Moses & The Constitution

Today's Constitution is a realistic document of freedom only because of several corrective amendments. Those amendments speak to a sense of decency and fairness that I and other Blacks cherish. – Thurgood Marshall

The one thing that troubles me about many on the right and the left is both sides belief that the Constitution is untouchable and engraved in stone. The American Constitution despite the proclamations of tea-baggers was not written by the hand of God Almighty, instead it was written by a group of 18th century men with the limited knowledge of the world and history that they had. I will grant strict constructionists the fact that many of the concepts they enshrined in the constitution were ahead of their time, but let’s not forget all of the concepts that they neglected in the document or perverted due to their prejudices. All “men” were created equal so long as they were men, white, and property owners.

I believe that instead of looking at the constitution as absolute and complete we need to view it as a living, breathing document. A document whose basic tenets we hold untouchable but one where we also recognize that it can be amended to include those situations that men of the 18th century would never have imagined would exist. How could we expect them too, unless we believe that it was written by the hand of God a position which I personally do not subscribe to? Students of history can attest to the fact that the complexion of our country has changed dramatically and continues to change. There are those who want to cling to the America of the 18th century in the false hope that the sands of time can be stopped by the sheer will of stubbornness and ignorance.

What does it mean to be a strict constructionist? Does it mean that you believe that the constitution was complete as originally written or does it mean it was complete after certain amendments? I have never been sure what exactly these people believe. As a member of one of the groups who were originally left out of the constitution I find it difficult to accept the completeness of the original document. We are not the society we were in the 1700’s and we will never be again. Our society and our country are evolving and if we believe that our constitution will not have to evolve then we are laying the foundation for our demise into irrelevancy. I find it interesting that those who label themselves strict constructionists are usually those who were included in the original document and therefore believe that there is no reason to make it more inclusive.

"With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved." – Oliver Wendell Holmes

I believe that the constitution has been incorrectly interpreted in decisions like Dred Scott, the Santa Clara County decision, and even today with the recent decision to allow corporations unlimited campaign funding. These decisions have one thing in common and that is they were decided using strict constructionist views. The courts rather than applying the standards of the period they were in chose to retain the standards of the original framers complete with their prejudices and ignorance. As the President continues to fill vacancies on the court, as groups like the tea party continue to call for strict constructionist reading of the constitution, as states continue to enact draconian legislation, and as the threat of terrorism continues to loom over us it is important that as nation we define what we stand for. Do we stand for a society that is inclusive and believes in the value of all people or will we continue to claim this right only for those who look like we do?

The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy - Charles de Montesquieu

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With A Friend Like Him

As if things in America were not hard enough for blacks, what with Barack Obama having to explain and denounce his relationship with his “angry” black pastor to ease the fears of his white supporters. It is amazing to me how we allow and accept comments from whites without so much as a whimper, but let a black man say them and all hell breaks loose. It is this double standard and hypocrisy that created the “invisible” Supreme Court Justice Clarence Thomas. I call him invisible because unfortunately for him he is too black to be white and too white to be black. He is lost in a false reality that I wouldn’t wish on my worst enemy. He is a black man that hates black people, what a terrible place that must be.

Justice Thurgood Marshall was the first black man appointed to serve on the Supreme Court. Justice Marshall had a distinguished career as a civil rights attorney many times arguing before the Court he would someday join. He brought an appreciation and an understanding of the plight of the black man in the American criminal and social justice systems. He understood that the laws of this land had been skewed in favor of white men and against women and minorities. This was the Justice that Clarence Thomas was nominated to replace. Many wanted and expected the nominee to replace Justice Marshall to bring a similar sensitivity to the Court.

Justice Thomas was not that person. I can accept that he wants to believe that he lives in a color blind society and that racial prejudice is ancient history. I can accept that he wants to interpret the laws written by imperfect and bias people as if they weren’t. I can even accept the fact that he doesn’t believe that after centuries of prejudice and bias that blacks do not need help in leveling the playing field. I can never understand it, but I can accept it. What I cannot accept is when a black man who doesn’t want to help other blacks does want to intentionally harm other blacks. I can not accept it from the dope dealers that prowl our neighborhoods selling poison to the their brothers and sisters. I can not accept it from the gang bangers who have replaced the Klan as the biggest threat to other black men. I can not accept it from a member of our highest Court concealing it as equal protection under the law.

WASHINGTON — The Supreme Court on Wednesday overturned the conviction and death sentence of a Louisiana man who killed his estranged wife in a jealous rage, finding that the trial judge “committed clear error” in excluding black jurors.

By 7 to 2, the court ruled in favor of Allen Snyder, whose case came before the justices for the second time last December, two years after they had sent it back to the Louisiana Supreme Court and told that tribunal to consider whether the jury selection had been tainted by racial bias.[1]

In the case that the Court overturned the prosecutor had dismissed all the potential black jurors from the jury pool for ridiculous reasons, reasons that were not used to excuse the white jurors. There were two Justices that voted against the majority opinion. Mind you, this is a case involving a black man being tried by an all-white jury and the sole black Justice on the Court did not see a problem with this scenario. Once again Justice Thomas displays why he is despised by many of his fellow black Americans. You are telling me that 7 whites including the Chief Justice who is by no means friendly to black causes finds fault with this case, but Justice Thomas can’t see a problem.

Ok Justice Thomas, you have proven that you don’t want to help your fellow black citizens or represent their causes, but why would you want to harm those same people and causes? As much as I despise the dope dealers and gang bangers, I despise Clarence Thomas more because due to his position on the Court he has the capabilities to do more harm to blacks than either of those two combined. He makes decisions that can affect all black people by a single vote. This is too much power to give any man that suffers from the degree of self-hate that he suffers from. Doctors have to take an oath that they will do no harm, I wish Justice Thomas had taken such an oath.

Why do we appoint women and blacks to the Supreme Court? Many will argue it is because they represent the best jurisprudence irrespective of race or gender. In a perfect world this would probably be true, however as many have tried to point out we do not live in that perfect world. We live in a country that for centuries believed that women and blacks were inherently inferior. We designed laws, public and social policies to enforce those beliefs. As a nation it took us 200 years to place the first black and woman on the Supreme Court. Why do we have diversity in our criminal justice system if justice is blind? Because our history and current experience has shown us that justice is not blind, that because of our racial and gender biases justice has been meted out unfairly. How many murderers of blacks were freed by all white juries? How many murderers of women were freed by all male juries?

We have diversity in our criminal justice system to ensure that everyone gets equal treatment under the law. We believe that by having blacks and women serving as jurors, lawyers, prosecutors, and judges that we open the system up to prevent past injustices from continuing. We also believe that they will bring their unique experiences to these positions to help temper justice with mercy. The whole purpose of being judged by ones peers is to bring this understanding of being in the other person’s shoes into the system. So we now know that it is inherently unfair to have a jury of all whites, or all men, or all blacks to judge anyone. Our court system is based on the belief of fairness and impartiality. Justice Thomas should be a better student of history than he is a student of ideology maybe then he would be more sympathetic to the plight of his brothers and sisters. With a friend like him on the Court, we certainly don’t need any enemies.

[1] http://www.nytimes.com/2008/03/20/washington/19cnd-scotus.html?hp

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