1307 Obama - Gulliver

Rick Wagner Wednesday, April 08, 2009

Normally it would not seem the United States Constitution and Lemuel Gulliver would have much in common, but this fictional character and our bedrock document of government have received similar treatment.

Just as our traveler, Gulliver, was a giant in the land of Lilliputians, so our Constitution is in our Republic. And, as Gulliver was restrained as he slept by tiny men to bend him to their own purposes, such has been the recent treatment of our founding document.

Jonathan Swift’s character in Gulliver was written as political and social satire and, while the context of the era may have lapsed, the messages still ring true.

In the annals of history, the United States Constitution and its framers loom as giants. Many of their interpreters are diminutive in comparison, but they seem forever busy turning the Constitution from a great shield for the citizen to a sword for the activist.

Jurists seeking to insert substantive due process into the document and let judges discover rights not written, but divined by their interpretation, threw the first silken cords. A case in 1967 supplied a fragment of language that serves as the jumping off point for this misapplied reasoning, as the Supreme Court quite reasonably struck down a law from the Jim Crow era outlawing marriage between different races as being antithetical to the clause guaranteeing equal protection under the law. Toward the end of the decision, the court added language that marriage was a substantive right.

This implied that there were rights granted individuals beyond those named by the Constitution, which could be interpreted from a meaning given to the language of the document. This gave rise to future courts interpreting “shadow” rights that were often used as battering rams against social norms.

This interpretation of “shadow” rights most famously is found in the decision of Roe v. Wade, preventing the states from interposing legal barriers to abortion on the grounds that such action would violate the court’s discovery of a fundamental and substantive right to privacy in the Constitution.

This decision is often misunderstood to be about whether the Supreme Court views abortion as legal. The question actually is whether a right to privacy exists that can be interpreted to prevent the states from deciding if abortion should be legal or regulated within their individual boundaries.

Employing a visioning process that discovers intentions beyond the pen of the author, and elevates them to be substantive and fundamental, makes it nearly impossible for the states or the citizenry to affect their exercise.

This becomes important as we consider one of President Obama’s first judicial nominations.

David Hamilton presently is a trial court judge at the federal level whom the president wishes to elevate to the appellate court in Chicago. Judge Hamilton’s interpretation of the right to privacy and substantive due process has led to him to declare unconstitutional a law to require convicted sex offenders to allow authorities access to their personal computers.

The New York Times noted that the judge, in his decision, felt that the amendment cut into the heart of a person’s right to privacy in his home. He added, “The ability of the individual to retreat into his home and therefore to be free from unreasonable intrusion by the government stands at the very core” of constitutional protections against unreasonable searches.

This makes a jumble of whether a search is reasonable within the sanctity of one’s home, a possibility that clearly exists within the Constitution, by placing it in an almost subservient role to a right to privacy, which has only been interpreted to exist in the Constitution.

Such a view is troubling to those who believe the framers knew what they meant and were capable of deciding if a right to privacy was important enough to be written into the Constitution and placed upon the same level as the Bill of Rights’ prohibition against unreasonable search and seizure.

I hope that those who treasure the genius of our Constitution do not sleep like Gulliver.