The Constitution is a Timeless Document – RED ALERT!

Posted by Tina

Seventh Circuit Judge Richard Posner says he sees “absolutely no value” in studying the U.S. Constitution because the original Constitution, the Bill of Rights, and the post-Civil War amendments “do not speak to today.”

Is it gun control (Orlando) or is it language (Orlando) that has Posner tied in knots over the limitations our Constitution places on our legislators and leaders? It’s hard to say, perhaps neither. In any event his remarks come at a time when issues of speech, guns, assimilation and Sharia law are on a lot of minds.

Posner cited Robert Jackson as the Supreme Court justice he most admired. Jackson is famous for saying about the court, “We are not final because we are infallible, but we are infallible only because we are final.” – Wikipedia

Jackson’s remarks in the case Dennis v. United States seem appropriate to discussions about language and speech rights:

In 1951, the Supreme Court decided Dennis v. United States.[22] In Dennis, the petitioners were zealous Communists who organized for the purpose of teaching the “Marxist-Leninist Doctrine”.[23] The principal texts used to teach the doctrine were: History of the Communist Party of the Soviet Union; Foundations of Leninism by Stalin; The Communist Manifesto by Marx and Engels; and State and Revolution by Lenin.[16] The Petitioners were convicted for violating §2 and §3 of the Smith Act which, among other things, made it unlawful to conspire to organize a group which advocates the overthrow of the United States government by force or violence.[24] The issue before the Supreme Court was “[w]hether either §2 or §3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights…”

In Dennis, Jackson concludes that the clear and present danger test (the “Test”) should not be applied.[26] To this end, Jackson analyzed: the effect communism had outside the United States; the nature of communists; and the problems with applying the Test. Jackson’s analysis can be summarized as follows:

On the effect communists historically had on foreign countries, Jackson analyzed their effect on Czechoslovakia.[27] In Czechoslovakia, a communist organization disguised as a competing political faction secretly established its roots in key control positions “of police and information services”.[16] During a period of national crisis a clandestine Communist organization appeared and overthrew the Czechoslovakian government.[16] Establishing control of mass communication and industry, the communist organization’s rule was one of “oppression and terror”.[16] Ironically, as Jackson points out, the communist organization suppressed the very freedoms which made its conspiracy possible.

It appears to me that Jackson would find protections guaranteed in our Constitution absolutely worthy of advanced study and appropriate to all times. I went looking for more clues and found them. As it turns out he was a Nuremberg prosecutor and in the course of the trial western values as expressed in our documents as opposed to Sharia law were discussed. In an incredibly prescient statement he addressed the notion that our Constitution is compatible with Sharia law:

In any broad sense, Islamic law offers the American lawyer a study in dramatic contrasts. Even casual acquaintance and superficial knowledge – all that most of us at bench or bar will be able to acquire – reveal that its striking features relative to our law are not likenesses but inconsistencies, not similarities but contrarieties. In its source, its scope and its sanctions, the law of the Middle East is the antithesis of Western law.

Given the times in which we live, given any circumstance of “contrarieties,” do we want to see, or be told in study, our Constitution is a flexible, living document?

He77 no! Andrew McCarthy whose article is the source of the quote concludes:

There was a time, not so long ago, when America’s national security leaders and legal titans grasped the need to be informed about Islamic law as it actually exists, not as they wished it were. Until we recover that understanding, we will be able neither to protect ourselves nor to know how and when to intervene in the world’s most volatile region.

Perhaps too many of our present “titans” have sat through classes led by Professors like Richard Posner who can find “no value” in studying our Constitution. If you can find no value in our Constitution then you have no business aspiring to leadership where you are required to vow to uphold and defend it. You also have no business teaching classes on the Constitution and our law in our colleges, either in my opinion.

If we don’t study the Constitution how can we know what’s in it? How can we see it’s inherent value? I conclude that’s the point of Posner’s opinion. An ignorant populace is much easier to manipulate and control.

Here’s the deal. The Constitution is not a document filled with loop holes and exceptions. It’s purpose is to create a clear contract of equality for all and to protect the people from tyrannical leaders. What could possibly be outdated in that? How is that not valuable enough to warrant study? Our Constitution is brilliant because it is timeless. The only people who want it seen as pliable and flexible are those who, like children, want to have their own way. Without the individual protections our Constitution guarantees the people are set up as victims to be herded, silenced, and directed by any tyrant who happens to gain power. Sounds a bit too much like Sharia to me.