The hobgoblin of little minds
“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” — Ralph Waldo Emerson, Self Reliance
Perhaps this quotation explains a few things. By now everyone is familiar with the charges of “flip-flopping” that were hurled at Sen. Kerry during the 2004 election season. We are told that Barrack Obama is the candidate of “change”, although it appears to me that by “change” he really means “change my position as the winds may blow”. Even John McCain has changed his positions on a few things here and there. I know that I certainly have.
As we go through life, we learn, we are exposed to new idea, and if we are at all interested in growth we change our opinions as new information is presented to us. This isn’t a bad thing at all. The problem though comes when we change our positions for mere expediency, as it appears to me to be the case with Mr. Obama, or when we don’t hold to any principles at all and so are blown about on the breezes of popular fashion.
Speaking of changing our positions for mere expediency, what about changing our interpretations of the plain meaning of words, statutes, or… oh, say constitutional amendments to fit our ideology? Ruth Bader Ginsburg appears to have a bit of a problem holding to consistent interpretations of the Constitution. This became a bit clearer to me last night as I was re-reading the Heller decision. It seems that not so long ago Justice Ginsburg, as noted by Justice Scalia, had this to say about the meaning of the phrase “bear arms”…
“[s]urely a most familiar meaning is, as the Constitution’s Second Amendment… indicate[s]: ‘wear, bear, or carry… upon the person or in the clothing or in a pocket, for the purpose… of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ”
Now though, it seems that she agrees wholeheartedly (she didn’t after all write her own dissent) with Justice Stevens who seems to believe that it means, again as Justice Scalia notes, “the actual carrying of arms… but only in the service of an organized militia.”
How foolish are we conservatives, with our little minds, to insist upon a consistent interpretation of the words of our founders?
The media has wasted no time in noting that this decision regarding the second amendment is incomplete and that there are likely to be any number of lawsuits trying to strike down other gun laws. Already there are moans that the court has overturned either 70 or 150 years of established precedent. I think that they’re wrong about the precedent but right about the lawsuits that will be coming up.
I am somewhat dismayed, but not totally surprised, even at the conservatives on the court though. For one thing, this decision brought back to mind something that has been bothering me about the court’s interpretation of the Constitution ever since I learned how to read it.
You see, I believe, even as Justice Scalia claims to, that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” That leads me to a very straightforward problem of interpretation that the courts for years seem to have twisted around — the notion of “incorporation”. Apparently the court believes that the second amendment only enjoins the Congress from infringing upon our individual right to keep and bear arms (emphasis added below).
“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.”
Really? Is that what it actually says? I thought that words matter! Can you tell me please, even considering this statement from the fourteenth amendment; “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”; what the difference between these two amendments is in terms of which governments are enjoined from infringing upon our rights?
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
I’ll tell you the difference… THE FIRST AMENDMENT SPECIFICALLY ENJOINS CONGRESS FROM MAKING LAWS INFRINGING UPON SPECIFIC RIGHTS. THE SECOND AMENDMENT CONTAINS NO MENTION OF THE CONGRESS. So how is it that the courts interpret the fourteenth amendment as extending the specific injunction against the Congress crafting a law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” to all levels of State and local government — even to the level of school boards? The injunction in the first amendment specifically names Congress and not the states. The second amendment contains no mention of Congress. Shouldn’t the principle of “incorporation” that applies to an amendment specifying an injunction against Congress then apply also to an amendment that doesn’t?
Words have meaning don’t they? If the framers had meant the second amendment to only apply to Congress and the national government then why didn’t they say so? And, can you tell me how it is that the court’s interpretation here (and in Presser v. Illinois, 116 U. S. 252 (1886)) is consistent with the plain meaning of the words of the Constitution and its amendments? Especially this bit of the Constitution…
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Ah. But there I go again, insisting on that hobgoblin of little minds.
This is why, in my opinion James Madison Alexander Hamilton [Update: A slight correction here.] had this to say about the role of the Courts…
In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.
It’s truly a shame that the founders didn’t bother to do something about this oversight… like putting a syllable or two in that directly restricted the national courts from construing the laws according to the spirit of the Constitution — or the whim of one or two justices?
The Supreme Court of the United States of America may have found that the second amendment grants the right to keep and bear arms to individual citizens. They may have overturned an onerous ban on the rights of citizens of the District of Columbia to own handguns. What bothers me though is that they may have done nothing whatsoever to protect the rights of ordinary citizens of the several states to own handguns. After all, Congress makes the laws for the District of Columbia or holds the ultimate power to do so. Since the court assumes that the second amendment only applies to Congress then it had to overturn the D.C. gun ban. Since the court assumes that the second amendment isn’t a general restriction on all government in the United States they may not choose to overturn a similar restriction elsewhere.
Who knows. If we keep up this fight, and we must, we may get more of our rights back. Including the right to say a prayer now and then in a public place. A man can dream can’t he?
Originally posted at Perri Nelson’s Website.
On July 5, 2008 at 3:08 pm, Thomas Jackson wrote:
Great article although peeople seem to have forgotten that the 9th and 10th amendments limited the Federal government, so that the lst Amendment which limits the Federal government did no such thing to the states, several of which had official religions and had religious tests to hold office.
It is because our Constitution has been so badly mangled for political purposes, starting with our first Supreme Court justice who took it upon himself to declare the supreme court could only interpret the constituion and run over the the other two beranches of the government till the monster we have today.
Its time to scrap the whole thing and start anew. What’s the point in our constitution if we do not use it?
On July 5, 2008 at 3:31 pm, Perri Nelson wrote:
Well, I think scrapping the whole thing might be a little extreme. Perhaps a constitutional amendment limiting the scope of the court’s powers would be in order though. Something like a veto power upon the supreme court’s interpretive rulings might do, or simply undoing John Marshall’s usurpation of the legislative power.