Sunday, September 13, 2009

On Constitutional Interpretation: Blumie To The Rescue

There are two U.S. Constitutions, as everyone knows: your Constitution and my Constitution.

What a constitution says has now become mostly a matter of interpretation, and interpretations can be stretched to mean pretty much anything under the sun; which is to say constitutions have become authorizing instruments that allow interpreters to do pretty much whatever suits their fancy.
You say you want to abort fetuses. Simple as pie.

Since the constitution says nothing about abortion or fetuses, you imagine an “aura” surrounding it that speaks to privacy rights. From there, it is a simple matter to connect aural “constitutional” privacy rights with the right to fend off unwanted governmental intrusions, and there you have it: You now have given constitutional birth to a new baby un-fathered by any of the constitutional authors, including the Deists among them. We live in the hope the new right will not be aborted by some other interpreter who may have fallen under the sentimental spell of some ancient and outworn religious prohibition.

But you never know. You take your chances.

Would the signers of the constitution have felt comfortable with a partial birth abortion procedure that involves the violent destruction of nearly born infants?

It is indecent to ask – and pointless. Is not the constitution written by the founders a living document, infinitely elastic? Of course it is; which is to say, it is a document the interpretation of which depends upon our rules of grammar.

We moderns have our own rules of interpretation. We make them up as we go along.

Let’s say you want to prevent greedy lobbyists from determining elections by bundling money from contributors and giving it to candidates favored by their clients.

Putting aside the possibilty that prohibitions on spending may themselves be unconstitutional, it's as easy as punch. You write a law forbidding this. And if you are in a crusading mood, you also may hit upon something called “public campaign financing.” You want campaigns to be financed by the public, rather than by private political entrepreneurs who, some say, may be equally corrupt as those incumbent politicians who for years have gratefully accepted lobbyist’s contributions.

But you are a politician, you the writer of laws, the trumpet of democracy; and you want to be sure that “non-serious” candidates do not crowd the stage at public debates, because this would distract serious voters from considering serious issues. So you set a ceiling on the contributions these less than serious candidates must meet in order to qualify for public financing.

After awhile, some disgruntled campaigner sues, and the matter is brought before a judge, an authorized constitution interpreter who finds your ceiling too high and your law unconstitutional, a political Rube Goldberg contraption designed to boost campaign outlays for incumbents, while preventing successful challenges by forcing less well endowed competitors off the political playing field.

Under such circumstances, what do you do?

Well sir, you call upon the services of Connecticut Attorney General Richard Blumenthal, who no doubt will propose a fix to the legislature.

Blumenthal is now on the case. He may be expected to press the issue on appeal in a higher court, because the attorney general subscribes to campaign finance reform. He’s a multi-term incumbent reformer.
Most recent campaign finance reform -- and especially the McCain-Feingold bill -- is candidate centered, protects incumbents and destroys political parties. McCain-Feingold invites corruption because it places incumbents in the position of supplicants who batten on financers they, as lawmakers and heads of committees, are regulating. A system of anonymous giving filtered through political parties would be less corrupting.

The judge reviewing Connecticut’s pioneering campaign finance reform bill found it to be unconstitutional because it gave an unfair advantage to the incumbent politicians who wrote it.

Big surprise there. Politicians using legislation to advance their own political interests. Who would’a thunk it?

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