Saturday, November 13, 2004

Judging the Judge

Many have expounded upon and much has been written, spoken, or set out upon the ether regarding the “living” vs. “original” Constitution. Few would argue that this document is not a marvelous and enduring piece of work, however much it currently may or may not be seen and used in an originalist sense. What seems little discussed is the distinction that should be made between the enduring characteristics of human behavior and the technological transformations that have catapulted the lives of even ordinary humans into realms never imagined in the days of our Founding Fathers.

For them transportation and communication moved at the same speed. What now appears to us as simultaneous was then sometimes separated by a matter of months. I am inclined to believe that our speed of transport would for them be easier to comprehend than the instanteousness of our communications. Even in their day humans had imagined flight but none ever spoke of moving thought at the speed of light. That dimension was from them hidden as others may be from us.

I agree with Mr. Napolitano that many engaged in the construct, enforcement and interpretation of the law have with little compunction or consequence chosen to ignore the Constitution and the rights thereby granted to the citizens of this fair land. But I seem to be getting the impression that the Judge would prefer that we all be strict constructionist. If now we still had only human foible, fallibility, greed, cruelty and ambition to consider I would concur. But we now have a much amplified capacity for misdeed to consider should we attempt a major revision of the Constitution. What’s interesting is that there is little if any of what the authors of the Constitution considered that we could, without peril, ignore. But we would be forced to incorporate into this “modernized” version how technology has manifoldly amplified our capacity to reek havoc upon ourselves and others.

We must therefore grant to ourselves access and use of the same means available to those who would criminally corrupt or destroy our society. I find it unlikely that a return, if we were ever there in the first place, to Constitutionally correct practices at all levels of our crime-combating and punishment-imposing institutions is either possible or even desirable. Surely some adjustments must be included in the rewrite. The question would be how to do it without entirely subverting the original intent. I am not wise nor erudite enough to offer suggestions.

But as we all know there is no free lunch. There is a price to pay for progress. We may be free from hunger, disease and pestilence but we are more interdependent and beholdin’ to others than our forefathers could have imagined possible. There are no more cowboys or mountain men unless they are practicing hermits. (I must here insert that I haven’t given much thought to the Amish and how shunning modern creature comforts may preserve their human dignity and integrity – wonder if bin Laden has exempted them from his Doomsday list.)

Would help to have some wise men and wise women to lead and assist with a modernization of the Constitution. Would we even recognize them if we saw them? I’ll let you know if I would like to nominate Mr. Napolitano.


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