Special Commentary/Editorial

REFLECTIONS ON CONSTITUTION and CONSTITUTIONAL AMENDMENTS

Some of us proclaim—often loudly, may be with some arrogance—that they are strict constitutionalist and that our Constitution, Bill of Rights and other amendments included, are infallible and absolute.

Is it?  The case in point is the comment made by 52^nd district representative, Duncan Hunter Jr.  He and many others like him consider that the Amendment XIV should be repealed, amended or replaced by a new Constitutional amendment, to deny citizenship to those natural (USA) born children of illegal immigrant parents, one or both.

Even without going into the merits of the immigration issue, what has happened here is an attitude that has surfaced on the part of the leaders or organizers of Tea Party and similar groups.  What happened to the claim of the leaders about their strict adherence to the Constitution?  Just a catchy phrase to excite or incite people?  Therefore, adherence to the Constitution is okay, if it fits the values, or the opinions, of the leaders’ that is. Personal or public opinions are after all value driven.  How often we have observed that immediately after capturing power, junta in not-so-democratic countries change the constitution of that country.  Their dislike of the constitution is of course is a matter of maintaining their power.  Our leaders’ dislikes are a matter of their values.  At times in history, these personalities come together and create power bases, which may or may not be in resonance with people at large.  Even more troubling is that our Constitution is not immune to changes, or attempted changes, from these power bases, helped by the fact that introduction and adoption of amendments are by indirect voting processes, not by referendum, and thus subject to power play.

Probably, nothing would have been improper with that, except it encourages frivolity.  One prime example is the prohibition amendment and the repeal of prohibition amendment.  Another one is the desire of current Tea Party organizers—they think they have the power base in the Congress, now—to change the Constitution in order to change the definition of citizenship of the country.

Women suffrage is in the Constitution as an amendment that reflected the value of the time—of the people and fortunately of the power bases of Congress of that time (one would recall that Congress resisted for a long time)—but equal rights amendment is yet to be ratified.

True, our Constitution is a value-based product, which reflects the values, customs, or traditions of 1776.  I cannot judge the Constitution based on my today’s values, which does not mean it is infallible or absolute.  Though, because of the astounding foresight of the founding fathers it does addresses many, not all, of the issues of our time, the Constitution is subject to interpretation.  In spite of all these, our Constitution is my guideline, and my guiding light.

Supreme Court justices are also not immune from value-based interpretations.  Most of the rulings on issues are divided, often by the narrowest margin—super majority among justices is not required for a decision.  Hardly any decision is unanimous or nearly unanimous.  It seems like the citizens divided in all shades of opinions, from ‘strongly agree’ to ‘strongly disagree’—we do make value based judgments.  But, for Supreme Court justices, it is supposed to be all legal, and thus their decision should be unanimous, or statistically unanimous except to account for the human factor.  As this is not the case, it is obvious value judgments are taking place in Supreme Court.  Not all are just legal.

It creates the potential for enormous problems.  A denied petition of today may be approved tomorrow.  A decision of today may be overturned tomorrow.  Justices have approved by the closest split decision in favor of a Cross on monuments.  How about a Crescent or sign of David, or a Buddha?  That is why there is so much political activities and commotion about appointing Supreme Court justices.  We fight not over their legal expertise, but over their values.  Supreme court decisions simply reflect the values of the majority of justices, not necessarily the values of the majority of people.  We accept the justices’ decision because our Constitution says so and it keeps a semblance of order in our society.  That is the beauty or greatest gift of our Constitution.  There is no question of right or wrong, or gloating on it.

The concept of right and wrong is a value-saturated concept.  And thus is not an absolute one rather a relative one.  Different concepts of right or wrong simply represent different values that exist within the society, and are time-dependent.  As such, it cannot be used for measuring and/or labeling another concept as right and wrong.  We have a right to try to change the values of others or to expose the inherent inconsistencies in those values, but not name-calling, or declare any idea as supreme, or absolute.  So, it would not be right to be righteous or be frivolous in being righteous in dealing with the Constitution!

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