It Depends On Whose Ox Is Being Shot

It’s rare that I get to argue with the conclusions of a Harvard Law School professor about Constitutional matters, but I think this time I am on solid ground — largely because I don’t have years and years of formal education and training to get in the way of simple reading comprehension and common sense, two things apparently taught right out of Dr. Cass Sunstein’s head.

In talking about the Supreme Court ruling on the 2nd Amendment, Dr. Sunstein says the following:

This is a stunning development – and a dramatic departure from how the Constitution has long been understood. Despite the court’s emphasis on constitutional text and history, its 5-4 decision yesterday in the District of Columbia gun control case reveals a much broader point: Constitutional change often comes from the efforts of energetic political movements, of which the movement for gun rights is merely one example.

I’m sorry, but just when did “Constitutional change coming from energetic political movements” become something new? It’s been around for a long time, and a rallying point for strict constructionists (those heretics who argue that the Constitution means what it says, and not what folks wish it to say). The most flagrant example would have to be Roe V. Wade, which struck down abortion bans across the nation. In their reasoning for their verdict, the justices invented (I’m sorry, “discovered”) a whole field of rights that had been utterly ignored for almost two centuries, hiding in the “penumbra” of the Bill of Rights. And it was a political movement that got that case before the Justices, and a political movement that won it.

More recently, political pressures were behind the infamous Kelo case, when a city argued that “taking for the public good” could mean “taking from private citizens and giving it to private industry,” and “public use” could mean “private ownership” when the city of New London, Connecticut, decided that some folks’ rights to keep their homes was less important than giving a pharmaceutical company land to build a new factory.

The good professor goes on to cite a long list of major Supreme Court rulings on the Constitution, all quite educational — but largely irrelevant to the matter at hand. But, at the end, we have the conclusion:

There is a still larger lesson here. Though the Constitution has governed the nation for well over two centuries, its meaning is not stable over time. In 1970, the Constitution did not mean what it meant in 1950. In 2008, the Constitution is quite different from what it was in 1988 – and in 2028, we will probably be in for some major surprises.

Even when the court purports to speak for the original understanding of the Constitution, it is usually responsive not only to people long dead, but also to those now living.

CURSE those Founding Fathers. They should have REALIZED that as times change, so will people. They should have known that society would evolve in new and unexpected ways, and what worked fine in 1787 might not hold up in 50, 100, 200, or even 221 years. Thank heavens we have fine, legal scholars like Dr. Sunstein and oustanding jurists like Justices Stevens and Ginsberg to help us look beyond the actual words and see the ideas, the sentiments, the principles behind them — and interpret them for our brave new world. Why, without them, we would be utterly hidebound to that ancient, hoary scrap of parchment and the words of a bunch of dead white males, without hope of ever making it work today.

Whoops, my bad. It turns out we might just be able to do that on our own after all.

Perhaps someone should show Professor Sunstein a copy of the Constitution that actually contains Article Five, and mention how it’s been used a total of 18 times in our history?

Just be careful when presenting it. Academics like that are notoriously sensitive.

(Dang, link fixed. Thanks, conservachef)

I'd stick with my maiden name then
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