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412 pages, Paperback
Published January 1, 2009
For good or for ill, the meaning of the Constitution has often been very much in the hands of the nine justices of the U.S. Supreme Court. This book goes in depth into the different approaches adopted by different justices over the years. Dr. Arnheim explains his own interpretations in simple, direct language, and he also explains why he favors the approach that he adopts — while at the same time setting out the opposing views.
For example, Justices William Brennan and Thurgood Marshall both believed that the death penalty always constituted “cruel and unusual punishment.” Dr. Arnheim explains why he believes they were wrong — based on the text of the Constitution itself. But Dr. Arnheim goes further, arguing that Justices Brennan and Marshall were really confusing what the Constitution actually says with what they as judges thought it ought to have said. There are serious policy arguments both for and against capital punishment — but given that the constitutional text twice explicitly authorizes capital punishment, the only proper way to change that would be a constitutional amendment as laid down in Article V of the Constitution. And an amendment is unlikely to be passed, because large majorities of the American people have consistently supported capital punishment for the very worst criminals. Accordingly, a judge imposing his or her views on the issue is not only unconstitutional, it is also undemocratic.
Likewise, in 2008, the Supreme Court decided District of Columbia v. Heller, holding for the fi rst time that the Second Amendment protects an individual right to keep and bear arms (discussed in depth in Chapter 15). Texas led 31 states in defense of the Second Amendment in that case, and our arguments for giving force to the plain text of the Constitution and the original understanding of the Framers prevailed by a vote of 5 to 4.
The Constitution is designed to limit government and to protect all the freedoms that you and I cherish as Americans.
So, how does an indirect democracy stand up to Lincoln's three-part test?
* Government of the people: This is the easy one. Any government is automatically a government of the people. It doesn't have to be a democratic form of government. A monarchy, a dictatorship, an oligarchy - all are governments of the people, but they aren't governments by the people.
* Government by the people: This is the elusive one. Government by the people has never existed in the United States - and could never exist. So what was Abe Lincoln thinking of? Or did he just figure that it had a nice ring to it as part of a threesome?
* Government for the people: Every government of every kind everywhere in the world always maintains that it governs in the interest of its people - or for the people. This is not a specifically democratic feature at all.
In fairness to Abe, he probably figured that the sort of indirect, representative democracy that we have in the United States was actually government by the people - a pretty dangerous assumption to make by a guy who got into the White House with just 39.8 percent of the popular vote.