Understanding Constitutionality of Law

From time to time I come across someone who expresses their belief that the only understanding of the Constitution that is required is a simple reading of the Constitution. If this were the case, a class on the First Amendment would seemingly only require an afternoon, at best. A lot of folks happen to think that what occurs in courts is either the end result of personally held beliefs of judges, or random. Reading the Constitution and understanding the clear meaning of the words there can be frustrating when one attempts to understand the reasoning behind a judge's decision. For, example, the First Amendment tells you that Congress shall make no law abridging speech. Try yelling something obscene at someone and defending yourself in court with the brick of "free speech." Courts have faced these situations earlier and have come up with ways to abridge your free speech rights in ways that make for a civil society. Take the example of yelling fire in a crowded theater. In the mad rush to escape, people are injured, perhaps killed. Does the utterrer have King's X when it comes to this speech? The courts have said, no.

Building upon prior decisions by previous courts is known as stare decisis. "Previous decisions."

Whatever has been legal before, is legal now.

Understanding the role played in appelate courts, like our Circuit Courts or the Supreme Court, is essential to understanding that the clear words of our Constitution have been modified over the years by our courts decisions on previous cases. Stare decisis.

Studying the First Amendment is therefore a lengthy endeavour. Not an afternoon's work. Even more daunting are Commerce Clause cases. This is due to the fact that the courts have adopted the attitude that certain cases deserve outcomes not expressed in the limits on government enumerated by our Constitution. These are the cases decided by what are referred to as "activist" courts. Now, as a more careful reading of the enumerated powers given our government by our constitution are more carefully followed, a new breed of "activist" is being bred; the Originalist. Or, the Strict Constructionist. These are jurists whose simple readings of the words of the Constitution have found that some of the decisions that have allowed far-ranging intrusions into our personal liberties may have been poorly decided. It is this "revisionism" that is coming under scrutiny by the Left, who have been well served previously by activist judges.

So, one can be labelled an activist for either finding meaning that was never there before, or for refusing to adhere to poorly crafted precedent when overturning poorly written legislation. Therefore, to more fully understand the issues surrounding Judge Vinson's recent declaration that Obamacare is unconstitutional, I offer you this illuminating, and at times humorous, understanding of the issues (.pdf) as presented by Jonathan Adler in the Lewis & Clark Law School Review.

Read, enjoy, learn.

UPDATE: If you took the time to read the Adler article, the brevity of the comments here will make a lot more sense.

Pornography

"I know it when I see it." (Justice Stewart Potter.)



I understood at an early age that the decision to abort a fetus was dependent upon the counsel of ones cleric, doctor and family. Before Oregon passed a law, which removed criminal penalties for abortion, in the 1960's, I knew that women, girls, girls like my sisters, were getting abortions in what were referred to as back-alley abortion clinics. Or, worse, self-aborting. With a wire coathanger. And women were dying.

I, myself, am opposed to abortion. My wife and I were older when we decided to have our first child, and there are dangers involved when a woman approaches a certain age. So we did the usual thing, and in the case of my wife's age, the amniocentesis was paid for by the insurance company. But amnio didn't answer the particular question; if there is a genetic error discovered through testing, what would be the rational and right thing to do?

Let me put aside my wife's thinking. I knew what her thinking was. If the fetus had a flaw, end it. This was not my natural impulse. So, I had a talk with a man who I knew had a daughter with Down's Syndrome. The upshot of that conversation was, once you hold that baby in your arms, it doesn't matter if it's a puppy. You're going to love it.

Given how red and rat-faced ugly my boy was, I got to tell you, it's true. And reading about child-bearing doesn't prepare you for the mess that is your new baby. But holding your newly born baby in your arms is a feeling that we each are unprepared for. My son. What a beautiful, red-faced critter! Marvelous!

Life is a gift. It doesn't drop out of the sky. It is given you by your mother and father. The miracle of life is a gift that comes bound up with responsibilities and requirements that affect and determine your actions for every subsequent day of your life. For those of us who appreciate that our existence is different from the existence of other things--like rocks--the miracle of life is an awe-striking moment. For some of us, seeking a reason for existence, we tend to look for an answer in terms of Our Creator. For others there is an attempt at certain tautology which reduces existence to the mere creature of the random. In any event, the biological impulse has to be recognized, nutured and respected (if not revered.)

The video here is jaw-droppingly obscene. Which, I suppose, is the natural product of a way of thinking that reduces the miracle of life into a garbage disposal industry. The heartlessness, the uncaring thinking, the repudiation of the value of human existence underscores a belief I hold when talking to those who trumpet the values of a "woman's right to choose" as having a higher moral plane than those of us who believe that abortion is wrong, and should be rare.

For me the issue of when life begins is simple: zygote.

But ask any student graduating from your public schools when life begins. And then ask yourself, why can't these students see that it's more important to live your own life, than to have your healthcare, housing, meals and education provided you by the state?

In the world of the Left there are no miracles. Mentioning miracles is an attempt to foist religious views upon others. And no one should have to live a life where we recognize that there are miracles occuring around us, every day.

That would be wrong. Almost, pornographic.

Video found at PJ Tatler. H/T Instapundit.