Tuesday, July 10, 2018

The rule of the fucking law!

Consider the following sentences:
I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. 
That was from a speech in 1987.

That paragraph could also serve as some kind of a Rorschach test, I suppose, on how we think about the Constitution and the rule of law. How do you feel about that paragraph?

That excerpted paragraph is from a speech that Thurgood Marshall gave when he was serving as one of the nine in the US Supreme Court.  It was in the context of the bicentennial celebrations of the US Constitution.

Marshall refused to participate in those events.
 The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the “more perfect Union” it is said we now enjoy.
A sitting member of the Supreme Court openly critiquing the Constitution.  And I had no idea about that all these years!

Marshall pulls no punches. Not even a bit.
What is striking is the role legal principles have played throughout America’s history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law. Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The progress has been dramatic, and it will continue.
The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave. "We the People” no longer enslave, but the credit does not belong to the Framers.
It continues to boggle my mind that Marshall's vacancy was filled by Clarence Thomas!  And even more mind-boggling that we have justices who believe that the Constitution's "original" intent ought to be interpreted, despite all the moral fatal flaws from which the laws been birthed.
We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.
Of course, very little of such substance will be discussed and debated over the coming weeks of the Senate's consideration of the President's nominee for the Supreme Court.  As has become the standard practice, the nominee will pretty much refuse to answer any question.  The uber-conservative judge will be confirmed, and will help solidify the "originalist" interpretation of the Constitution.

Tell me again why the "rule of law" is so crucial?  Whose law, and whose rule?


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