I sometimes feel as if almost everyone in the United States takes not only the laws, but the Constitution, if not most of the foundations of our nation, out of the context in which the framers set them, all the while screaming about rights that the founders never envisioned.
The state of Utah, and a number of other states, have been attempting in various ways to circumvent federal rules and regulations established under laws passed by Congress, and the rationale for these acts is that Congress is acting against the Constitution, but Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In short, federal law supersedes state law. And, if the Supreme Court declares a law Constitutional, then it is. Period.
You may not like the law. You can certainly lobby and try to persuade Congress to change it, but state laws cannot overturn a federal law, except by a successful appeal to the Supreme Court… and yet a number of state legislatures have passed or attempted to pass laws in contravention of federal law. Doesn’t anyone remember the bloodiest conflict in U.S. history, caused because a handful of states insisted that state laws preempted federal authority?
As a side note, interestingly enough, there is a section of the Constitution which states that Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This does suggest that the Founders did not believe that information should be “free.”
I just read about a lawsuit in which the plaintiffs contend that they have the right under the first amendment to inundate a website that they oppose with such a volume of internet traffic that it results in denial of service and renders the website inaccessible to others. Come again? You have the right to use your freedom of speech to deny others theirs? I don’t see this in the text or the subtext of the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Now the case in point sounds extreme, but how would that be, in practice, much different from the impact of the Citizens United decision, which essentially said that, if you have enough money, you can buy up the airwaves to the point where you deny others the right to express their views. The Founders, with the possible exception of Thomas Jefferson and his mistrust of the power of massed financial interests, never envisioned a modern communications system where “free speech” is not free but purchased by the minute.
Likewise, there’s the bit about an “establishment of religion.” In the context of the time, and even in the language, it’s clear that the founders did not want Congress establishing any religion. Yet lawmakers have attempted and in some cases been successful in legislating religious doctrines into law, in issues such as abortion, evolution, and in school curricula and even public school textbooks. Yet these same legislators are all too often the ones who complain that “liberals” or others are thwarting the intent of the Constitution.
Then, there’s the second amendment to the Constitution. The words are fairly simple: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” How does context matter? To begin with, at the time the amendment was adopted, “arms” that could be used by the people consisted of swords or sabres and single shot pistols and rifles. Anything larger or more deadly, such as cannon or warships, was clearly the province of governments. In addition, although the U.S. Supreme Court has ruled that the Second Amendment does convey an “individual right” to keep and bear arms, it has also held that such a right exists primarily as a right of self-defense. Both historical context and law would strongly suggest that it is stretching the Second Amendment, if not smashing it, to contend that it conveys an inviolable right to any kind of weapon an individual wants to possess, the National Rifle Association notwithstanding. And, in fact, the previous ban on assault weapons was held to be Constitutional.
Now… all of this won’t persuade anyone who thinks differently about these and other issues, but for the record, I’m suggesting that the actual words of the Constitution and the context in which they were adopted do indicate what the Framers had in mind… and not what we’d like to hope they had in mind.