I've been thinking about the constitution a lot lately and all these claims of unconstitutionality with regard to different laws. I'd concluded that the constitution guarantees 'equality' but not 'fairness', and so by understanding the differences between 'equality' and 'fairness' one can accurately assess the constitutionality of a law.
I'm sure many would cry foul over this approach, but if you read the constitution you'll find that the closest guarantee of fairness (i.e., justice) is only a guarantee that a justice system will be established to determine justice on a case by case basis (an extremely prudent call to prevent the constitution itself becoming a document as large as all the combined civil and state court proceedings since then mid 1700's). So it begs the question: What is the difference between 'equality' and 'justice', or in other words what is to be decided by constitution and what by the justice system?
'Equality', I came to believe, has to do with the application or how a law is applied, rather than the impact of a law. In other words it's a yes/no test whether all the citizens are subject to the same law. Class-based gov't privileges, male-only voting, gov't imposed persecution of certain religions or ethnicities, and slavery laws all violate this rule of equal application to all citizens, hence they are unconstitutional. A law that only applies to heterosexuals for example is thus also unconstitutional.
But that's where many seem confused ... are speed limits unconstitutional because only those genetically pre-disposed to speeding feel limited? No, just because the law impacts then differently, it is still applied equally. Same goes for those who are genetically pre-disposed toward homosexuality feel limited by DOMA. DOMA is perhaps unjust, but the wording of the law is applied equally to all sexual orientations.
Then can you say a law limiting Saturday religious activities is equal and thus constitutional since all people have to abide by that law (be they 7th Day Adventists or Wednesday-worshiping Pagans)? Not if it can be proven that it was crafted for the express purpose of persecuting a person fitting a certain profile and in that case it seems cut and dry. Even so such a law would be immediately challenged and stricken, found grossly unfair and unjust in a court of law.
Can such a case them be made about DOMA? That is in fact what we are seeing done today ... as lawyers claim it is expressly for the purpose to persecute the gay community, but the case is not so cut and dry and the evidence is fairly overwhelming that most supporters are mainly interested in saving the institution of marriage in this country after seeing the institution (gay or straight) become a rarity in countries soon after gay marriage was sanctioned by their governments. Marriage is overwhelmingly understood and proven again and again to be the bedrock of a stable society throughout human history, and social scientists have good history and science based reasons to be deeply concerned about it's future if it isn't treated with the same sanctity that most people have had for it since the beginning of recorded history.
This seemed a pretty good theoretical construct to help simplify issues of constitutionality and fairness: i.e, the constitution deals with how equally rules are implemented from person to person, and the legal system deals with issues of fairness (i.e., justice). For some time I thought this simple distinction greatly simplified constitutional matters, and in fact I've yet to find a construct as concise and reasonable.
By using that distinction, it made sense how a constitutional law, a law everyone must live by, is not necessarily fair. It also helped me deduce that all laws are inherently unfair ... i.e., more favorable to one group than to another depending on varying conditions (needs, situations, predispositions, etc), and that our judicial system was a natural means whereby fairness could be meted out more equally by making laws and judgements to make justice more balanced.
Take the speed limit for example: My neighbor likes to drive slow, and I'm predisposed to drive fast (genetically I think as all my siblings are like that). It may seem unfair to some that by law he gets to drive his "happy speed", but by law I'm not allowed to drive my "happy speed". Now maybe going 25 mph down our street will someday be my "happy speed" too, but if it always drives me crazy to drive that slow, I'm okay with that. Why? Because: 1) it's constitutional since we both have the same rule: drive 25 mph down our street, and 2) if it's unfair, life is unfair - a fact I accepted long ago, and 3) I know genetically-customized speed limits are probably doable in the near-future but such a thing is not good for society for a number of reasons. So, not driving my "happy speed" is a sacrifice I'm happy to make for the sake of society, despite the fact that my neighbor get's to drive his "happy speed" everyday.
