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See the last glimmers of the Constitution’s life…

27 June 2008

The latest ruling of the Supreme Court is something to remember, in later years a story to tell your children or grand-children.  Beyond the scope of this site are discussions of this ruling’s social utility, legal implications or correctness under the US Constitution.  Whatever your views on these things, it marks a historically significant moment in the history of the United States.

SUPREME COURT OF THE UNITED STATES, Opinion of the Court No. 07-290, 26 June 2008 — Justice Scalia delivered the opinion of the Court.  Excerpt {Bold emphasis added}: 

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

… {Page 64} In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54-55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.

Undoubtedly some think that the Second Amendment is outmoded in a society where our  standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Fine words, the last glowing embers of a dying political regime.  Respect for the words of the Constitution, for the specific consent of the people which empowered it, for the love of the Constitution in the people’s hearts … all of these things fade away, day by day.  President Obama will nominate new Justices, after which I expect that we will never see such words again in a Supreme Court decision.  The American Constitution will become a minor procedural document, a field over which elites will joust to determine their relative power in our new regime.

This process, already far advanced, results from the Constitution dieing in our hearts – the only form of life it ever had, ever could have. 

Laughter from Europe greeted the Constitution’s birth, belief that a regime could not endure based on the people’s love of liberty and self-disciplined allegiance to mutually-agreed upon rules.  They were right.

To quote from:  Forecast: Death of the American Constitution:

People, Ideas, and Hardware. “In that order!” the late Col John R. Boyd, USAF, would thunder at his audiences.

Our wealth is just things (”hardware”), an inheritance from past generations.  What we lose we can work to replace.  Our aspirations to global hegemony were revealed as a mirage in Vietnam and Iraqi, lasting less than two generations after WWII.

Our Constitution is just an idea, inherited from the founders.  We created it, and its death will give us the experience to do better with the next version.

Our culture is a collection of discordant ideas, mixing lofty and base elements in a manner despised by much of the world – an easily understood disgust to anyone watching many of our TV shows and movies, or listening to some of our popular music.

The Constitution is not America.  We are America.  We are strong because of our ability to act together, to produce and follow leaders.  We are strong due to our openness to other cultures and ability to assimilate their best aspects.  We are strong due to our ability to adapt to new circumstances, to roll with defeat and carry on.

We will be what we want to be.  The coming years will reveal what that is.

There was a dream that was Rome. It shall be realized. These are the wishes of Marcus Aurelius.
     — Maximus Decimus Meridius, in the movie “Gladiator”

Please share your comments by posting below (brief and relevant, please), or email me at fabmaximus at hotmail dot com (note the spam-protected spelling).

Other posts in this series about America, how we got here and how we can recover it

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. Diagnosing the Eagle, Chapter III – reclaiming the Constitution, 3 January 2008
  3. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  4. Americans, now a subservient people (listen to the Founders sigh in disappointment), 20 July 2008
  5. de Tocqueville warns us not to become weak and servile, 21 July 2008
  6. A soft despotism for America?, 22 July 2008
  7. The American spirit speaks: “Baa, Baa, Baa”, 5 August 2008
  8. We’re Americans, hear us yell: “baa, baa, baa”, 6 August 2008
  9. Obama describes the first step to America’s renewal, 8 August 2008
  10. Let’s look at America in the mirror, the first step to reform, 14 August 2008
  11. Fixing America: elections, revolt, or passivity?, 16 August 2008
  12. Fixing American: taking responsibility is the first step, 17 August 2008
  13. Fixing America: solutions — elections, revolt, passivity, 18 August 2008
  14. The intelligentsia takes easy steps to abandoning America, 19 August 2008 

For all posts on this subject see America – how can we reform it?.

Even more important, do not forget the good news about the American experiment.

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17 Comments leave one →
  1. themurr permalink
    27 June 2008 4:32 am

    I would love to disagree with you, especially on the Constitution not being the heart and soul of this country but I would struggle to make such an argument.

    The oath every officer in the military utters upon promotion is to defend the Constitution and more importantly, to “bear true faith and allegiance to the same.” Yet senior officers have continually berated my fellow LTs and me about the idea that we are in no position to question what we are ordered to do, that people far smarter and with a far wider grasp of the situation are making these decisions, and as long as we follow our procedures, who are we to question them?

