CONSTITUTIONAL CONVERSATIONS

Is the NY Times Right – Are We Just Okay?

                                     By

  1. E. Boyd, Esq., “Miss Constitution”

Miss Constitution is not offended by this question and the simple answer is that it depends upon how you define exceptional.  If the definition is a type of equality of outcome for each person in our society we do not meet that definition and our national Constitution does not embrace this notion.  This is the definition that undergirds socialism and the creation of guarantees by government of things or material possessions to peopleAnother word for these is entitlements.  Human beings can become very dependent upon these things.  The Supreme Court has deemed some of these entitlements “property rights” in our system but these are a bit tenuous as the “right” disappears when the money runs out and the money always runs out.  The only equality that we guarantee in America is equality under the law and birth-right equality.

The 14th Amendment, ratified after the civil war, states that:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall and State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“Equality under the law” is one of the aspirations in our Constitution and is basically about fairness of process.  It is about impartiality not about outcome.  It is a work in progress and has touched all groups in America but some more than others.  If there are federal or state laws with severe punishments that seem to target certain groups, this is an issue of fairness of equality under the law.  If certain famous persons seem to be treated differently relative to the law this is an issue of equality under the law.  “No one is above the law” applies equally to the Secretary of State, to the head of the FBI, to the Director of the CIA, to the President of the United States and to you.  In addition, Bills of Attainder (federal or state legislative acts that apply punishment to an individual without a trial) are specifically barred in Article I, section 9 of the U.S. Constitution.  Bills of Attainder and Ex Post Facto laws both go to the issue of equality under the law.

Birth-right equality is first mentioned in the Declaration of Independence, 1776 –

We hold these truths to be self-evident, that all men are created equal . . .

This means that all people in America are born without aristocratic distinction.  No one is born a prince, or a princess, or a future Queen or anything else.  It does not mean that all people are of equal talent or intelligence or character or drive.  Article I, section 9 and 10 of the U.S. Constitution states:

No Title of Nobility shall be granted by the United States . . . No state shall . . . grant any Title of Nobility.

It is true that the state of Kentucky has honorary “Colonels” but otherwise birth-right aristocracy, found in many European and Asian nations, is not allowed in America.

Miss Constitution thinks the aspiration of equality under the law is an historically worthy concept, and although it is never perfectly achieved, should be considered as one of the things that makes America exceptional.  Another word for this concept is justice (impartiality), and a just society was thought by Plato to be one of the reasons for government in the first place.

In the political blood sport that Americans seems to like we often hear that an idea, or a law, or a proposal is not what America stands for or is not an American value.  What are, then, American values?  These can be found in the Preamble to the U.S. Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do   ordain and establish this Constitution for the United States of America.

The citizens of America want a better union than that between England and Scotland (Act of Union, 1707) and we want justice (equality under the law) and liberty (freedom of personal choice) for ourselves and our children and grandchildren.  America’s aspirations are justice and liberty with personal liberty as our primary national value.

What this means is that America is always going to be messy (“just okay to the NY Times”) as some people use personal liberty as license and cause great harm to themselves, their families, and the society at large.  The great American experiment is whether we can balance personal liberty with a stable social order.  The society relies on forces outside of the Constitution to help.  We rely on strong, moral families to teach children right from wrong.  We rely on our religious institutions to do the same thing.  Economic opportunity, or upward mobility, can be taught through our schools so that every child has a chance to learn how prosperity is achieved and service given back in America.

So, the question the NY Times might ask is whether the aspirational values of America are exceptional. Is equal justice under the law an exceptional value?  Is personal liberty, with a stable social order at risk, an exceptional value?  Is upward mobility, dependent as it is on knowledge and individual talent, an exceptional value?  Some might say that the values are exceptional and the progress towards them okay.  Miss Constitution, relative to the history of the world, sees them both as exceptional.

Copyright©2019 M.E. Boyd, Esq.,“Miss Constitution”

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