summary, obtained by The Washington Post, the legislation would require corporate chief executives or group leaders to publicly attach their names to ads, much like political candidates are required to do. It would also mandate disclosure of major donors whose money is used for "campaign-related activity."

Many Republicans are in opposition to the plan constructed by Schumer and Rep. Chris Van Hollen (D-MD). <Insert collective gasp of disbelief here>  

Campaign finance reform, has been a controversial issue in American politics for a long time and will continue to be. The McCain-Feingold Act (Bipartisan Campaign Reform Act) was the first type of legislation in any form to amend/change the Federal Election Act of 1971.  The law was passed in 2002, meaning for 30 years the same election standards were in place. Even at that, Russ Feingold and John McCain had been working on getting this through Congress for almost 8 years.

The act faced opposition by everyone's favorite Senator, Mitch McConnell, and eventually led to a Supreme Court case.  McConnell V. FEC challenged the Constitutionality of McCain-Feingold.  

Schumer and crew hope they can rally some support from Republicans to help pass legislation for this, but only time will tell if that plan comes to fruition.

Scott Simon On Judicial Diversity

Talk surrounding Supreme Court diversity these days seems to focus around two things: judicial experience and educational background. Most of our justices are circuit court judges from elite universities; how about a Governor or legal advocate from a public university, ask critics?

I always enjoy listening to Scott Simon's essays on NPR's Weekend Edition Saturday, and yesterday he took hold of the argument for judicial diversity and broadened the categories even further. I think he's right. There's nothing wrong with Ivy League justices - not if we're going to argue that the pursuit of education is a good thing - but we do need diversity.

Some people believe that nominating a justice who got a great legal education and trial experience in the west or south might enliven discussion on a court where Harvard and Yale predominate. Five of the justices are from the northeast, and only one is from the south, which hardly reflects where people live in America today. Placing an avowed atheist, an active evangelical, an open gay or a former public defender might be a bolder step to express America than the usual categories by which we have come to keep score of diversity. America has become so gloriously varied, the old categories may feel a little narrow now. And, they'll only change.

A public defender from the West on the Supreme Court. Now I like that idea. You can listen to the full essay below the jump.

There's more...

Unpopularity of SCOTUS Citizens United Decision Approaching Constitutional Amendment Levels

Earlier this year, the conservative majority on the Supreme Court handed down the Citizens United decision wiping out restrictions on corporate expenditures in American elections -- a decision that could open up the door to foreign money flowing into campaigns in this country. As it turns out, according to a Quinnipiac poll out today, voters are not at all happy with the decision.

Voters disapprove 79 - 14 percent of the Supreme Court's January ruling removing limits on the amount corporations and unions could spend attacking or boosting political candidates, with consistently strong opposition across the political spectrum.

These numbers largely jibe with data released earlier this year by Pew, which found 68 percent of Americans disapproving of the decision, while just 17 percent approved. With margins like these, it is not out of the realm of possibility that a constitutional amendment seeking to overturn the decision is out of the question.

But looking more broadly, it is interesting to see the damage the decision has inflicted on the Court. Just last summer, Quinnipiac found the Supreme Court to have a +40 net approval rating, with 62 percent of the country rating the high court positively and just 22 percent rating it negatively. Today, however, the Court's rating has fallen dramatically to just +16 (49 percent approve / 33 percent disapprove) -- a statistically significant fall for the institution. It turns out that conservative judicial activism isn't actually popular with Americans.


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