Take more controversial laws that seem to dance on the edge of constitutionality ... how do they fare with regard to my construct:
The DOMA (Defense Of Marriage Act) is constitutional according to the construct, and similarly to the speeding law it is not considered fair for everyone. 'Affirmative Action' on the other hand is certainly unconstitutional according to the construct, to which even Supreme Court Judge Clarence Thomas agrees: Affirmative Action is unconstitutional. Nonetheless, in the 90's it was ruled 'constitutional'. Did the construct fail?
I'm not sure if it failed or the Supreme Court fudged their definition of constitutionality, but what I do know is that it looks to me that the Supreme Court sometimes probably tells white lies to bring about fairness instead of admitting that they think that sometimes two wrongs really do make a right (whites were once allowed to be given preference, so now we're mandating that blacks be given preference).
Don't get me wrong ... constitutional or not, I think something should have been done to make our social system more equitable - even today Black America is disadvantaged in my opinion. So could that social equity have been better brought about some other way? Judge Clearance Thomas seems to think so. I don't know ... perhaps. What I do know is that simple definitions are better than complex ones and I think it must have been a rather creative definition for "constitutionality" to make Affirmative Action fit the definition. (getting offtopic, but imo the unique moral need for certain reparations should justify a temporary admittedly unconstitutional law to set things right, which would both highlight the importance of reparations while maintaining the integrity of the definition of constitutionality).
I also know most gay people would say that the DOMA is unconstitutional because the DOMA's rules will only result in legal action for people who are born with certain genetic predispositions. I see their point, but then I see that same point could be made about any law (the speed law will only result in legal action for those genetically predisposed to drive fast). Ensuing arguments, as far as I can anticipate can also be equally applied to both scenarios - equality must be judged based on the both the way the law is applied (not received) and the legally assessed main intent behind the law. Admittedly these distinctions leave the LGBT without constitutional teeth in this matter, but they still can fight the fairness of it in the state courts and surely they will and surely they will win anyway in the long run. This is by far the popular consensus among those both against or for gay marriage.
But at times I've wondered if my dismissal of the anti-DOMA point is weak. The most powerful argument the LGBT community has is that there isn't a difference between equality and fairness. They say the rules and outcomes of a given law are inseparable, and we're slicing hairs trying to take a sanitized approach to meting out justice in a way that's intrinsically messy ... trying to put into place some mechanical-like system that keeps us somehow unstained of any inequities that might result as we hide under the guise of "hey DOMA is constitutional".
Not that I think a legal system is intended to do that .. make justice seem less messy than it really is, Not that I'm an anarchist ... I do think however the written law can become a crutch to deal with difficult issues head-on on a case by case basis. I'm no longer, for example, such a fan of a constitutional provision for defining marriage being between a man and woman despite my insistence that it must not be defined any other way. In the end I find DOMA to be perhaps somewhat like Affirmative Action - a moral necessity that justifies it's existence despite the fact that, like "Affirmative Action" peoples of certain genetic make ups will be more limited with respect to what they want to do.
I don't like doing it the way they did affirmative action calling something clearly worthy of an exception to the constitution as constitutional - let's call these things what they are - reparations technically bordering on unconstitutionality but necessitated by dynamics that are the greatest threat to the bedrock of American society: the future average American family.
In the final assessment one must consider whether these reparations are important enough to support. In constitutional matters one MUST consider of the morals our founding fathers universally held, whether that they themselves would have welded them into the constitution themselves if they could have anticipated the precarious state of divorce and inner-city blight that our nation has. One must consider that the only hope for offsetting this damning trend is found with our youth ...those able to still have faith in our most common of sacred institutions which is being prostituted for selfish political gain of a small number who refuse to acknowledge the quickly ensuing and irreversible damage done to the institution of marriage in those countries that sanctioned gay marriage.