    I don’t necessarily disagree with any specific point of the argument, yet it irks me that they never mention that those officials are not to whom we are ultimately responsible, not even up to the president. They never comment that there is one question that should be running through our heads, whether what we are doing is in line with the Constitution. It might just be the colonels I am exposed to (or I may be entirely out of line), but nothing makes me think that’s the case. It leads me to the thought that the military has lost this concept which is integral to the whole structure, this idea of a document that is the supreme law of the land which the military (among others) is supposed to uphold. If the military to a large extent has lost this idea, than who still has it?

    Like

  2. Nicholas Weaver permalink
    27 June 2008 4:48 am

    I was frankly shocked by this, in a good way.

    Previously, there has always been a framer’s intent argument that has read “A well regulated militia” as being the key part (which says that you can ban anything short of the national guard’s duty weapons).

    That “the rights of the people” got considered, especically from scalia et all, I found a refreshing shock, even if it was in a VERY limited way.
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    Fabius Maximus replies: Probably also in a temporary way. The Court seldom overturns its own rulings, and almost never quickly. This might be an exception.

    But even if not overturned, I suspect the foundation of the majority’s reasoning — respect for the document — will vanish like last year’s snow.

    Like

  3. Duncan Kinder permalink
    27 June 2008 4:48 am

    This process, already far advanced, results from the Constitution dieing in our hearts – the only form of life it ever had, ever could have.

    The Lockean formula of “Life, Liberty, and Property” long provided the substructure of the Constitution. Basically, property enabled the yeoman farmers of yore to be secure in their livelihoods, which, in turn enabled them to be free.

    For complex reasons, the consolidation of property means that it no longer serves to enable people to be secure in their livelihoods. Employee drug testing, kissing up to the boss, conforming to groupthink, and such are all curtailments to liberty. George Orwell described this process.

    The trick, to maintain the spirit of the Constitution, would be to ensure that people generally are secure in the means to their livelihoods despite their not being property holders.

    Given such a sustained spirit, court decisions would take care of themselves.
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    Fabius Maximus replies: I agree with all of this, but it reminds me of the formula for suspending an egg one mile up in the air: find a mountain one mile high; put the egg on the top, then — without letting the egg fall — remove the mountain.

    Like

  4. judasnoose permalink
    27 June 2008 4:57 am

    “If the military to a large extent has lost this idea, than who still has it?”

    Many Americans who do retain that idea do not speak of it from IP addresses that can readily be traced back to them.

    The history of the last few decades has been that honest, plain-spoken men who try to speak truth to power frequently get assassinated. IMHO Kevin Tillman was silenced because he was going to expose war crimes.

    The problem of these silent dissenters is that they dare not speak in public, and if they seize public media (e.g. by pirate broadcasts of televised communiques) they will be subject to prosecution and run the risk of damaging the rest of the movement.

    The dissenters long for a leader — Ron Paul, William Lind, Paul Craig Roberts — just about anybody who can stay on message and is already in the public eye. While the military officers may be alienated from this movement, consider that many uniformed warfighters donated considerable fractions of their meager wages to the Ron Paul campaign.

    It may be that Fabius and I will be dead of old age before these silent dissenters can walk in public again. It may be that the lieutenant from the original post may be their grey-haired leader.

    Like

  5. plato's cave permalink
    27 June 2008 5:15 pm

    Thanks to Duncan Kinder for cutting through the gauzy talk about the Constitution, and the spirit of “liberty”, existing only in the minds of its citizens: “The trick, to maintain the spirit of the Constitution, would be to ensure that people generally are secure in the means to their livelihoods despite their not being property holders.”

    Exactly! what is the meaning of liberty for someone who’s out of work, or has to work two or thee jobs, or has no health insurance for his family? The constitution didn’t mandate social security, but that is an important part of the glue that has held the country together for sixty some years.

    Like

  6. pluto permalink
    27 June 2008 5:57 pm

    I’m going to take the possibly naive view that the Constitution is still alive in spite of the beating it has taken in the last few years. To my way of thinking, the Constitution can survive any single president, no matter how awful, if the next president chooses to return the balance to what is stated in the Constitution.

    You’ve all made a lot of compelling arguments that the Constitution is on its last legs and there is certainly some evidence to support your thinking but there is also a very large group of people who are becoming more and more dismayed at the behavior of the current administration and Congress and are beginning to demand that Congress, in particular, start fulfilling its role again instead of voting to strip itself of every power except that of receiving a paycheck.

