Vail Daily column: What the Constitution says
Editor’s note: This is the first of a multi-part series.
Let me take you on a journey. I know how far the journey will be — there are, after all 27 amendments to the U.S. Constitution — but just how long this takes us, we will discover together. Should something of particular legal import pop up along the way — God forbid another Ferguson or the like — we may take a detour to two before throwing up our arms across the finish line. I will do my best to make this entertaining and to try to give you a feel for how each of the amendments arose and became part of the fabric of the Constitution.
As but one example of what we will explore is how the 19th amendment — granting suffrage to women — was enacted into law after a long struggle towards equality among the sexes and how that fight was advanced by women’s sacrifice and contributions during the War to End All Wars.
My intent, though, is to help you understand how the Constitution was conceived; how it has been shaped; how it has been molded and amended; the process by which it has been, and is, interpreted; and — pre-eminently — precisely what it says. That process, of course, involves the courts.
My hope is to lay out how certain language in the Constitution has been stretched, twisted, tortured and interpreted, hopefully avoiding taking sides. As but one example, I will share with you the straightforward language of the Second Amendment and leave it to you to determine whether it intends to confer the right of private gun ownership upon citizens, or not, and how broad that right — to the extent you may agree it exists — extends.
LAW IS A FLUID THING
This is not to say that I won’t share a court case here and there with you to help you understand where we have landed — at least for the moment — on issues such as this. One thing you will discover is that the law in general — and the Constitution in particular — has proved a fluid thing. Take for example the Constitutional cases of Plessy v. Ferguson and Dred Scott v. Sanford, both of which held in their own way that the races were unequal, a proposition few would argue now. And both of which ultimately led to reform and reconsideration that bent the arc of the Constitution towards a brighter, more inclusive light.
I will do my utmost to keep my own contemplations and interpretations out of it.
I will also do my best to help you understand the primordial stuff from which the Constitution arose — revolution and the Federalist Papers — the brilliant minds that conceived it and contributed to it — perhaps preeminent among them a brilliant young Virginian who would go on to become our fourth president, whose name was James Madison, Jr.
AMENDING AN ARDUOUS PROCESS
It is interesting to note as we take the first step on this journey that there are been more than 11,500 attempts to amend the Constitution and only 27 have succeeded, a mere two-thousands of 1 percent. Chew on that a moment. Obviously, we will need to discuss how — unlike amending our own state Constitution which has nearly triple that number of amendments in less than half the time, amending the United States Constitution is, and is meant to be, an arduous process.
We will examine some of the detritus along the way, those amendments, both absurd and wise, that failed. We will spend some extra time on the curious convulsions and convolutions of the prohibition and repeal — the 18th and 21st Amendments.
We may just take a peek at what might be next; what further amendments — for surely there will be more — may be lurking on a near or distant shore.
So let’s begin; it all started on a humid summer in the city of Philadelphia. The year was 1776. An egg was being hatched.
It was, in fact, an eaglet being born.
But before that, there was revolution. So let’s first look back before we look forward. For to understand the Constitution, one must first understand the revolution, the fever, the sacrifice and the struggling colonies’ unlikely conquest over the greatest power then on earth. To understand the Constitution one must first understand the band of brother who with a ragtag army of irregulars overthrew an empire.
It started out like this:
The colonies that were established along the east coast of the new continent were governed by charters granted by the king, each permitting substantial self-governance. Crown colonies (Massachusetts, New Hampshire, New York, New Jersey, Virginia, North Carolina, South Carolina and Georgia) imitated the “mixed monarchy” constitutional structure of Great Britain. Each had an elected assembly, which constituted the lower house of the legislature, a council appointed (except in Massachusetts) by the crown constituting the upper house, and an appointed governor with executive powers representing the king. All laws had to be submitted to the home government for approval, but otherwise there was little interference.
Proprietary colonies (Pennsylvania, Delaware and Maryland) also had elected legislatures, but the proprietors, not the crown, appointed the governors.
Charter colonies (Connecticut and Rhode Island) elected both legislatures and governors and did not have to submit their laws for approval.
It is worth noting, according to the system of the time, that throughout the British Empire, all land belonged to the king and it was his prerogative to divide them as he chose. Charters were awarded to friends and allies, which encouraged and facilitated private investment. New York is called New York because King Charles II gave “New Netherlands” to his brother, the Duke of York, who promptly and grandiosely named it after himself. Pennsylvania is named for William Penn, a friend and ally of the king.
The colonies were appendages of the kingdom and, at first at least, all was well and good upon what would soon become a restless shore.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.