Parchment Barriers

Hamilton famously claimed that the Constitution was just a piece of paper. It takes real work to make a political system real. Or, as Montesquieu said, the moving spirit of a political system is what gives it life, not a bunch of words on a document somewhere.

There is one political party today (you know who they are) who have conveniently decided that they can ignore the Constitution whenever they like. This is not a question of debating reasonable interepretations. This is a matter of flatly ignoring important constitutional provisions. So today I'm going to talk about a few crucial clauses that are NOT in the Bill of Rights but are nonetheless vital for political equality and individual liberty.

No Religious Test For Office

This is in Article VI, clause 3: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This provision was developed in response to the anti-Catholic legislation in England. Now as a matter of law, anyone can apply for or run for office. But there is an important distinction between what is true de jure and what is true de facto. If the people are not motivated to follow this idea, then there will be a religious test for office anyway. Can an avowed aethiest be elected to office? How about a Muslim? Furthermore, we have a sitatution in which the President says he won't appoint anyone to office who isn't "right with God." And recently a key political figure has said openly that Muslims shouldn't be elected to anything. So what we see here is a blatant disrespect for the spirit and letter of the law.

The others I want to talk about are all in Article One, Section 9.

Habeus Corpus

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This means you can't throw someone in jail without a trial or accusing them of a trial. There has to be due process. Now there is some debate on whether the President or Congress has the right to suspend this writ. I'd guess that it's supposed to be Congress, since it's in Article I. But people disagree.

What is more important is the last part: the has to be a major threat to U.S. public safety. At present the President is suspending Habeus Corpus whenever he feels like it. Does the present circumstance rise to the level forseen by the Constitution? Clearly this is not a rebellion, and I'm not sure that it's an invasion. But I am very concerned about the cavalier dismissal of human rights demonstrated by this administration.

No Ex Post Facto Laws

"No...ex post facto Law shall be passed." This means you can't pass retroactive laws. You can't convict someone of something that wasn't a crime when they did it. This is one of the things that bugged me about the Terry Schiavo case. The courts had already ruled, and they intervened in an ad hoc way after the decision had been made because they didn't like the outcome. Sorry guys, but if you didn't like that case, you should have passed a law about future cases. We are not allowed to change the rules of the game after the game has started. But I'm not talking about the filibuster.....

No Bills of Attainder

"No Bill of Attainder ....shall be passed." The Bill of Attainder is a law in which the legislature declares someone guilty/an enemy of the state. No due process - just kill the guy. Laws are meant to be general, not specific to a person or event. When legislatures get involved in talking about personalities, individual liberty is under threat. We have gotten into a bad habit of personalizing politics. Saying we want Osamo Bin Laden "dead or alive" is worrisome enough, but passing laws that are concerned with individual persons (like Schiavo again) is antithetical to a democratic state. We are all equal you see, and all deserve a fair procedure. No one is special.

No Patents of Nobility

"No Title of Nobility shall be granted by the United States."

No aristocracy. Period. So why am I mentioning this? Because at the moment if your last name is the same as someone who's been elected to high office, you get to be elected too. We have nascent dynasties forming in this country, whether they be local ones (like the Tafts or Gores) or national ones (like the Kennedys, Clintons, or Bushes). As I've said over and over: democracies do not have the luxury of flirting with dynastic politics. So no, there is no law saying that we have an elective nobility, but our voters seem all to ready to believe that political talent flows in the blood.

It goes further than this. The underlying principle behind this Constitutional provision, as well as the "no religious test for office" one, is that of political equality. Not just equality in voting, but equality in office-seeking. No person should be advantaged (or disadvantaged) in seeking office because of who they are or what they have. Given the de facto wealth test for office in this country, created by weak parties and the repugnant Buckley vs. Valeo decision, at the moment those who are wealthy or famous have a chance to run for high office. If you don't have those qualities, then the bar is very, very high is many parts of the country.

So no, the Constitution has not been revoked or destroyed. But there are many elected officials who ignore or pervert it for the sake of their personal interests. More disturbingly, there are a lot of citizens who don't seem to take portions of it seriously either.