The Megaphone (Georgetown, Tex.), Vol. 80, No. 22, Ed. 1 Friday, March 21, 1986 Page: 3 of 8
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Constitutional
Bicentennial
in the Future
The following is part two in a series of articles in preparation for the C
stitution’s Bicentennial next year. Dr. O’brien in this article touches
some of the material he gives in his fall course, P S 533, entitled C
stitutional Law I.
It’s a Grand Old Constitution
But What Does it Mean?
The Constitution of 1787, in-
cluding the 1791 Bill of Rights, is a je-
june document of only 4,500 words.
Short, indeed, but it deserves the
kudos of William Gladstone, the il-
lustrious British statesman who oner
called it “the most wonderful worl
ever struck off at a given time by th
brain and purpose of man.”
Next year we celebrate the 200th
birthday of this product of its
lalented craftsmen, but Ittcga
find onrselvps in thp
jady we
furious debate over its meaning. Last
year, in a series of provocative
speeches, Attorney General Edwin
Meese criticized the Supreme Court
for departing from the “original in-
tent” of the Founding Fathers and
deliberately substituting for this in-
tent their own prepossessions or per-
sonal preferences. Meese urged
judges to amend their ways.
of Rights, which includes the Eighth
Amendment, also wrote that “no
person shall be deprived of life, liber-
ty, or property without due process
of law.” In other words, a criminal’s
life could be taken away if the
Government followed the prescrip-
tions set forth in the statute books.
The Fifth Amendment specifically
mentions “capital...crime” (a death-
penalty crime) as constitutional, pro-
vided the accused is indicted by a
Grand Jury*-
Seven sitting judges are now con-
vinced that the death penalty is con-
stitutional; but Justices William
Brennan and Thurgood Marshall ig-
nore two centuries of constitutional
history; in every case they dissent and
vote to nullify the law now in over 35
states. Their vigorous protests would
prevail if they can convince just three
more of the Brethern.
THE DEATH PENALTY
The Eighth Amendment forbids
I the National Government from im-
posing “cruel and unusual forms of
Ipunishment.” Several years ago, the
ISupreme Court simply decreed that
Ithis injunction should also bind the
kState governments.
But is the death penalty “cruel and
lunusual”? Not in 1787 nor 1791 was
it so considered. Drafters of the Bill
THE EXCLUSIONARY RULE
The Fourth Amendment
guarantees that a man’s home is his
castle and protects it against
“unreasonable searches and
seizures.’’ But what’s
“unreasonable”? The courts let us
know on a case by case basis. But
when a court rules that a particlar
search is “unreasonable,” must all
5
physical evidence gathered thereby be
excluded from the trial? The “houn-
ding Fathers” didn’t think so, nor
did the Supreme Court till 1914, 125
years later.
NO PRAYERS
“Bizarre” is the word Meese uses
to characterize the Court’s decisions
outlawing school prayer; or even a
moment of silence during which
students might quietly curse, lay
plans for a riot, or, perhaps, even
pray\ The Founding Fathers had no
idea that their words would ever be
interpreted to prohibit “prayer” in
schools. Meese denounces such Court
decisions as resting on “chameleon
jurisprudence,” that is, a fickle legal
philosophy which allows judges to
substitute their preferences for what
the Constitutional Craftsmen really
intended.
MEESE MEETS OPPOSITION
Meese soon found that the enemies
of his theory of jurisprudence are
legion in number. Almost immediate-
ly Justices Brennan and John Stevens
doffed their black robes and entered
the ring to engage him in battle. Hun-
dreds of experts in Constitutional
Law have seized their pens to attack
him from other salients. Many op-
ponents bluntly quote Chief Justice
Charles Evans Hughes that “we live
under a Consitution, uut the Consitu-
tion is what the Justices say it is.”
Others cite Woodrow Wilson who
remarked that “the Supreme Court is
a continuous Constitutional Conven-
tion, keeping that ancient document
up to date.”
MEESE MEN
But Meese’s monitions have rallied
a massive number of supporters.
They retort that the Founders provid-
ed the amendment provision whereby
consitutional changes can be orderly
made whenever a heavy majority of
the people so desire. That, say Meese
men, eliminates the need of having
nine non-elected, life-tenured
Platonic Guardians to save us from
ourselves.
