Whose Constitution?

I like the Constitution, our constitution that is, the Constitution of the United States of America. It’s a miracle of economy, ten pages all together, and not huge pages like some blanket newspaper, smallish pages without many words.

The Rules of Baseball, by contrast, take up about thirty-eight pages. Baseball is surprisingly complex, once the pitcher lets fly you never know what’ll happen. The Rules of Baseball are an erudite and comprehensive prescription for the result of any given set of circumstances. Just reading the rules controlling the “balk” situation can make you dizzy. It makes sense, though, allowing the balk would be mischief; it would detract from the game. The Rules of Baseball are composed from a deep understanding of the game with the goal of avoiding mischief.

Take the infield fly rule. In baseball, the pitcher serves the ball to the opposing team and each player in turn attempts to hit the ball into play, thereby putting players on base and moving them forward to score runs upon safely reaching home plate. The ball in play, when it touches the ground, releases the base runners to begin their advances to the next base; if the ball is lifted into the air the runners must remain at their base until the ball either is caught or until it touches the ground. The authors of the rules had played the game, and they knew full well that a ball lifted into the air and returning to earth in the midst of the runners would allow the mischief of the team in the field “dropping” the fly ball, retrieving it quickly and throwing out any unlucky runner who had been trapped at his base waiting for the ball to fall. When a ball is so lifted, an umpire simply points his index finger skyward invoking the infield fly rule. That hitter is out whether the ball is caught or not, and the base runners are safe on their bases. The Rules of Baseball are so long because they contain specific instructions for any situation that possibly may come up.

The Constitution, on the other hand, contains no specific instructions. It is a set of guidelines to be applied to any present or future law of the United States. This application requires that the words in the Constitution be interpreted. “Cruel and unusual punishment” is not allowed; what does that mean? Someone charged with a crime has “the right to be represented by counsel;” at what stage of the proceedings may that right be invoked? Who decides what these words really mean?

The answer is: The Supreme Court. Those nine justices, appointed for life by the president, and whose appointments have been ratified by congress, are solely charged with deciding what the words mean in practice. They may change their minds over time in response to constitutional challenges. The right to counsel, for instance, was first interpreted to mean the right to have a lawyer at trial; later it afforded the right to have a lawyer with some time to prepare for trial; now it means the right to have a lawyer present upon arrest if the police wish to ask the individual any questions about the crime. The words in the Constitution were not changed; just the Supreme Court’s interpretation of their meaning.

So really, those nine justices, it’s their Constitution. They, their prejudices, their temperaments, their predilections, are very important to all of us in ways that are very real and immediate. If your child were arrested for a crime, perhaps a very serious crime, and taken to the station for interrogation, it would be comforting to you to know that he could insist on having a lawyer present for that interrogation, a comfort to know that she could not simply be taken to a room, handled roughly, deprived of sleep and food, and subject to a lengthy, coercive interrogation by a team of professionals. You have the Supreme Court to thank for that.

Or not. Those nine justices of the Supreme Court could just as easily decide that they had been precipitous in allowing representation so early in a police investigation, that it was unfair to the people of America to so impede the police in their good efforts to keep us safe from criminals. So the composition of the Court, and the quality of those who are nominated for advancement to the Court, is of critical importance to all of us, we Americans.

My constant readers are only too aware of my own prejudices in these matters. Better, then, to go and speak with someone that you trust. Most people have a lawyer in their families, lawyers are more ubiquitous than rats these days. Go and talk to a lawyer that you trust and ask him about our current Supreme Court and about the likelihood of new appointments in the next four years. Ask about the lawyer’s concerns, and question the lawyer about your own concerns.

You should be very, very concerned, because, by the law of unintended consequences, a wrong vote for president this year could have a disastrous effect on your core happiness.