Constitution anti-government?

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An anti-government screed posted on our comment boards brought this response from another reader: "Great letter! Posted by someone who understands American values, traditions AND the CONSTITUTION!"
Funny thing though, as carefully as I peruse my copy of the U.S. Constitution, I can't find that part about being so anti-government. I always thought the Constitution was written to replace the failed Articles of Confederation with a stronger, better government, not get rid of government.
"The legitimate object of government," Lincoln said, "is to do for a community of people, whatever they need to have done, but cannot do at all, or cannot so well do for themselves, in their separate and individual capacities."
What those needs might be is certainly debatable, but I see nothing in the Constitution that says the government cannot do for us what we as individuals are incapable of doing as well.
Could someone please cite for me the sections that say government is bad? Or that favor one form of economy over another? I anxiously await enlightenment on this point.

Principles over personalities

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A host of scholars and First Amendment groups have filed briefs in support of the Westboro Baptist Church, not because they agree that God hates gays, as the church likes to claim, but because the love free speech.
I doubt this will sway many people, who just can't seem to look past the facts of the case to the principle involved.
Please, forget for a moment the facts of the case - the detestable rhetoric of Fred Phelps and the Westboro Baptist church, whose handful of members protest at military funerals, claiming solders' deaths are God's punishment for our society's tolerance of homosexuals. Forget the natural sympathy for Snyder, whose son, Marine Lance Cpl. Matthew Snyder, died serving his country killed in Iraq.
And consider, just for a moment, the principles at stake.
No matter how hard you try to be fair, it's hard to forget the hateful speech spread by Phelps and the family members that constitute most of his pathetic congregation. But remember, your own First Amendment rights are only as extensive as those you are willing to extend to speech you find despicable. Speech that doesn't offend us doesn't need the First Amendment, so if free speech means anything, it means learning to tolerate despised free speech from those we despise.
Of course, Albert Snyder has rights, too. Many would say he has a right to bury his son in peace and privacy. That's why there are both state and federal laws keeping protesters a certain distance from funerals, just as there are laws keeping abortion protesters a certain distance from the entrance to clinics.
By all accounts, Albert Snyder never even saw the protesters until after the funeral when he saw them on television. So this isn't a case of conflicting rights. It's a matter of an understandably upset father trying to silence those who would politicize the death of his son.
Matthew Snyder deserves our honor; his father deserves our respect. But the country Matthew gave his life for stands for the genuine freedom to speak, to assemble and protest. It gives us all the right to practice our religion, even Fred Phelps.
It would be sad, indeed, if his father's lawsuit is allowed to undo that sacrifice.

You still have right to remain silent

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I've long thought the famous Miranda warning ("You have the right to remain silent ...) was an important safeguard of justice.
But reading the Miranda decision and its progeny in college, I thought the Supreme Court went too far. It's one thing to say people have the right not to incriminate themselves, and have a right to a lawyer. It's quite another to say that criminal suspect have a right to a great lawyer or a right not to make dumb mistakes.
Thank God, in fact, for stupid criminals and their incompetent attorneys.
So I was glad to see the Supreme Court the other day rule 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting by saying one word after nearly three hours of questioning had given up his right to silence, and that the statement could be used against him at trial.
I think the Constitution out to protects suspect from coercion or torture, but not searching questioning by the police.
The Court's newest justice, Sonia Sotomayor, however, penned a vigorous dissent.
"Today's decision turns Miranda upside down," wrote Sotomayor. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counter-intuitively, requires them to speak."
Actually, I think it's Sotomayor who turns the Constitution upside down. It wasn't that the suspect, Van Chester Thompkins, remained silent that was the problem, but that he spoke at all.
"If Thompkins wanted to remain silent, he could have said nothing in response to questions, or he could have unambiguously involved his Miranda rights and ended the interrogation," wrote Justice Anthony Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
That, it seems to me, protects the rights of suspects from the kinds of abuses the Constitution was written to protect against.

A Constitution to 'endure for ages'

