Constitutional Carpet Bombing

Curtis B. LeMay.  Not a model for jurisprudence.

The basic gist of the theory of the U.S. Constitution is that there are certain rights which are are set forth in it which the Federal Government may not trespass upon.  In the humming background of the Constitution was the idea that a greater law yet, the Natural Law, was at work and that people ought to try to tack as close to it as they could discern to be possible.

Beyond that, there were things that were good ideas, and bad ideas, and one of the bad ideas was to be ruled by a distant government.  That was one of the basic complaints about the British government.  It was a long ways away, and it did stuff it shouldn't have in an unknowing distant fashion.

In the 18th Century and early 19th Century, the seat of the Federal government was itself a long ways away from where most people in the country were. That reflects itself in the Constitution.

That's why the Constitution, including the Bill of Rights, originally restricted what the Federal Government could do.  Not the state governments.  The scriveners figured that locals would take care of what they wanted and didn't locally.

Through the development of Constitutional Law, it's come to be the case that the states may also not trespass upon the rights set out in the Bill of Rights, although they originally could.  That was an expansion really of the Natural Law theory of government, and it also reflected a basic distrust of state governments.

That's inherently anti democratic.

Let's state that again.  It's contrary to democracy.

Now, I don't want to get bogged down in one of those silly arguments about "we're a republic not a democracy".  M'eh.  A republic is a type of democracy.  We're not a parliamentary democracy, that's what we're not.

And we're not a pure democracy.

In a pure democracy, or total democracy, examples of which are exceedingly rare, the voice of the population is absolute on everything.  Ancient Athens is cited as an example of the same, even though it really wasn't as it had an enslaved population that couldn't vote.  Setting that aside for the moment, however, its voters could vote to do anything.  And as a result, they frequently voted to do bad things such as execute people as those people were currently unpopular.

As pure democracies do indeed frequently do bad things, no modern state has a pure democracy as nobody wants anarchy except Reddit Anarchist, who really don't want it either.  So every modern state has some sort of constitution that sets out what it can and can't do, save for the United Kingdom which has the mysterious and mostly non existent "English Constitution", but which has been operating on that fiction so long it behaves as if it really has a constitution.

The U.S. Constitution in its amended form has, as we know, the Bill of Rights.  Americans pretend they all love the Bill of Rights but in reality nearly every group in  the country has something in the Bill of Rights it absolutely despises.  That might be a sign that the founders of the country got the Constitution basically right.

At any rate, the rights set out in the Bill of Rights are really minimal.  Far more minimal in their original intended form than they've been interpreted to be.  But where they apply, they apply.  So, for example, you can't go around conducting unlawful searches and seizures, no matter how much the public secretly supports them (and they do), because a person has a right to be secure in their person.

But this also means that the Bill of Rights is inherently anti democratic.  You can't do those things as its against the Constitution.  If you want to, you have to change the Constitution.

Or what you do is argue to have the Constitution construed beyond its meaning to support your view of what it ought to say.

Now, this has really interesting results.

One of those results is that its made the Federal Courts, and more specifically the United States Supreme Court, a Big Deal.

The Federal judiciary is addressed in the Constitution, but not in a really terribly clear fashion.  It's clear that it was to be an independent branch of government, free of being influenced, theoretically, and much, by the Legislative and Executive branches, but beyond that, what's specified is surprisingly low.  For one thing, the Constitution never actually states that the Federal judiciary is the body that interprets the Constitution.

Early on, it decided it could and then ruled in favor of the Government in a master stroke in a decision. That established the precedence, and it seems logical that the Supreme Court would have to had taken that position, but it actually, at the time, didn't.  It could have said that everything the Legislative branch did was political and therefore they weren't to touch it. But they didn't.

We should all be thankful for that, as that's what makes us a "nation of laws", but by the same token, that actually makes the Supreme Court by far the most powerful body in the United States by far, particularly in an era when Congress has ceded a lot of its clearly delegated powers to the Executive.  And that in turn means that the room for mischief at the Supreme Court level is vast.

When we get down to Constitutional law, most of the Constitution is fairly straight forward, whether as an individual likes what it says or not.  The real challenge, therefore, should be interpreting new scenarios, what with the advance of technology and occasionally, but very rarely, some philosophy, presents a new scenario.  Are electronic communications of all type covered by the 1st Amendment?  Are remote drone strikes acts of war that require a declaration of war?  Can a state government use eminent domain to boost a local economic concern?  Do Bitcoins trespass on the the rights of the executive?  Stuff like that.

And questions like that do come up.

But its also proved an enormous temptation for the Court, in various eras, to act like Plato's wise oligarchs.

Indeed, both sides of that temptation prove to be constant sources of criticism for the Supreme Court.  If it sticks to the text, which is what it really should do and which is a basic rule of jurisprudence and statutory interpretation, it won't do and won't authorize a lot of things that some people want.  In some of those instances, those people will be upset as the Federal government doesn't have the power, if it the Constitution is correctly read, to do certain things and they either can't be done at all or the topic is left to the states.  In that latter case, people with causes in particular that are not popular at the local level get particularly upset as they feel that the Supreme Court should override democracy and create a right so that their view is forced on everyone, even if lots of people don't want it, or don't have their minds made up about it.

And in a democratic society, which this is, that's particularly problematic.  Truth be known, people are often much more personally conservative and traditional than certain other people like, and given a chance, they vote that way.

When an issue that is really heated comes before the Supreme Court, therefore, they should be really careful about finding rights that don't really exist, or conversely interpreting rights that clearly exist to be out of existence or nuanced in some odd way.  When they leap out in violation of either of those principals, what occurs is the polar opposite of what they figure they're doing.  They don't settle an issue, as people can read and look at the text and decide for themselves "that's not really in there" or "that's clearly in there and you're just making that up". And that causes contempt for the Court and preserves an argument.  It doesn't solve it.

During World War Two the U.S. Air Force became convinced that heavy bombing solved military arguments.  After the war, it was found that all it did was make the people bombed made.  In spite of that, we tried that again in the Korean War and the Vietnam War.  We didn't learn our lesson (at that time).  Misconstruing the Constitution works like that.

B-29s over Tokyo.  Late war we fire bombed Japanese cities.  That didn't actually cause the Japanese to surrender.