But I honestly think DOMA falls short ... and a fundamental re-understanding of the value and sanctity of marriage needs to envelope the nation if we hope to have a nation of strong families as we still have today. 1000 years from now I hope the forces for maintaining the traditional nature of that institution are just as strong, but not because we got too lazy to stay vigilant, thinking a constitutional provision would allow us to pretend that the institution is safe.
Regardless, there are issues too important to leave to future debate when the balance of public opinion can sway so radically, and in fact thats why our founding fathers created a constitution to protect us from the mobocracy into which democracy so frequently devolves. Our laws should be something future generations will always respect as being important enough to put into into writ. I think this was the thinking behind both DOMA. I'm not so sure it was the thinking behind Affirmative Action (It's intent being of a temporary nature).
Since both of those cases that dance on the edge of constitutionality we should at least ask if we're doing the right thing. Wherein is more damage done to the constitution:
1) to pretend a unconstitutional law is constitutional because it seems at least temporarily prudent? That is what I believe is currently taking place with a number of laws.
2) to conclude that we have a law or laws that are unconstitutional, but yet are so morally prudent as to supersede the need and authority of the need for "absolute equality at all costs"? This seems a more wholesome and honest approach ... one wherein the definition of the constitution can maintain more of it's integrity. Or,
3) should we conclude that all laws are exercises in varying levels of constitutionality?
Though I think there is some truth in the 2nd approach I like the last approach above the most ... to admit all laws involve a loss of freedoms somewhere and somehow ... to admit that every law impacts a group of people with one disposition, situation, or need better or worse vs. another group ... but to also simultaneously admit that the benefit of each law outweighs the harm caused by those factors .. and that it's the responsibility of of our legal institutions run by a living breathing institution that insures that balance exists, along with other checks and balances to keep everything honest.
It's the most humane approach to constitutional matters too. This approach allows a way to officially recognize those disadvantaged (for example, the gay community) as a result of any law and to provide as much compassion and means of compensation as deemed prudent.
We don't approach constitutionality that way though. Despite the fact that the constitution is in fact one of the most sacred documents of our nation and most revered with respect to it's authority in guiding and directing us, we've mistaken it's function as being a drop-in replacement for the mediation that we should be doing everyday to solve the differences between our ever-more disparate political and philosophical factions. As a result things are called constitutional that aren't, and things are called unconstitutional when in fact all laws have varying degrees of constitutionality associated with them. It's made for a bunch of awful rulings even at the highest level of our legal system, rendering the integrity of the word "constitutionality" not unlike a bowl of soggy oatmeal to be slung at any personal agenda an appointed judge wants to champion.
In the end what I've concluded is simply this: When you try to turn the constitutional and legal system into a mathematical formula or into a substitution for timely intelligent interactive and compassionate dialog, the system breaks down. Although you can rough in some basic guidelines from which a level of constitutionality can be ascertained, relying entirely on such criteria as if it were some justice-machine is a poor substitute for the mediation that takes place in the justice system. Mediation should be the rule rather than the exception. As a civil society it seems that we as a people should stop engineering a system that automatically meets our rights, privileges and justice according to some complicated formula agreed upon by biased appointed judges and conniving lawyers.
Instead we should hope to work these things out as needed having the prescience of a seer, the wisdom of a sage, and the intellect of a genius and to not be lazy hoping for constitutional provisions to do our thinking as to what's right for the present and the future. Instead of provisions, we should consider the merits of each altercation on a case-by-case basis, and no long champion the foolish and increasingly meaningless cries of "unconstitutionality", or cries to amend at every incidence of injustice. No longer should we allow judges to mangle the meaning of "constitutionality" as suits the will of their secret constituency to pass whatever they want. We should stop and ask ourselves in a marginal majority in a Supreme Court ruling is adequate proof that their verdict is just and based on sound principles (in fact it should actually be very disturbing that we automatically assume absolute veracity regarding any decision that involved disagreement splits nearly right down the middle). Justice isn't nor should it ever be believed to be so flexible and dubious.
