On the Constitution in the hands of oppressors

As consequences for the administration’s blatant contempt for the Constitution now trickle forth, it is apt to write of the relation between the staid, inviolable, immortal Constitution and the lively, unchainable spirit of liberty. What gives the Constitution the right to run roughshod over the will of a people who never wrote it?

The traditional answer is that the principles of the Constitution (or, more precisely, of the Bill of Rights) are too vital, too basic to that same spirit of liberty to be changed easily. They must be treated as the rules of the game, else political expediency could put at risk all that makes government tolerable in the first place.

And that is quite true, as far as it goes. But in its realization lies a weakness. Unfortunately, only a fine line divides holding something as fundamental and worshipping it outright. Since early in America's history, some have put the Constitution on a pedestal as a symbol of the nation, cherishing it so much as to lose sight of what it is meant to protect -- our freedom.

Take state governments. There was a time there was some diversity in form between them. But now almost every one is a slavish copy of the federal structure. Except for plucky Nebraska, it's State House and State Senate all down the line, sometimes differently named. Why not experiment? Because the Constitution must be right in all things.

This worship has been exploited, making our document of liberation a tool of subjugation.

In the Dred Scott decision, the Supreme Court said that because the Constitution protected property, it was impossible for a slave to walk onto free soil and become free.

In the longer-lasting Lochner v. New York notion, the states could not make laws on wages or hours because it violated "freedom of contract." Since a worker is rarely in a position to negotiate a contract, this boiled down to granting employers the "freedom" to treat them as poorly as they desired.

Today, we have the preciously clever notion that giving a politician a million dollars is just as much "free speech" as speaking on a street corner.

And the doctrines of "original intent" and "strict constructionism" have been fabricated to make the Constitution nothing more than an unchallengeable lawgiver from the past, and not an expression of our collective desire for freedom and equity. That is what happened to the Violence Against Women Act, for example.

It may feel wrong that the judicial system essentially invented some rights we value, like the right to privacy, but it's not a question of "judicial activism" on either side. Sometimes judges add new rights to protect the people against the powerful, and sometimes they add new rights to protect the powerful against the people.

We should remember the Ninth Amendment -- just because it's not in the Bill of Rights doesn't mean it's not a right inherent to the people. It would be tidier if the new rights were put in new amendments, but it's not worth anger.

What should enrage us is when they say we may not combat our oppressors for fear of treading on their so-called "rights." These people want to take the Constitution's iron power, stripped of its principles, and forge it into a vise.