by jgalt on Mon Jun 28, 2010 10:08 pm
I am in complete agreement with Jason - and have believed this since long before I heard him speak about it. The short version, for those who don't want to listen to the show...:
The Bill of Rights should never have existed in the first place. The Constitution sets out the specific powers that the federal government is to have, i.e. it has only those powers specifically granted to it in the actual text of the Constitution. Since there is no power given in the Constitution for Congress to make any law abridging the freedom of speech, the freedom of the press, the quartering of soldiers in citizens homes, the taking of property without due process of law, etc, there is absolutely no reason to explicitly state that Congress could not do these things. By including a Bill of Rights, its supporters effectively planted the idea that Congress could in fact do things that the Constitution granted no power to do, thereby setting up the concept that the federal government could do pretty much whatever it wanted to, so long as it didn't do the things explicitly forbidden to it by the Bill of Rights. I suspect that this is the fatal flaw in the Constitution that has allowed for the situation we are in today...
Also, tweener, while I agree wholeheartedly that the "strict constructionists" on the SCOTUS had little practical choice to rule in any way other than the way they did because of precedent, that doesn't mean the ruling is in any way consistent with a "strict constructionist" point of view. It is, in fact, 180 degrees opposite, with the four voting against it effectively ruling in favor of upholding the Constitution as it was intended - though they get no credit for this, as this was most certainly not their intent.
The Constitution is now officially a dead letter. It has effectively been so for decades, but is officially as of today. The structure may still seem sound to those who cannot, or refuse to, see the quite obvious signs of collapse, but it is like a dam that has reached the point where cracks have irreversibly begun to form that cannot be reversed. The devastating collapse might yet still be averted, but it isn't likely. Controlling how it comes apart & limiting the amount of damage that is done is the best we can hope for - accomplishing that will require a tremendous amount of very hard (& dangerous) work, and the cost will be stupendously high.
The large percentage of those who use it as justification for some policy or another which they support, do so only because it is still a very effective symbol of the freedom & liberty which many still seek, but which is likely gone for good - unless, of course, some small percentage are willing to stand up and fight for it... We'll see what happens...