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Tuesday, 19 September 2006 15:43 |
| Brian Butler
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By Jeremy Morrison
HENDERSONVILLE ÇƒÓ After opening the 2006-7 Great Quotes Lecture Series on Sept. 5 with a lecture on the flexibility of the U.S. Constitution, UNC Asheville Philosophy Chairman Brian Butler answered questions on the nature of constitutional law.
About 30 people attended the talk at UNCAës Kellogg Center in Hendersonville, which took as its foundation the writings of statesman and scholar Edward Levi.
"Do
you think constructionism is actually a coherent, guiding, legal
philosophy, or is it a code for a particular slant?" the first speaker
asked.
"Levi would consider that just another covert way of covering up with your own interpretation," Butler answered.
The next
questioner asked if, instead of simply being changed, the Constitution
was not in fact being "refined more and more." The Constitutionës
development, he argued, could be seen as a forward progression.
"I think thatës
a much more sane way of describing whatës happening," Butler replied,
adding that Levi would not necessarily agree, believing something
changed today could be changed back tomorrow.
Another person
asked if the Founding Fathers had been "black-and-white specific" in
their intent ÇƒÓ if the constitution could be seen more as a fixed
document.
"I heard someone whisper ǃÚno,ë" Butler answered. "And I would say no."
Levi, he added,
thought it was sometimes better to use vague language, thus enabling
interpretations to vary according to the current political and social
climate of the country.
"We want a kind of certainty and we look to the Constitution for it," Butler noted. "Thatës really kind of an infantile hope."
The next questioner wanted to know what role the nature of language plays in the rigidity of the interpretation.
"Language games
can be manipulated," Butler replied. "I think thatës a great question
and instead of answering it Iëll just say, ǃÚYeah ÇƒÓ huge, important
question.ë"
A woman then
addressed the role of the Bible as a foundation for Constitutional law.
She said that having a "rock to refer to allowed people to proceed."
Butler replied that, as opposed to acting as a tether, the Constitution serves as a safety valve facilitating change.
"Maybe it is a great thing that the Constitution allows for that kind of freedom," he added.
The next two questioners asked Butler about the most recent Supreme Court additions and their nomination processes.
"It seemed like awful important and good questions should have been asked and werenët," Butler said of the nomination process.
He also commented specifically on Harriet Myersë nomination, describing it as a distraction.
After nominating
Myers ÇƒÓ whose credentials were questionable ÇƒÓ President Bush was able
to successfully nominate John Roberts, who held a more conservative
judicial view, but whose qualifications were impeccable, Butler said.
"Incredibly tricky, incredibly manipulative ÇƒÓ and it worked like a charm," he added.
After the
question-and-answer session, attendees were given the opportunity to
share their own views on the subject of the Constitution.
"It has to be
changeable or weëre doomed," one man said. "Because things have changed
ÇƒÓ if you canët change the Constitution to accommodate this, the country
goes down the tube."
Another man said that the mere existence of the U.S. Constitution offers some amount of stability.
"It seems that
the Constitution is the absence of the chaos that we might have without
it," he said. "Whether itës right or wrong is kind of abstract. Without
a Constitution weëre asking for ... anarchy."
The man also mentioned the transparently flexible constitution of Britain, which he noted is not written out.
"I look at Socrates," the speaker added, "who still affects this world and didnët leave a word in writing."
A woman then invoked the image of a grocery store checkout line.
She compared the
sometimes-rigid enforcement of the 10-item-or-less rule to the
interpretation of laws, saying that some cashiers adapt strict
interpretations and put their foot down on the eleventh item.
"It depends on whoës doing the enforcing," she said. "Iëm really scared about who has that authority."
Another man
noted that legalities are not merely abstract issues engraved on marble
tablets in Washington, but forces that affect people on all levels of
government. He also spoke about local legal questions regarding a
Hendersonville ordinance issue.
"We all live in
a sea of constitutionality," he said. "It happens all the time. I donët
like to think of the Constitution as something far away in Washington."
The next speaker claimed that President Bush has usurped the power of courts and Congress, calling this a "bid for kingship."
"That is a clash of constitutional powers," he added.
A man who
identified himself as a radiologist then compared the desire to
establish absolute Constitutional interpretations to the desires of his
patients as they sit in the waiting room wanting a concrete diagnosis.
"The truth is,
interpretation is an art form," he said, adding that everyoneës
interpretation of a given subject could be different. "Weëre relegated
to being blind people in a dark room searching for a black cat that
isnët there."
The next man recited the preamble to the Constitution.
"From my point of view," he said, "thatës what we should be starting off Congress with, not a prayer from whomever."
A woman then
suggested that some changes to the Constitution should be seen as
dangerous to civil liberties. She cited the USA PATRIOT Act as a
particular threat.
"Everyone says,
ǃÚWeëll set this aside, because we need to do something different,ë" she
said. "Thatës not any guarantee of freedom."
Another woman recalled asking her priest to clarify the churchës laws, so that she would know how to follow them.
"When Iëm with a
boy, I want to know exactly when it was a sin," she recounted asking
during confessional. "I wanted to obey the laws of the society I was
living in."
After the public comment period, Butler again addressed the group about his views on the Constitution and the Supreme Court.
"I believe the
rule of law has a very important place in society," Butler said. "I
just think the Supreme Court is a whole other beast and the rules
change up there. The Supreme Court is a weird thing."
He also questioned constitutional review, as well as the attorneys who conduct the reviews.
"One of the
things Iëd almost advocate is to get rid of constitutional review,"
Butler said. "Is a brilliant attorney a brilliant expositor of how the
Constitution should be interpreted? Itës a question ÇƒÓ I donët know the
answer."
He then
discussed Levi, who, he said, thought a flexible Constitution was
positive in that "it puts the impetus back on the people and the
democracy."
However, Butler
added that he did not necessarily agree with that synopsis, saying that
the court system ÇƒÓ more than citizens ÇƒÓ controls the flux of the
Constitution.
He elaborated on
his idea of a "sea of constitutionality" ÇƒÓ an atmosphere of legal
precedents and established interpretations that rule many aspects of
citizensë daily lives, but of which most people are unaware.
"Maybe that creates an atmosphere where weëve given up on debate," Butler added.
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