The ‘Orwellian Dialectic’
Vol: 45 Issue: 30 Thursday, June 30, 2005
We recently examined the inexplicable rulings of the Supreme Court in its last session that turned the 2nd, 4th, 5th and 10th Amendments upside down under the principle that the Constitution is a ‘living document’ and therefore subject to being tortured until it said what the majority of the Court wanted it to say.
I opined at the time that, at long last, the Constitution had been tortured ‘to death.’ That really isn’t a problem, since it was always intended to be a dead instrument.
The principle of a ‘living constitution’ is that, as a ‘living’ document, it is capable of growing and adapting to meet the challenges imposed by time on a living society.
Without the doctrine of a ‘living’ constitution, its proponents argue, there would still be a Constitutional right to own slaves, deny women the right of suffrage, etc., etc.
It is a powerful argument, if used to sway the ignorant, but since it is being advanced by lawyer/legislators well-educated in the law, ‘ignorance’ is no excuse.
Historically, the Constitution was static, and therefore, it meant what it said — until it didn’t say that anymore — through the process of Constitutional amendment.
That process was NOT given to legislators, and was specifically prohibited to the judiciary. Only a two-thirds majority of, ‘we, the people’ had that power. History abounds with evidence that, until this generation, that process was respected by the courts.
In 1919, the Volstead Act, passed by Congress, made consumption of alcohol illegal in the United States. Since, at that time, nobody had yet dreamed up the fiction of the Constitution as a ‘living document’ — the Volstead Act was unconstitutional on its face.
To make it pass Constitutional muster required the passage of a Constitutional amendment. The Eighteenth Amendment was submitted and passed by the required two-thirds vote of the states, (36 voted to approve it) and the Volstead Act became law.
Of course, the Volstead Act was a monumental failure, since it attempted to impose by legislation that which is the sole province of God — the imposition of individual morals. This experiment introduced America to the concept of ‘crime families’ — a form of terror that remains part of the fabric of our society to this day.
By 1933, since the Constitution was still, at that time, a static document, repealing the Volstead Act required another Constitutional Amendment since the Supreme Court was still bound by existing Constitutional law.
So the 21st Amendment was put to we, the people of the United States, who repealed it by a majority vote of Constitutional state conventions.
The Supreme Court could NOT strike down what was clearly bad law, despite the fact it created much worse problems than those it was intended to cure, because the Constitution was still, well, Constitutional!
The same applies to slavery and women’s suffrage. Since the Constitution had not yet been given the Frankenstein treatment, Constitutional amendments were necessary.
The Supreme Court in session in 1865 recognized the evils inherent in slavery, but was powerless to overturn the Constitution by judicial fiat.
So the Thirteenth Amendment was put to the people and slavery and involuntary servitude were expressly identified as unconstitutional. Similarly, it was the introduction of the 19th Amendment in 1926 that prohibited voter discrimination based on sex.
The Supreme Court in session in 1920’s had no power to rule that sexual discrimination was unconstitutional until the Constitution said it was. Which was the way the framers of the Constitution intended for the process to work. Tinkering with the Constitution was deemed too important to entrust to political appointees.
That’s why amendments were necessary — because only ‘we, the people’ were entrusted with the responsibility to change it.
The Supreme Court’s role wasn’t to interpret the Constitution, it was to read it and apply its terms impartially based on what it said.
The recent deal struck by the ‘Gang of Fourteen’ — seven Senate Democrats and seven Senate Republicans — to approve certain nominations and block others — based entirely on partisan bias — proves that, for the majority of lawmakers on both sides of the aisle, winning the partisan battle is less important than protecting the rule of law.
Basing judicial appointments on partisan party lines, rather than on the candidate’s relative merits (or lack thereof) has produced a crop of unelected legislative wannabes, rather than impartial referees judging disputes based on existing laws.
The Democrats deny applying a ‘litmus test’ for example, on nominees’ views on abortion. Unless, of course, a nominee thinks Roe v. Wade is bad law.
The fiction is that judges should be ‘impartial’ but the reality is that a nominee is truly IS impartial on ‘red-line’ issues like abortion, or respecting the Constitutional process, might as well withdraw his or her name from consideration.
Any judicial hopeful who is suspected of not being completely committed to the view of abortion as a Constitutional ‘right’ is deemed to be ‘biased’.
