Monday, May 21, 2012

Amend Our Constitution

How should our Constitution be regarded.  Aside from its organizational function, was it primarily intended to serve as a set of principles or as a set of laws.  A set of principles is forever open to interpretation and re-interpretation.  A law establishes a "rule" which, if not adhered to, results in some form of sanction.  Granting a person the right to privacy is a principle, not a law.  It does not define privacy or private acts.  Barring the sale of alcoholic beverages is a law.   Non-adherence to this law results in punishment.

Principles may be regarded differently by different people.  Since justices of the Supreme Court are people, it follows that they, too, will have a variance in opinions.  It is expected and understood.  Judgements are easier if there is legal clarity.  Basing opinions on undefined general principles will always be open to criticism.  Constitutional clarity can be achieved with constitutional amending.

Our Constitution can be amended - very difficult, but possible.  There have been only 27 amendments since 1787 (225 years), and only 17 of them since the Bill of Rights, and only 12 since those immediately following the Civil War!  It has been 20 years since the most recent amendment, the 27th, was ratified.  None of the more recent amendments deal with anything substantial, unless you consider lowering the voting age to 18, or restricting the method of determining congressional salaries as such.

We often criticize the decisions of the Supreme Court in its constitutional rulings and accuse it of legislative rather than judicial activity - of being an "activist" Court.  But it is seen as an activist Court only when it has no legislation to direct it.  There is nothing in the Constitution about abortion or about gay marriage.  The Constitution gives absolutely no guidance on such "social" or "moral" issues.  To use this document as a basis for such social decision-making is truly a stretch - no matter what side of the issues one is on.

State courts have no problems in dealing with social issues.  Quite a number of states have passed amendments to their constitutions dealing with gay marriage and abortion.  Why should it be so difficult for our legislators to do the same for our federal Constitution.  So long as the Constitution does not include specific amendments addressing these social issues, resolutions and rulings may never be permanently achieved.  It is nonsensical for gay marriage to be acceptable in New York, but not in New Jersey.  It is just wrong for the federal advantages of marriage to not apply to legal same-sex marriage because it is not recognized by the federal government.

These controversies will continue to be argued on constitutional grounds though, in fact, such grounds are non-existant - and will remain so until appropriate amendments clarifying these important social matters are added.  If we have a "living Constitution," then it deserves to "live" in modern times.  It should be re-evaluated and amended on some recurrent basis.

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