I wish we could work toward fairness by common consent, and not just equity by vote, and I wish we could do it without government involvement. When government involvement is necessary, I hope we can keep it minimal since all laws are intrinsically without feeling and without personal regard. I hope also people would step back and be more prudent ... asking, "have I investigated what similar laws have done elsewhere, and what do I or my closest associate stand to gain in my cause? Are there incidents in my past that have made me unusually biased, and if so should I try a little harder to familiarize myself with others and other opinions coming from the best my competition has to offer rather than letting myself believe their worst to be their spokesman?"
These are far easier said than done. I don't seek out the best of those with opposing ideas, but I've been blessed to know some who are just that. I still mainly disagree, but I also disagree with my old party line far more than I used to - and it has been unpleasant, but ultimately a personally peace-enabling process, and one that has greatly increased my capacity to love whom at one time I'd have considered my enemy.
I highly recommend it to others to seek out the same experience but with regard to the most kind, and considerate, and intelligent of those they oppose. Toss Hannity and Olbermann aside and stop joining in on the hatefest. If you're so entrenched in your party that you know nobody outside it you're most likely deprived on some concepts that have never been fairly presented to make sense in a way that can really expand your preceptions. Get out of your comfort zone, and seek intelligent life elsewhere. If you don't know where to do this in person, you can try online. Start looking here: http://findblogs.com/political_economics_blogs
I've come to believe in both the goodness and the fearfulness of people, enough that I'm convinced if anything will undo America it is our lack of unity, given a public that is ever fearful of itself, ever more willing to shout reported differences and failings, ever more willing to mock without understanding, and ever more willfully stubborn to hear the story from the accused. Partisanship and snaps to judgement are destroying this country (and this world) faster than the best of mankind could possibly hold it together. Reactionary politics are strangling our legal and economic systems with laws and rules intended to favor one's own root constituency instead of favoring the citizenry as a whole. This is especially true for politicians and teachers and pundits who've pretended to pull-together and hold beer-summits while really playing only to their native constituencies under the table. Never before has the word "transparency" been so ironic.
I think we need to admit that we're all muddling through this - I know I am, and I know I know very little, yet even so it's obvious to someone as clueless as me that either I have a better grip on the unconstitutional nature of all laws than do some Judges in the Supreme Court, or that they're knowingly deceiving the public because they're afraid to admit to the public that our laws aren't as sacred as each person's ability to solve their differences in person.
It seems that while we admit there are gross inequities all throughout in the system it makes sense to also recognize our responsibilities as fellow citizens to those who feel victimized, finding common ground and showing compassion despite our differences. I've yet to see a situation where true compassion (or at least an effort to feel such) didn't at least begin to forge a way forward, even if it's just by saying, "I know this stinks for you ... and I'd like to see your side of the story", and then as a listener practice the most brotherly part of your religion or tradition whatever that religion or tradition might be.
It may not help every time, but this wrangling of the constitution as some sort of twisted rag that people use just to whip at each other ... I don't think that's what the constitution was intended for. To me, it's more of a guide, more than jsut any guide though ... it's the supreme guide for how we should govern our land - an example, and a standard. A standard FOR ME, so I can be more fair and just in my treatment of those around me. A standard FOR ALL, willing to take the time to study and weigh the weightier matters on a case by case basis, fully aware of the freedoms lost and inequities bestowed by every law made so we might not make laws lightly nor do so without provisions to insure disadvantaged parties receive some sort of restitution or at least official recognition of the sacrifice they must then make in the interest of the well-being of society.
Spock said the needs of the many out-weigh the needs of the few. Kirk said the needs of the few outweigh the needs of the many. It's our job to simultaneously be logical as Spock, and sensitive as Kirk ... and that will never happen if we expect legal writ to do our thinking for us my making more and more laws, especially since the law only gets more inflexible and oppresive over time.
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