Established or not Established: That is the Question

The Declaration of Independence celebrated its 242nd birthday last week. The Fourth of July is always a fun day donning flag colors to fete our government and ourselves as a nation unique in the world. The party on the National Mall is prominent on my bucket list of events to see.

Even though the Constitution was signed 11 years later and celebrates its birthday on September 17, the two are inextricably linked whenever our experiment in self-government is discussed. They are sacred public documents from which our laws and ethos as a country find their roots. The ideas of self-government, checks and balances on officials, and specified powers to government and powers to the people were developed and found worthy of the effort to put into effect.

What is also clear is that they are documents created by human effort, not divine edict. They are flawed and often in need of revision. Times change, so do situations, and humans develop as a species. We’ve amended the Constitution 27 times over the years. The first ten coming just two years after ratification as a condition of some states for making the whole document acceptable.

Even then there were still egregious flaws in the Constitution, both in fact and omission. The biggest was the idea that black people were worth three-fifths of a person. It took nearly 80 years (1865) to get a remedy with the 13th Amendment. We won’t even go into “allowing” women to vote 133 years (1920) after we thought it was a good idea for white, land-owning men to do so. And, it took a full 184 years (1971) before it occurred to us to cede suffrage to 18-year-olds as they were going off to war, but not able to vote for the people sending them. This should have been apparent from the beginning. James Monroe was a few years shy of being able to vote when he was working on the document that excluded him. But, I’m not second guessing those men. We don’t have to because we have the right and duty to change the Constitution and any of our laws as a majority of voices see fit.

Politics shouldn’t play a part in changing or making new laws. Republican and Democratic ideology isn’t good enough for passing a law–making the country better is the only valid reason. The same holds true for appointments to the Supreme Court by the President and confirmation by the Senate, however, politics does rear its head. To abide by the reasoning behind checks and balances in the Constitution, the highest court in the land should be neutral while the presidency and Congress are partisan. The president’s selection of Judge Brett Kavanaugh didn’t even attempt a show of neutrality. So, the rhetoric is turned up and the circus has come to D.C.

The bellwether topic on confirming Judge Kavanaugh is Roe v. Wade, the 45-year-old court decision that found the right to privacy in this nation includes the right to seek an abortion. There has been a firestorm ever since. The point today is that this fight has become less about privacy and more about politics. With the configuration of the Senate today, it will take only one Republican to defect to the side of the unified Democrats (hardly a done deal) to keep Judge Kavanaugh off the bench–theoretically safeguarding Roe. The politics of the day is that that one Republican may be Maine Senator Susan Collins with the possibility of Alaska Senator Lisa Murkowski joining her. Their reasoning isn’t that they think abortion should or shouldn’t be legal. Their point is that Roe is established law and that makes it much more difficult to erase from the books. Established law is the key for them–Supreme Court Justices should vote to uphold established law. Not so for Democrats. Democrats think Roe is simply good law–families should have a choice in matters of growing and raising a family–the privacy thing. But, they certainly don’t care, at this point, why. They just want the votes–politics.

You won’t hear one Dem today challenge voting for “established law” as a reason to vote against Judge Kavanaugh. But, don’t blink, because Democrats may soon be singing a different tune, not if but when the Citizens United v. Federal Election Commission case comes up for review. Democrats overwhelmingly want to eliminate unlimited money from any source into elections. The Court said that money equals speech and corporations equal people; and those people/corporations with the most money are free to talk the loudest. Changing this established law–eight years old–would require a vote opposite from keeping Roe v. Wade. You can bet the “established law” reasoning Democrats are mum about today, will be cast in a different light. Roe is 45 years old and Citizens United is eight. At the risk of plagiarizing Bob Dylan: How many years must one law exist before it is allowed to be established? That may be the theme when it comes to overturning Citizens United–not that it is plain ol’ crappy law.

In fact, a law is “established” the minute it is enacted, so Sen Collins’ argument is that any law should be allowed to stand. Judge Kavanaugh’s hearings could get, at the risk of plagiarizing “Laugh-In’s” Arte Johnson: “Verrry interesting.”

Comments

  1. Jeanne O'Malley says:

    If The Mesquite Local News wanted to make some money and raise the quality of American debate, they would quickly publish a collection of Terry Donnelly’s essays in book form and get it out there to the rest of the country. Failing that, they should syndicate him.
    SIncerely,
    Jeanne O’Malley
    Canberra, Australia

  2. Wayne Benenson says:

    Many years apparently judging from voters restriction mandates against people of color.

  3. There seem likely to be many issues to come before SCOTUS in the tenures of Trump’s appointments. His highest priority may well be his own protection against legal investigations and indictments against him while president. Judge Kavanaugh has written opinions on his views of this matter which favor Trump. Adding that to Rowe vs. Wade and Citizens United should make this appointment a critical one deserving of thoughtful scrutiny from all members of Congress and US citizens. The next 30 years are at stake.

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