Saturday, October 23, 2010

A Conflict of Visions

The American Thinker today has a great article by T. L. Davis entitled How the Constitution is Read. In Davis view, there are two ways to read the Constitution. One way, the Tea Party way, is the Constitution. It is a relatively straight forward document, easily accessible to the average person. Taken this way, Cristine O'Donnell's question at the debate with the Bearded Marxist is correct. The "separation of Church and State" simply is not in the first amendment.  The Founders didn't write it, and a reading of the writings of the Founders indicates they did not intend it.  So where does it come from?

The other way to read the Constitution is by reading and applying all the opinions that have been made by the Supremes along the way.  In this way of reading it, the Constitution literally changes with each new precedent.  The establishment clause of the First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
Over the years, using cases that have come before it, the Supremes have ruled that the second part, "or prohibiting the free exercise thereof," is to be read only sotto voce if at all. Because of the concept of stare decis these then become precedents in the next case that comes before the Supremes. In this way, over time, the Supremes can totally change the Constitution, all without having to go through the rigorous process of formally amending the document.

Reading and understanding precedents is, of course, a valuable thing, as it prevents each judge in the country from becoming a law unto himself.  At the same time, precedents can not be allowed to be taken more seriously than the underlying law itself.  If a precedent is wrongly decided, because it conflicts with the law, and then that precedent is used to make a case for further wrongly deciding another case, and so on, you can see how this pseudo-law would eventually be so at odds with the Constitution, that anyone who read the original document would have to believe that an amendment had been passed, but not printed in his copy.  It would be as if there were a conflict between what Jesus said, and St. Paul said, and our Judges went with St. Paul, but still called the religion Christianity.  People reading what Jesus actually said would feel justifiably betrayed.

Davis posits that the conflict of visions inherent in the reading of the Constitution will be the basis for most of the conflict in the Congress, if the Tea Partiers take over.  The conflict of visions will be most in play in the Senate, which must confirm not only Supreme Court Justices, but also every signal Federal Judge.  The battle has been raging, largely below the radar, because not enough people are aware of the problem.  We need to become aware. I would note that when Christine O'Donnell asked the question, everyone in the audience laughed.  We have a lot of work to do. 

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