Saturday, October 29, 2005

"Interpreting" the Constitution

Saw this snippet from a legal opinion by Alex Kozinski on Instapundit. I'm responsible for the bolding:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or... The press" also means the Internet, and that "persons, houses, papers, and effects" also means public telephone booths. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases--or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we'?re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.
As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences. . . .

All too many of the other great tragedies of history - Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few - were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars. My excellent colleagues have forgotten these bitter lessons of history.
Wow. This man gets it.

Like the majority of America's Christians' attitude toward the Bible, many jurists treat the Constitution as a smorgasbord where they can eat what they like and ignore - nay, spit on - the rest. [Painful overextended metaphor alert]. In that wacky world, the 1st Amendment is the "hand-carved roast beef carved by the nice man in the white chef's hat at the end of the line" and the 2nd is the "liver and onions that has sat there for hours"[/alert].

This is what "legislating from the bench" is all about - building circles, within circles, within circles to arrive at the desired result. It's the lawyers version of The Harmony of the Spheres in which more and more elaborate structure must be employed to make the world - and more precisely the people in it - what you think they should be.

This is why there is no human activity (minus sexual... uh... "speech") that cannot be defined as "interstate commerce".

This is why in the 2nd Amendment to The Constitution of the United States - a clear and simple sentence that even I can understand -
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
- the words "the people" can mean "the state".

This is why in the takings clause of the 5th Amendment to The Constitution of the United States "public" really means "private".

This is why a woman's "right" to abortion is protected by an extended or imagined "right to privacy" that has been "discovered" in the 4th Amendment to The Constitution of the United States and recreational drug use is not.

And this is why the 9th and 10th Amendments to The Constitution of the United States today mean precisely... nothing.


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