In Their Opinion

To the Editor:

The spark for this letter is Eddie Garcia’s recent middle-finger salute to “pro choice feminists” (Cal-Rec LTE 5/11/22). It is in no way my intention to opine on so-called rights to life, to choice, to keep & bear arms, of corporations to be persons, and to any other rights too numerous to name or even conceive of. Rather, it focuses on opinion.

I, like many Americans, have naively believed, have been schooled to believe, that the US Constitution and Bill of Rights constitute and articulate some kind of fundamental and absolute truths, despite much evidence to the contrary over their two-and-one-half century existence. I’m a little slow on the uptake, so the epiphany about their real nature didn’t come to me until somewhere in the midst of the aborted Merrick Garland nomination to the US Supreme Court (SCOTUS). I began to realize that the Constitution, its interpretation and application are essentially the exercise of political power mediated by timing and some political Party’s good fortune. This power is exercised by whomever is in the seat of power at key points in time. Remember the Golden Rule: He who has the gold, rules (gold in this context being political power in the form of the US Presidency and a filibuster-proof majority in the Senate)! Successful appointments to SCOTUS are the manifestation of political power, which is well known to shift over time, like desert sands. The composition of SCOTUS and its majority, read, its leanings regarding the Constitution, the Bill of Rights and Amendments, is purely an accident of fate.

The cynical side in me fears that rulings by SCOTUS are no more than what they are otherwise called: Opinions = the erudite and articulate expression of personally held academic, moral, religious and political convictions of individuals in the majority who happened to find their way onto the Bench at particular points in our country’s history.

For the theocrats out there who want to believe the Constitution was handed down on tablets from some Judeo-Christian god, please give it up. Understand that the Constitution and its supplemental documents are the product of mortal endeavor, rough&tumble politics and strategic compromise among the Founders, who collectively embraced widely divergent perspectives and beliefs. These hallmarks of democracy were born in the human political arena, and may well die there. Any search for absolute truths in the Constitution et al., including rights, is likely a fool’s errand.

Just think: If 5 SCOTUS Justices today can tell us that a majority of justices on the court a half century ago was egregiously wrong in its interpretation of the constitution, couldn’t a majority on the court 10, 20 or 50 years from now be poised to rule that today’s majority was out to lunch in its thinking? So, whose wisdom and judgment are we to trust and accept: today’s, yesterday’s or tomorrow’s SCOTUS majority?

I would counsel Mr. Garcia to not get too attached to his arsenal if it has no connection to a well regulated militia. Just as 5 Justices of a politically constituted Court today may blow off stare decisis (SCOTUS legalize for “to stand by things decided” = stick with precedent) regarding Roe v. Wade and a woman’s right to choose, so may some future group of 5 Supremes opine that avid duck hunter Antonin Scalia in his majority opinion interpreting the 2nd Amendment was egregiously wrong, didn’t establish settled law, and simply succeeded in entrenching his personal convictions by good timing and his skill at persuading 4 other like-minded politically appointed Justices to go along.

I would love to see this topic explored, and maybe my cynicism tempered, here in these pages by area legal scholars and lawyers who are occasionally given Guest Opinion space (e.g., Mr. Benning, Mr. Sleigh, Ms Bucknam).

Respectfully,

Lenny Gerardi

St. Johnsbury, Vt.

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(1) comment

LAWRENCE BLACK

Hey, Lenny. You ARE aware, are you not, that SCOTUS has overturned previous rulings some 200 times during it's existence?

If that were not the case, we'd still have the Fugitive Slave Act, Drew Scott and "Separate but Equal" in public education, to name just two.

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