Off the Bench | Looking toward a more perfect union on Law Day - News-Gazette

When we arrive at the first day of May, several things come to mind. The first two are memories and the third is ongoing.

As a child, I would pick some flowers, put together a little bouquet and make a surprise May Day delivery to a neighbor. Later, I recall the May Day display of military might in Moscow’s Red Square. May 1 is now Law Day in the United States. It is quite a contrast with the Soviet/ Russian tradition. We focus on the rule of law.

Each year, a theme is chosen. For 2022, the theme is “Toward a More Perfect Union: The Constitution in Times of Change.” As I reflected on this theme, several subparts jumped out at me.

We can start with the undeniable fact that we are in a time of change. I suggest that we have been in changing times since our Constitution was ratified in 1788. Think of the social changes we have experienced. The scientific, mechanical, medical and technological changes have equaled, if not exceeded, the social and societal developments. We shall come to change later.

The reference to “a more perfect union” comes directly from the Preamble to our Constitution. The first words are “We the people of the United States, in order to form a more perfect union.” The Founders contemplated such a union. By including the word “toward,” the theme reflects that same belief and recognizes that we must adapt and continue to pursue it.

The heart of the theme is the U.S. Constitution. The document outlines the structure of the government. It has articles for the executive, legislative and judicial branches. It specifies the general powers of each branch. It also limits those powers. It sets forth the rights of citizens and provides its own mechanism for change.

I suspect those who drafted the document were pretty pleased with their product. Who can blame them? After all, the country did not come with instructions. They had to create this important document and all that it established. Certainly, that could not have been an easy task, but it was accomplished.

Pride aside, there was a recognition that it was not perfect. There was also foresight to realize that as time went by things would come up that had not been addressed in the original. Consequently, Article V was included to provide procedures for amendment. Under that article, proposals for amendment can originate in Congress as well as the states through their legislatures, and must be ratified in the manner the article sets forth.

The Constitution has been amended 27 times. The most recent was added in May 1992.

Some have suggested that informal methods of amendment exist. Specifically, federal statutes and court cases are referenced in this regard. Perhaps it is a matter of language, but not everyone agrees. Neither change the words of the Constitution. However, both play a vital role in helping carry out its intended purpose as well as assisting its application to changes that have occurred since its ratification.

As an example, we can look at the federal the statute found in Chapter 28, Section 1983 of the United States Code. This law neither creates, removes nor alters any rights found in the Constitution. Rather, it is the vehicle by which people can bring suit when they believe their rights under the Constitution have been deprived by a person acting on behalf of the government. In my view, the statute does not amend the constitution. Rather, it puts teeth in it.

It is mind-boggling to think of issues that exist today that were not even imagined in 1788. The drafters could not have included specific provisions dealing with such matters. Yet changes in our world have raised questions that must be answered. The courts, and ultimately, the Supreme Court, must from time to time answer those questions. Those decisions do not alter the words of the Constitution ,but they do apply them to situations not specifically covered in it. Critics argue that the Supreme Court sometimes goes too far. We can leave that discussion to another day and just look at one example.

The Fourth Amendment deals with searches and seizures. It mentions “persons, houses, papers, and effects.” There is no mention of automobiles, cellphones or computers. The Supreme Court has been called upon to apply the Constitution to situations involving with searches of all three.

Times change. Our Constitution remains the foundation for our government and its relationship with citizens. It can be amended formally and applied with the help of statutes and court cases.

Happy Law Day, everyone.

source: https://www.news-gazette.com/opinion/guest-commentary/off-the-bench-looking-toward-a-more-perfect-union-on-law-day/article_bfdaeabc-6ec5-532d-9d43-3bcb20fee2d5.html

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