    It is going to take a long time for these forces to become angry enough to start having a major impact on American politics but I think we will see some of it in the Obama campaign this fall and will certainly see much more of them in the 2012 election, particularly if Obama loses or messes up big time. As long as there are increasing numbers of people looking at Congress in dismay and saying “Do better or we’ll find somebody else” there is hope. When the public starts viewing Congress as a lost cause (as the Democratic party seems to believe) we are truly damned and will deserve the long night that will come for us.
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    Fabius Maximus replies: Just to be clear, I did not say that the Consitution was dead — just that it was dieing, as you said “on its last legs.”

    However, the trends killing it are bipartisan. The two parties each have different sections on which they whittle away. I expect President Obama’s administration to work diligently to resume the Clinton Administrations’ work — more intrustions of Federal agencies in to what remains of private life, more use of armed Federal staff (check how many Agencies have armed their staff over the past 20 years), increased use of paramilitary ops like Ruby Ridge, Waco, and the Elian Gonzalez incident.

    The Bush Jr. Administration moved the bar up in the wreck the Constitution contest, as Clinton did after Bush Sr. I am confident that President Obama will show himself equal to or exceeding his predecessors in this regard.

    Of course, I am giving our Presidents too much credit. As Americans weaken, sliding from citizens to consumers, it becomes easier to take large steps changing our poltiical regime.

    Like

  7. 27 June 2008 6:46 pm

    “The constitution didn’t mandate social security, but that is an important part of the glue that has held the country together for sixty some years.”

    Not withstanding the US Military-Industrial-Congresional-Think Tank-Services Sector Complex, and the profits from the US’s principle remaining export of war, hatred, and destruction.

    MAYBE it’s high time to start asking “What your country can do for YOU !”

    M

    Like

  8. plato's cave permalink
    28 June 2008 12:10 am

    History has shown that the Constitution needs to be periodically updated and amended, and is not hurt by that process. History has also shown that the Constitution can be blatantly disregarded as the country goes about its business — as in current practices of torture, suspension of habeas corpus, domestic surveillance, unitary executive action, etc.

    Instead of worrying about how the Constitution might be changing, why not address the ways it is already being violated, and meting out a timely punishment to the violators?
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    Fabius Maximus replies: Because only a tiny fraction of the erosion is even seen as violations. How much of the Bill of Rights remains in force, in the sense of enforceable in the Courts? For example, the protections of property are mostly gone. Pull our a copy and review it; I recommend this as an interesting exercise.

    Like

  9. themurr permalink
    28 June 2008 5:40 am

    Reviewing it isn’t even all that necessary, just reference the last two amendments in the Bill of Rights. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Try to find when either has been referenced in court cases, much less been the crux of a winning case. It was one of the arguments against a Bill of Rights, that the government would only respect the rights listed, and deny the existence of any others. Even more now the ones left are being slowly chipped away.

    Like

  10. judasnoose permalink
    28 June 2008 7:20 am

    The trick with the steady growth of state power is that the state is assumed to have the consent of its citizens by default.

    It might be an interesting exercise to design a constitution that allows citizens to opt out of citizenship, or to publically degrade the legitimacy of their regime. One plank for such a platform would be the medieval-Icelandic method of law retention: all laws must be memorized and recited once a year. If an old law gets forgotten, it no longer holds.

    However, putting a new Constitution into practice requires having a peaceful place with a roof, clean water, and more than seven meals’ worth of food for all participants. The problem with political reform is that it’s hard to do when one is worrying about where the next meal will come from. Thus aristocrats are a natural nucleus for reform and rebellion — they have seven meals’ worth of food stored up, ergo they can contemplate superior forms of political economy.

    Like

  11. plato's cave permalink
    28 June 2008 4:44 pm

    I think I am against a large central government as much as anyone here — if not in principle, then in fact in the present US. However, does anyone imagine that a country of this size could be governed in any other way? I assume that everyone here is in favor of the national highway program, the important regulatory agencies (most of them originally conceived and staffed by the industries they regulate!), the Commerce and Treasury departments, some national law enforcement agency, etc.

