|
|
Thursday, August 05, 2004
|
|
WHEREIN skippy REPONDS TO KARL ON ISSUES ON "STRICT CONSTRUCTIONALISM"
I know, I know. I had promised that I was going to revert to posts about jerking off. And I will, I promise. I really do. But Constitutional arguments are like heroin for people who don't have sex.
I figured that my previous post responding to Karl's concerns had settled the issue. I really did. But then I drank about 20 ounces of Canadian Club. After all, I'm nothing if not a patriot. I also re-read his comments in regards to my post. Oh, did I mention that I'm also a narcissitic asshole? It's even sadder when you realize that my narcissim is utterly unfounded.
One part of Karl's reply struck me as odd. But as I was sober, I figured, "ah, fuck it. This will never get me laid, anyhow." Then I started drinking and understood that it was the better part of wisdom to give up hope on that completely. Anyhow, here's the part of Karl's comment that disturbed me,
Finally, the value of my position is that it is easy to anticipate what the Consitution does and does not allow. Post-Structuralism aside, words mean things. Without this protection you can get nifty 'living constitution' decision like Dred Scott. Our Constitution is the oldest in the world. By far. And it ain't because it breaths. It's because we know what it means. Give the old girl a break.
I hadn't read the case of DRED SCOTT, PLAINTIFF IN ERROR, v. JOHN F. A. SANDFORD (1856) since high school, some 15 years ago. Actually, it was closer to twenty. A lady should never reveal her real age.
One thing struck me about Karl's reference to the Scott decision. As I had remembered it, it was decided as a property rights case. So I did what most drunken Canadians would do when presented with a conundrum of US Constitutional arguement. I researched it. Yeah, I didn't really expect you to understand. It's sort of like lacrosse with us.
In any event, the underlying facts of the Scott decision may be found here.
I disagree with Karl in one important respect. Karl asserts that the Scott decision was an example of a 'living constitution', ie; a Constitutional principle wherein decisions of the courts evolve with society. My reaing of the case reveals the reverse to be true. In fact, I see Scott v. Sandford as a perfect example of "strict constructionalism."
Some backround may be required here. The Constitution itself did not lay out the requirements of citizenship. It did, however, exclude certain groups from citizenship in Section 2, Clause 3, which established the constitution of the House of Representatives and te means of taxation. That section reads as follows,
Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (See Note 2)
I needn't remind anyone who got beyond grade school in the United States that "three fifths of all other persons" maeant black people. This was, to put it legalistically, "original intent." As shameful as it is, it's hard to deny. After all, this draft of the document is in their handwriting and bears their individual signatures.
At this point, one should read the decision itself, which can be read in its entirety here. It reads in part;
4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States.
5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its 'people or citizens.' Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being 'citizens' within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.
6. The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.
This should quite nicely depict the "strict constructionalism" of black people as property.
But it gets better.
8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens, as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.
9. The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.
Should I repeat section 9 of the decision? It, the decision in total, and the Constitution itself all lay out the "Founder's intent" rather clearly.
All things considered, I was surprised that Karl would cite Scott as an example of an "activist judiciary." If anything, it strikes me as the reverse. the case dealt with the "rights" (such as they were) of slaves. The decision was handed down precisely as the Founders intended it should be.
Scott was mitigated somewhat, in what could be described by modern conservatives as "judicial activism" in PLESSY v. FERGUSON (1896). Plessy, if nothing else, bestowed blacks at least some basic rights of citizenship. Well, if only after the ratification of the Fourteenth Amendment, which established the principle of "equal protection of the laws." Unfortunately, these rights were enshrined in the doctrine of "seperate but equal," which was the foundation of segregation in the Twentieth century.
If any decision by a "strict constructionalist" court could be described as "activist", it wouldn't be Scott, it would be Plessy. Plessy was directly contrary to the Fourteenth Amendment, as is demostrated in Brown v. Board of Education in 1954, which ultimately reversed it.
Jesus, I would've been a fantastic lawyer if only I were American. And drunk all the time.
On a more personal note, I haven't successfully masturbated in nearly 36 hours. I'm getting worried. Ordinarily, Constitutional arguments with foreigners over their own laws gets me rock hard.
Is that kinky?
Sure it is.
Permalink
|
|
|
| |