On the other hand, any judicial hopeful who claims absolute allegiance to Roe v. Wade can expect to sail right through. In practice, a judicial nominee must exhibit an absolute bias in order to be confirmed.
Any nominee that gives even a hint of a conservative background is blocked (by filibuster, if necessary) in the name of ‘impartiality’ whereas open evidence of liberal bias means smooth sailing.
This is not a conservative fiction or an exercise in liberal-bashing. Unless the word ‘bias’ has been redefined by Webster’s, bias still means, “A preference or an inclination, especially one that inhibits impartial judgment.”
Note that ‘bias’ describes ANY ‘preference or inclination’ since the word is equally at home before the words ‘conservative’ OR ‘liberal’. But this is a generation in which George Orwell would have felt completely at home.
Orwell’s famous 1948 novel “1984” envisioned a near-future America run by an ubiquitous national leader called ‘Big Brother’. Orwell’s vision of ‘Big Brother’ bears an uncanny resemblance to the Bible’s vision of the coming antichrist.
In his book, “double speak” is the expression of two contrary ideas — one a lie, the other true — being simultaneously and equally accepted by the mind.
In its modern, post-1984 incarnation, ‘doublespeak’ has become synonymous with ‘propaganda’ although its primary application is generally known as ‘political correctness’ — which is another extreme example of double-speak in action.
‘Politics’ as used as a verb, means, “Political attitudes and positions.” How can something be defined as ‘politically correct’ when the very definition of politics means what is ‘correct’ to one person is the EXACT OPPOSITE to another?
Roe v. Wade was the judicial fiction that brought the Constitution to life, and through its supporters, created the monster that the Constitution has become.
It wasn’t until the late 1990’s that the ‘living document’ fiction was clearly articulated as a political reality by one of the great political fiction writers of our time.
During his failed 2000 presidential campaign, Al Gore admitted that, “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”
By this time, ‘doublespeak’ had become so much a part of the fabric of American society that Al Gore could chant ‘every vote should count’, while simultaneously battling in the courts to suppress votes he didn’t think would count for HIM — without being run out of town on a rail.
It is this same doublespeak that makes it possible for the Supreme Court to find that the ‘right to life’ is unconstitutional, whereas the right to terminate life — based entirely on sex — is Constitutionally protected. Roe v. Wade gives the right to terminate a pregnancy exclusively to the mother.
Courts have ruled that fathers have no parental rights until birth, and only court-mandated parental obligations thereafter.
One can argue the relative merits of determining these rights by the arbitrary standard of the sex of the parent until blue in the face, but discrimination is discrimination. But the courts find some decimation less discriminatory than others.
If the ‘right to abortion’ were put through the amendment process, the polls all say it would most certainly fail. Hence, the ‘living document’ doctrine replaces the Constitutional process and the impartial judiciary becomes as mythical as the Constitutional rights guaranteed by a politically incorrect and therefore non-existent Creator.
The same applies to the newly-discovered Constitutional ‘right’ to ‘marriage’. A Constitutional amendment banning gay marriage would mirror the Congressional-mandated ‘Defense of Marriage Act’ — which has also been passed by the legislatures of enough states to guarantee passage of a Constitutional amendment forever banning gay marriage.
The newly-discovered Constitutional ‘right’ to freedom FROM religion, banning any mention of God, the Bible, or such ‘religious indoctrination materials’ as the Ten Commandments, prohibits the 74% or so of Americans who claim to be Christians from the 4th Amendment guarantees that specifically ‘prohibit the free exercise’ of religious expression.
Where is the Congress now? Fighting to appoint people with the ‘correct’ bias to the federal bench, or fighting to oppose those with the ‘incorrect’ bias from achieving that office, all in the name of selecting ‘impartial’ judges to ‘interpret’ the Constitution ‘correctly’.
The last time lawmakers gave ‘we, the people’ the right to amend the Constitution instead of relying on a hand-picked judiciary was May 7, 1992 — and ‘we, the people, used that authority to stop Congress from granting themselves unlimited pay raises by passing the 27th Amendment.
After THAT happened, the Congress became much more willing to allow the Constitution to be amended from the bench.
The REAL Big Brother, when he arrives on the scene, will discover most of his work already done for him. Orwell would have been proud.