    I suspect that what are seen as intrusions into individual liberty are national attempts to enforce individual rights or remedy perceived injustices (labor laws, civil rights, mnority rights, environmental protection), most of which themselves are based on applications of constitutional principles to present circumstances.
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    Fabius Maximus replies: I believe your comment applies to few — very, very few — who comment here. That is to say… I am against obesity as much as anyone reading this site, but does anyone believe that a human can live without food? Or on only 500 cals/day?

    There are, of course, some who believe large governments — or even any government — to be unneccessary. The best reply to craxy libertarians is one of the Best geopolitical webposts, ever: “If Wishes Were Horses, Beggars Would Ride — A Pony!“, John & Belle Have a Blog (6 March 2004).

    Like

  12. Elle permalink
    28 June 2008 10:28 pm

    “MAYBE it’s high time to start asking “What your country can do for YOU !”

    Perhaps a better question is “What can the country stop doing for you?” If any organization needs a diet,it is the government and those dependent on it.

    “Fabius Maximus replies: I am against obesity as much as anyone reading this site, but does anyone believe that a human can live without food? Or on only 500 cals/day?”

    Ask a North Korean “citizen” about calorie requirements and one may be surprised,though I would doubt they would ask for more government to increase calories.The North Korean government itself doesn’t seem to have calorie problems.

    Like

  13. 3 July 2008 11:45 pm

    Reply to Pluto’s comment (#6 above):

    A man woke up in an ambulance, and asked the driver where they were going. “To the morgue” said the driver.

    “But I’m not dead yet!”

    “Well” the driver replied, “we’re not there yet.”

    Like

  14. Mikyo permalink
    4 July 2008 5:37 pm

    Mabye still some hope left.

    Dennis Kucinich to Launch New Constitutional Convention Initiative Tonight“, Cleveland Leader (14 November 2007).

    Our Broken Constitution“, Sanford Levinson (Professor Law at Austin, op-ed Los Angeles Times (16 October 2006)

    Friends Of the Article V Convention (FOAVC)
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    Fabius Maximus replies: I disagree. This is the American legal obsession at work, IMO. As though some new piece of paper, some new organization or legal process, can solve our problems. This is IMO 100% backwards. If the problem is, as I believe, with us then a new Consititution will reflect our disengagement and delusion that rights take precedence over obligations. The outcomes would probably be disasterous.

    Like

  15. Mikyo permalink
    4 July 2008 8:59 pm

    I take it as a sign that some believe the constitution worth saving. One possible reason for political apathy, discouragement and alienation, is a widespread belief that public opinion doesn’t matter. That is how the crisis of legitimacy shows itself in the USA.

    Of course no new document would solve our problems. The process of considering and debating and negotiating it, might be a step forward.

    Change is always risky. To solve some of the problems of today, we risk creating new and unknown problems for tommorrow.
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    Fabius Maximus replies: Perhaps. Or perhaps “widespread belief that public opinion doesn’t matter” is an excuse for a public for whom self-government has become too much work. Who can say?

    One defining characteristic of 21st century America is that we excel as really good excuses. No assumption of responsibilty for us!

    Like

  16. Mikyo permalink
    4 July 2008 10:23 pm

    “… excuse for a public for whom self-government has become too much work.”

    Maybe so. Oftentimes opinion really doesn’t matter, unless it results in some action.
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    Fabius Maximus replies: I agree. Too many people today seem to believe self-government means having opinions about issues, not taking action. Perhaps this results from grade schools giving too many writing exercises about “how you feel about” something — instead of exericses in research and analysis.

    Like

  17. 5 July 2008 1:35 am

    How dare they rip the Fourth Amendment?”, Joseph L. Galloway, op-ed in McClatchy Newspapers (3 July 2008) — Commentary about the Foreign Intelligence Surveillance Act. Opening:

    “Early next week the U.S. Senate will vote on an extension of the Foreign Intelligence Surveillance Act, with a few small amendments intended to immunize telecommunications corporations that assisted our government in the warrantless and illegal wiretapping it has grown to love.

    “That such a gutting of the Fourth Amendment to the Constitution even made it out of committee is yet another stain on the gutless and seemingly powerless Democratic majority in both houses of Congress.

    “That a majority on both sides of the aisle – not least of them the presumptive nominees for president of both political parties – intend to vote for such a violation of Americans’ right to privacy and of the sanctity of their personal communications is a stunning surrender to those who want us to live in fear forever.”

    Like

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