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We The People

by Geraldo Rivera | Sep 23, 2011


My friend and lawyer Leo Kayser III invariably carries a small, frayed copy of the U.S. Constitution around in his inside jacket pocket. At the slightest provocation, he whips out his little black book and brandishes it overhead as if he was William Jennings Bryant, who Leo sort of resembles; (short, prominent belly, bald, bad ideas well-argued). Then, peering over the top of his glasses, Leo quotes thunderously from the well-worn booklet containing the government's founding document, the fingers of his free hand often stabbing the air in cadence with his recital of the sacred text.


Also a lawyer, but bereft of my own carry around copy of the Great Compact, I still argue with equal vigor; often agreeing on individual rights, (we're both libertarians), but disagreeing dramatically on the proper role of the federal government and the separation of powers between Washington and the several states. We have debated the relevant clauses and amendments for 42 years, almost never agreeing. And therein lays the rub. Although the hand-written original document is only four pages long, what it says or doesn't say often depends on the eye of the beholder.


Every since the court in Marbury vs. Madison (1803) ruled that the seminal document was open to judicial review, i.e., that the Supreme Court of the United States is the ultimate arbiter of what is or is not ‘constitutional,' advocates have disagreed over what the founders intended, sometimes with disastrous results.

Dred Scott was the High Court's low point. The infamous 1857 decision came on the eve of the Civil War, and helped start it. The court ruled that slaves brought into the United States were not protected by the Constitution and could not be considered citizens. Not only were they denied citizenship, their essential humanity was also denied; the Court ruling slaves were not persons, but property.

41 years later, the Court compounded its sin by ruling the federal government had no constitutional power to enforce integration, thereby legalizing racial segregation in Plessy vs. Ferguson (1896), which created the odious concept of ‘separate but equal.'

It would be another 58 years before the court erased the stain, unanimously deciding in Brown vs. Board of Education, that little Linda Brown had a constitutional right not have to walk five miles to attend an all-black grade school when a perfectly fine white school was just across the railroad tracks from her home in Topeka, Kansas. When the Court ruled unanimously that the Constitution does not condone either segregation or discrimination; it really set the stage for the civil rights movement.
Cases involving abortion, income tax, gay marriage, the separation of church and state, the environment, war powers, protecting the rights of minorities and criminal defendants, privacy, the war on terror, speedy trials, search and seizures, the right to counsel, and countless other issues have since been litigated; often to a narrowly divided Supreme Court where 5-4 decisions are commonplace.

My decades-long beef with my buddy Leo often mirrors that sharp ideological division in the Court over what the Constitution really says. Our current contretemps is whether the Commerce Clause (wherein the federal government has the right to regulate trade across state lines) implicitly gives the feds the right to require citizens to get health insurance. Or, conversely, whether the 10th Amendment, (which says that powers not specifically granted to the federal government are still the property of the individual states) allows the citizens of those states to opt out of ‘Obamacare.'

For fear of alienating you dear readers I won't say which side of the Commerce Clause/10th Amendment Obamacare debate I'm on. But the beauty of our passionate disagreement is that 224 years later, the debate among "We the People" is as fresh and uniquely American as it was in 1787, when those 55 delegates in the State House in Philadelphia struggled to spell out our rights vis-à-vis our government.

The Declaration of Independence written in that same Philadelphia hall 11 years earlier created our nation. The Constitution created the legal framework for a republic, which will last forever.

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