F*ucking Constitution, How Does It Work?

In response to my first-ever request:

The United States Constitution. Much is made of it, and so few understand it. Mainly the ones who waive it around a lot. I'm not even going to try to explain everything about it here, as if I could anyway. What I wish to address are some of the basics of how it interacts with our present-day society, and how it is interpreted. Suffice to say there are several schools of thought on how to interpret the document, some more appealing to me than others, but I won't break it down that far.

For all of the genius of the document, and despite the fact that it has been the basis of our national government for over 200 years, it is a vague document. I believe it is intentionally so. Some are familiar with the contents, and like to throw the words therein around as if they have some kind of obvious, inherent meaning. Not so. In fact, we have a body of Constitutional Law dating back to the founding of the Republic. The power of the SCOTUS to interpret to Constitution is embodied in the Marbury v Madison decision in 1803. This established the power of "judicial review."





Exercising this power, the SCOTUS has issued numerous rulings on what the meaning is of certain provisions of the Constitution. This is necessary because of the aforementioned vagueness of the wording. To give but one example, the First Amendment states, in part, ‎"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.." Well, that's nice. But what does "establish" mean? What does it mean to "prohibit the free exercise thereof?" I always advise caution in trying to understand the Constitution on its face.

While there are obvious answers to those questions, the law is really much more nuanced and sophisticated, due to the various applications of these principles. Clearly, a law that attempts to make Mormonism the official religion of The United States would be in violation of the First Amendment. As would a law attempting to ban Scientology (much to my chagrin).

But what about Federal funding of school buses for Catholic school kids? What about taxing churches? And so on. While each of us may have a personal preference for what the law should be, the very idea of law is meaningless unless we give specific interpretation to the text of legal documents. The Courts have done so, and it is from this lineage of cases that our contemporary understanding (or misunderstanding, as the case may be) of what the Constitution means comes from.

We have a concept in the law called "stare decisis." It is lawyer-talk for "respect my authori-tah," where "my" is previous rulings. In other words, the radical concept that judges should follow the law, absent compelling reasons for them to diverge from precedent. Judges inserting their personal opinions in defiance of precedent are called "activist" judges, who are engaged in "judicial activism." As a side note, judicial activism does NOT mean "things right-wingers disagree with," in spite of the rhetoric. When and how to diverge from precedent is a weighty and complex issue I will not get into now, but I will say that sometimes it is a very, very good thing. To really be able to spot actual judicial activism, one needs to be able to understand the sate of law, and then compare the judge's ruling to that. This entails examining the opinion for reasons to split with precedent. And takes a lot of work, and some training/education. I can assure you that the vast majority of the corporate media haven't taken that time. And so I caution you to take lightly the initial interpretation of a judicial ruling.

One major thing to understand is, "What does it apply to?" Well, initially, it applied only to the Federal Government, thus all that language about "Congress shall..." Citizens had no rights against their state or local government under the Federal Constitution until the 14th Amendment. Using the 14th, the Court began to "incorporate" some of the provisions of the Constitution into the Amendment, which extended certain protections to all U.S. citizens. The 14th is the vehicle through which all citizens of the United States are guaranteed the incorporate rights as against all levels of government. Think of it as the "syringe" through which the "vaccine" against state and local violations of certain rights (the "disease" in this analogy) are delivered. Only with less autism. KIDDING!

The Constitution does NOT apply to private persons, or businesses. I often hear people attempt to invoke their right to free speech in situations where is just doesn't apply. Like Sarah Palin claiming people are trying to deprive her of her right to free speech by pointing out that what she says is stupid. If the government attempted to censor her speech, she'd have a point. Of course, I could make a whole new blog called "Things Sarah Palin Doesn't Understand."

And so ends Chapter One.