But no consitutional scholar denies
that the Supreme Court is, in many
instances, the proper tribunal for in-
terpreting certain words and provi-
sions in the Consitution which are
not sufficiently clear. Congress is
given the power to “collect taxes”
and to “regulate commerce with
foreign nations and amongst the
several states.” Do these provisions
empower Congress to drive out of
business certain undesirable enter-
prises? In the face of strong opposi-
tion at times, the Court has said
“yes” this judgment has been con-
firmed by the history of supporting
practice; no scholar today would
deny Congress the consitutional
authority to keep many objects
manufactured in Japan out of the
country by high taxes that is, a high
tariff; nor “to regulate” the flow of
drugs from state to state by a severe
Federal Narcotics Act.
But Meese seems completely
justified in his battle against the
Court’s “bizarre’ misinterpretations
of such things as the “religion” and
the “search and seizure” provisions
of the Bill of Rights. So the lively
debate about “original intent” of the
Founding Fathers seems destined to
provide a most proper prelude to next
year’s bicentennial celebration of the
consitution.
Feature
The Republican
Rambo
by Federico L. Brown
President Reagan argues that the
U.S. must show its machisimo in
Central America to scare the Rus-
sians. This mentality of Rambo is
doomed ior taiiure because it ignores
the internal realities of Central
America. The Sandinista regime
came to power in 1978 because of the
long-term corruption and repression
of the right-wing Somoza dictator-
ship, a dynasty that the U.S. has
backed since the 1930’s. The contra
forces include politically ambitious,
right wing somocistas. Just as the
Peronist party in Argentina has sur-
vived long after the death of Juan
Peron, so too somocismo survives as
a dangerous political force after
Somoza’s demise.
The contras have been hopelessly
divided by petty political goals. The
CIA had to intervene directly Iasi
year to provide a fig leaf of artificial
unity through UNO, the not so
democratic United Nicaraguan Op-
position. The Vietnam tragedy
taught the futility of backing ineffec-
tive right-wing forces. It is these very
forces that perpetuate suffering and
poverty that fan the flames of
violence in Central America!
The contras also have been
militarily ineffective. Aside from at-
tacking and abusing peasants and
downing an occasional helicopter,
they have made no important head-
way against the government.
Reagan’s bravado in placing U.S.
prestige and interests behind the con-
tras makes the U.S. resented among
many Latin American nations and
also the numerous nations that have
filed petitions in the U.N. As in Viet-
nam, we are backing a loser and will
suffer because of contra actions and
shortcomings. The U.S. will be forc-
ed to bail them out with American
troops, just as we had to shore up
corrupt forces in South Vietnam.
Beyond their political, military and
moral shortcomings, the brutality
and terrorism of the contras should
repel any moral person. Christopher
Dickey spent nearly six years with the
contras and has revealed a true por-
trait of their character and actions.
Dickey, a reporter for the
Washington Post, gives compelling
evidence of the atrocities committed
by the contras. His powerful book,
“With the Contras”, adds convinc-
ing evidence against U.S. support for
such actions.
State sponsored terrorism is all the
more tragic because clear, workable
alternatives exist. 1 he Contadora
group of eight concerned nations has
labored for years to settle the con-
flicts of Central America. Newly
elected civilian presidents in
Guatemala and Honduras support
the Contadora peace process. In-
stead of funding the forces of terror
and reaction, Reagan should be
working with concerned neighbors of
Latin America. The funding of the
contras will continue to result in mass
suffering to the innocent, shame to
America and a greater danger of U.S.
troops dying in a futile Central
American jungle war.
Through the Contadora process,
the U.S. can play a constructive role
in Latin America. U.S. aid to ter-
rorists doesn’t deter the Soviets by
making enemies of potential friends
in Central America.
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The Megaphone (Georgetown, Tex.), Vol. 80, No. 22, Ed. 1 Friday, March 21, 1986, newspaper, March 21, 1986; (https://texashistory.unt.edu/ark:/67531/metapth634545/m1/3/: accessed June 29, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting Southwestern University.