GINSBURG V COOLEY

Friend of mine hands me a piece cut out of the newspaper. “What do you think about this, Judge?” Happens all the time.

So here I am, 7 AM of a Wednesday, morning, about to cross verbal swords with Noah Feldman, a Harvard Law Professor who applauds Justice Ruth Bader Ginsberg for saying that South Africa’s constitution is better than ours.

Feldman’s op ed in the Tampa Tribune cites a forthcoming law review article which asserts that countries writing new constitutions these days are not so inclined to mimic the U. S. Constitution as they were half a century ago.

Not to worry, says Feldman. Uncle Sam is still the leader of the free world. Not because of the document composed in Philadelphia in 1787, but because of the way it has been used and abused by the Supreme Court.

Doesn’t matter what Madision, Jefferson, Hamilton and the rest intended.

What matters, says Professor Feldman, is what the constitution ought to mean. Today. In 2012. It is, after all, “a living thing, growing and developing in keeping with changing needs, institutions and circumstances.”

The great jurist and scholar, Thomas M. Cooley must roll over in his grave.
Here’s what Cooley said:

A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principle share of the benefit expected of written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the common law…a court or legislature which should allow a change of public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty.

All of which is not to say that Justice Ruth Bader Ginsburg was wrong when she opined that Egypt ought to look to South Africa rather than the United States for a model constitution.

I don’t know anything about the South African constitution, but there’s no doubt in my mind that the U.S. Constitution has a few barnacles on it that need attention.

Take the interstate commerce clause, for example. The Constitution gave Congress the power to “regulate interstate commerce.” Two hundred years later there are jet airplanes, interstate highways, telephones, television, computers and ubiquitous Walmarts. Seems like all commerce is interstate.

So Congress undertakes to regulate everything. Read “regulate interstate commerce” to mean “control the national economy.”

So now our ‘living and growing’ constitution permits Congress to tell a barber in Dade City what he can charge for a haircut and how much to pay the kid who sweeps the floor.

Professor Feldman insists that no sane constitution drafters would want future courts to argue about what they intended. Then, rather inconsistently, he says that when a constitution is new –‘fresh from the box’- as he says, the intention is pretty obvious.

That’s the great American constitutional dichotomy: some say the constitution is old and sacred and shouldn’t be changed; others insist the constitution is old and irrelevant and doesn’t have to be changed.

So the John Birch Society and the ACLU make common cause from opposite ends of the political spectrum. They both oppose a convention to propose amendments.

Ginsburg and Scalia on the same side?

You betcha. When you are one of only nine people who get to play God every Monday morning, who would be in favor of letting ‘we the people’ have their say?

Me. And maybe a few other folks. There are now 153 average Americans from 36 states who have registered as delegates to Convention USA.

It may be Lent in America, but Easter is coming.