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Sex offenders? Child pornographers? Lock 'em up and throw away the key.
Yes, I know it's my job to wring my hands here over the Supreme Court's decision last week that it is OK for the feds to keep prisoners deemed dangerous sexual predators behind bars after their sentence expires.
And I will worry, in a minute. Keeping you in jail after you've served your sentence intuitively seems unconstitutional.
But first I have to admit I have mixed feelings here. Maybe some people ought to stay locked up, like sexual predators who the experts say are particularly prone to recidivism.
But in U.S. v. Comstock, the court never reaches the substantive questions of due process and constitutional liberty that are the fundamental protection of everyone's rights: Do "commitment hearings" for such offenders violate their due-process rights under the Fifth Amendment? What about the double-jeopardy clause that forbids trying someone twice for the same offense? What about the Eighth Amendment's prohibition of cruel and unusual punishment?
Good questions, but not yet answered. In this case, anyway.
Instead the court correctly limited its decision to reversing the decision of a lower court, which had ruled section 4248 of the U.S. code exceeded constitutional federal power.
The Supreme Court's 7-2 decision last week is a broad reaffirmation of the kind of federal power, I suspect, that worries a lot of folks these days every bit as much as sexual predators.
There's no guarantee a court majority would answer the same way when it comes to health care, or bailouts, or any other federal policy some would like to see declared unconstitutional. But the majority reaffirmed standing doctrine that gives government wide latitude in executing its enumerated powers.
Justice Stephen Breyer, writing for the majority, goes back to the great chief justice, John Marshall, in holding that the Constitution isn't a code of laws, but a broad outline of government. The majority noted that nothing in the Constitution authorizes the federal government to arrest anyone, except in cases of treason, counterfeiting, piracy on the high seas and "Offenses against the Law of Nations."
Nonetheless, the court ruled, Congress has the power to regulate commerce, to create a federal judiciary and to tax and spend to "provide for the common Defence and general Welfare of the United States." And Congress also has the implied power to pass all laws reasonably related to those enumerated powers.
In Comstock, the court quotes a 1992 Sandra Day O'Connor decision, joined by all the court's conservatives, U.S. v. New York:
"The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role."
That language no doubt distresses those who complain of a "living" Constitution, one that changes to suit the fads and frustrations of the time. And I don't think the Constitution means anything you want it to mean to suit the controversies of the day.
That complaint better describes those who today insist the real Constitution is of sovereign states and eviscerated federal authority, because that certainly isn't the Constitution we've had for most of the republic.
Those views, in fact, were soundly rejected as far back as 1819, when Marshall wrote that the Constitution "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
Indeed, Marshall pointed out, the framers knew a more specific Constitution could never last. It is, he said, "a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
That, Marshall insisted, and the Comstock court reaffirmed, was the true intent of the Founding Fathers - a living Constitution, yes, that stayed true to fundamental principles but could adapt to changing times unforeseen by the framers.
Only two justices - Clarence Thomas and Antonin Scalia - dissented in Comstock. They insisted the power to incarcerate prisoners belonged to the traditional police powers of the state under the 10th Amendment. But that's the view outside the mainstream of two centuries of constitutional law.
Like the majority, the dissenters avoided the criminal justice questions raised by the case, saying only that it is up to the states, not the federal government to keep predators locked up.
But as the feds argued, these were prisoners no state wanted. The only alternative was to release them.
Pushed to their logical conclusions, the fringe doctrines of Thomas and Scalia would do more than turn loose sexual predators. They would undo two centuries of nation-building, and, in Marshall's words, "explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use."
There are indeed fundamental constitutional issues at stake in Comstock and the courts must keep a close eye on the due process and fundamental justice concerns inherent in any sort of commitment hearings on any level of government.
But all that stuff about sovereign states that may have sounded good to some anti-federalists 200 years ago is really just political distraction from the Constitution that really matters - and the sort of constitution I believe the Founding Fathers intended.

Marc Charisse is editor of The Evening Sun. E-mail: mcharisse@eveningsun.com



"Powerful and ingenious minds"

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There's been a lot of talk lately about the U.S. Constitution, but most of it has been one-sided monologue.
Those opposed to a number of federal policies insist the Constitution if being violated, while the other side stays largely silent. I don't think the should, for it's by no means a settled question that the Constitution isn't on their side.
The Founding Fathers themselves did not agree on the exact meaning of the Constitution; like so much human endeavor it was the product of conflict and compromise. Still, the majority was able to assent to a set of principles long enough to ratify the longest-lasting, most successful charter for representative government mankind has ever produced.
But it's beyond debate that the Constitution was intended to create a stronger central government than that created by the Articles of Confederation, though the extend of that the legitimate extent of that power is still certainly debatable.
The early Chief Justice John Marshall interpreted the powers of Congress to be broad, and thought that in questionable cases, controversies ought to be left to the political branches of government.
As Marshall wrote in Gibbons v. Ogden, "Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass and that the original powers of the States are retained if any possible construction will retain them may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use."
I think he might as well have been speaking to those who would use the Constitution to undo health care, of social security, or a wide range of economic legislation it's currently fashionable to call "unconstitutional."
Like I say, these are debatable points, and no one has a monopoly on what the Constitution means.
So let's debate ...

About this blog

Marc Charisse is the editor of The Evening Sun. Dr. Charisse has a Ph.D. in First Amendment law and history, and has taught communication law and constitutional law at the University of Washington in Seattle and Jacksonville University in Jacksonville, Fla. Charisse can be reached at mcharisse@eveningsun.com.

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