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Why Have A Constitution?

Posted by Rick · January 15th, 2005 · 1 Comment

This afternoon, I read perhaps one of the best explanations ever for why the Constitution of the United States is a valuable document.

It doesn’t fit with what most Americans probably think these days — which, ironically, seems proof of the wisdom of the Founders in establishing a nation based upon it.

In answering the question, “Why A Constitution?,” Professor Erwin Chemerinsky says:

It is hardly original or profound to answer this question by observing that the framers chose to create their government in a Constitution deliberately made difficult to change as a way of preventing tyranny of the majority, of protecting the rights of the minority from oppression by social majorities. If the structure of government was placed in a statute, there might be an overwhelming tendency to create dictatorial powers in times of crisis. If protections of individual liberties were placed in statutes only, a tyrannical government could overrule them. If terms of office were specified in a statute rather than in the Constitution, those in power could alter the rules to remain in power.

Thus, a constitution represents an attempt by society to limit itself to protect the values it most cherishes. A powerful analogy can be drawn to the famous story from mythology of Ulysses and the Sirens. [Footnote deleted.] Ulysses, fearing the Sirens’ song, which seduced sailors to their death, had himself bound to the ship’s mast to protect himself from temptation. Ulysses’ sailors plugged their ears with wax to be immune from the Sirens’ call, whereas Ulysses, tied to the mast, heard the Sirens’ song, but was not harmed by it. Despite Ulysses’ pleas for release, his sailors followed his earlier instructions and kept him bound and unable to heed the Sirens’ song. His life was saved because he recognized his weakness and protected himself from it.

A constitution is society’s attempt to tie its own hands, to limit its ability to fall prey to weaknesses that might harm or undermine cherished values. History teaches that the passions of the moment can cause people to sacrifice even the most basic principles of liberty and justice. The Constitution is society’s attempt to protect itself from itself. The Constitution enumerates basic values — regular elections, separation of powers, individual rights, equality — and makes change or departure very difficult. — Chemerinsky, Constitutional Law: Principles and Policies 7 (2d ed. 2002) emphasis added.

The Constitution of the United States has made our nation powerful, moral and revered not because it protects the rights of the Majority. The rights of the Majority need no protecting. Any government foolish enough to blatantly strip the Majority of its rights would soon find itself wiped right out of existence. The power of the vote ensures that such a government would be voted out of office. Failing that, the government would simply be unable to control the Majority as it quite literally rebelled. (The military might of the United States government currently simply means that a larger portion of the population would have to be significantly angered before such a rebellion could be successful. It does not prevent it happening. Thus, again, the Majority is pretty well able to protect itself from any rogue govermental entities.)

For this reason, it’s not the Majority that needs protecting. And it’s not the Majority that the Constitution protects. It is the Minority: those portions of the nation’s populace who find themselves at odds with the Majority. When Americans — as Chemerinsky notes — are tempted in times of crisis to molest the rights of the Minority, that’s when the Constitution is needed. When we talk about stripping away the rights of Muslim-Americans because a small portion of non-American Muslims have become a threat to us (even if it’s because of our imperialism), that’s when our Constitution matters. When homosexuals, previously cowed by the Majority views of them as “abnormal” or “deviant” begin to assert their rights as citizens of the United States co-equal to heterosexuals and there is a backlash, as the Majority abuses the law to reinforce its suppression of them, that’s when the Constitution is needed.

So why should we continue to support a Constitution which limits us like this? Why should anyone listen to people like me, when we argue that the Bush Administration is undermining the Constitution and that this should worry all Americans? After all, it’s not “activist judges” and other heathen who hamstring the Majority when it wishes to trounce on the rights of homosexuals and other Americans — not part of the Majority — whom the Majority wishes not to see. It’s the Constitution itself that is responsible for this. And, as Chemerinsky further notes:

Although the analogy between the Constitution and Ulysses is appealing, there is a problem: Ulysses tied his own hands; a Constitution binds future generations. Chemerinsky, supra, at p. 7.

So, doggone it!, if the Majority today wants to ignore the Constitution, why not? Why the hell should neo-Pharisees, for example, not be allowed to strip homosexuals of the rights enjoyed by “normal” Americans who are part of the Majority? Why should neo-Pharisees be forced to adhere to some quaint 18th Century rule (i.e., the First Amendment) requiring a separation of Church and State? Why shouldn’t America be a theocracy if that’s what the Majority wants?

When you think about it — but you must be capable and willing to think about it — the reason is simple. It’s because today’s Majority could be tomorrow’s Minority. And so long as the Constitution is the Law of the Land in the United States, it will protect them when they fall from power just as it is meant to protect those who are out of favor right now.

Today, the neo-Pharisees are in the ascendancy. They constitute the voice of the Majority in the United States. But there’s something about this that even they should fear: they are not actually the Majority — they are only, as I said, “the voice of the Majority.” Right now, they are loud. They have the ear of government. George Bush — perhaps the world’s greatest neo-Pharisee of all time — has successfully stolen two presidential elections. And because of that, the rest of the neo-Pharisees are emboldened. They are flexing their pretend godly muscles, their faux religiosity. Eventually, it’s going to piss people off. Eventually, the people will turn on them.

And unless George and his friends outright pull off a coup in 2008, there’s every possibility that the next President will not be one of the neo-Pharisees. There may be a backlash against the neo-Pharisaic right-wing and they — and, unfortunately, along with them, the true worshipers of the Christian G-d and other truly religious people — may begin to suffer. But the Constitution, if it survives the current Administration, will protect them.

Up until now, the Constitution has done a pretty good job. But without the support of wise Americans who may not themselves need its protections — as the true majority of us don’t — it can fail.

Obviously, while there have been successes, there also have been significant failures, such as in the internment of Japanese-Americans during World War II, the long history of discrimination against racial minorities and women, and the persecution of alleged communists during the McCarthy era. Chemerinsky, supra, at p. 8, footnotes deleted.

And now, we risk another failure of the Constitution. For the Bush Administration — with the tacit assistance, if not outright encouragement, of the so-called Religious Right — is actively working to dismantle the Constitution.

And if you continue to sleep, if you continue to ignore what they’re about, if you continue to be unappalled and unconcerned about it, you may find that when the day comes that you and your group needs the protections of the Constitution, they will no longer exist.

Categories: Constitutional Issues


1 response so far ↓

  • 1 Bunny Chafowitz // Jan 15, 2005 at 5:52 pm

    I sit here, after reading your post, Rick, and contemplate how to express in mere words what I feel in my heart.

    I am afraid. Afraid of what the future may bring. I am frustrated. Frustrated because of what others are doing to my country. I am angry. Angry with myself due to the fact that I am one of the people who have done nothing.

    I sit here, after reading your post, Rick, and contemplate on what I WILL do to resist the temptation of the Siren’s song–the song that tempts me to do nothing because it’s easier than doing something.

    What will I do? How will I contribute politically to the fall of the Bush regime and others like it that may come along? I don’t know yet. But something in your post resonated in me.

    I’ll keep you “posted” on my decision.

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