Ernie's Mannequin

A recent article in the Washington Post noted that over the course of three decades, the NRA has succeeded in changing the Supreme Court’s understanding of the Second Amendment to the extent that the “orderly militia” clause which begins it has been effectively removed.  But the court otherwise seems to view an assault rifle as equivalent to an 18th century musket. On Wednesday, the Supreme Court ruled that securing a search warrant was required before a breathalyzer test of an apparently alcoholic motorist who refused it, even when it was possible that the time required to do so would make the test ineffective.  Drunken riders on horseback in 1789 had no such protection. Also on Wednesday, the Senate declared gun control legislation defeated because it lacked 60 votes.  While the Constitution specifies passage only “by the rules established by each house”, the historical interpretation has been passage by majority. The Court’s decision affirming Obama Care, which I agree with and support, was based on a transparently arbitrary decision by Justice Roberts to treat a penalty as a tax.  At a recent oral argument before the Court, Justice Scalia remarked that the issue being discussed had only been around 30 years and it was not clear whether it was ripe for decision; it was also not clear whether he was serious.  Under a Court ruling dating from the 1880’s, a corporation is a person just as are you and I, and that precedent is used today to justify unlimited campaign spending by corporations.  And so on.  It is becoming more and more obvious that the legal theories governing interpretation of the Constitution can no longer cope with the problems of the society around it.  The issue is not the Constitution itself, but the thicket of legal theory surrounding it.

We just returned after a few days visiting family in New Orleans, one of the most charming cities in the world; each time I’m there, the city remains the same, but a whole new flavor of it is revealed.   This time, a restaurant waiter recounted a vignette few outsiders know, but with which my family was fully familiar, regarding it as just part of the life of The Big Easy.  As the waiter told us, when Ernie K-Doe, a prominent jazz musician who led the Treme Brass Band and who was noted for his style at jazz funerals, passed away, his widow made a life-sized mannequin of him and planned to stand it beside his casket at the funeral. At the funeral, the mannequin was not yet ready, though the guests were expecting it, so K-Doe’s body was propped up beside the casket. Many guests thought the body was a mannequin.Later on until her death, she had the mannequin preside by the bar at her lounge and accompany her whenever she dined at the restaurant.   Subsequently, when it would be brought to the restaurant, the waiters would acknowledge the mannequin and talk to it, and generally accept it as just a routine visitor to the restaurant. Astounded at how routinely the restaurant staff treated it, I asked the waiter whether the lady was crazy, to which he smiled and replied, “You be the judge.”

The concepts behind our Constitution are not just the English ideas of John Locke. Another thinker important to the Constitution was Montesquieu, who published his The Spirit of the Laws in 1748.  Regarded by many as the father of political sociology, he wrote about types of government, due process, separation of powers and abolition of slavery, but equally importantly, about the relationships between a people and their laws which infuse the laws with the “spirit” of the people. The “spirit” is the overriding principle which is the basis for a people’s interaction with their government.  Montesquieu wrote that the spirit of a democratic republic is “virtue”, which he defines as the willingness to place the public interest above the private interests of the individual, and a shared political liberty which comes from a system of dependable and moderate laws. It is that spirit which energizes the law and makes the system work.  Without that spirit, the system of law fails.   And, most importantly, the laws are shaped by their interaction with the geography, climate and culture of the people.  I would add to that technology, a major shaper of our modern cultures.  As those things change, the laws must change with them, or that constant spirit which energizes the laws is lost.  Montesquieu  provided the framework by which De Tocqueville later analyzed American democracy, and we still cannot find a better understanding of what makes “we the people” just the way we are.

The legal theories of strict construction and original intent, and the thicket of precedent opinions that have grown around the Constitution over the last 220 plus years have sought to preserve as a holy document the Constitution in ways never intended by its authors. The founding fathers made it clear that they understood that interpretations would change as the times change. They wrote at a level of abstraction that would facilitate doing so. They had no intent of making 21st century telecommunications law fit within the framework of an 18th century law, except by the constancy of the spirit that infused it. Our Justices seek to carry around a mannequin, hoping it will be mistaken for the real thing, but what they, aided by all of us, carry about increasingly lacks the spirit. And we behave as though it is indeed the real thing. Are we crazy? You be the judge.