Wednesday, June 16, 2010
My Constitutional Right to Run for the Senate (Despite the Fact that I am Only 27 Years Old)
(Hat tip to Religion in America.)
Recently retired Justice David Souter recently spoke at Harvard and attacked the originalist (or fair reading as he calls it) interpretation of the Constitution, which assumes that the Constitution has hard and fast meaning and it is simply the job of judges to apply these "simple" truths. Souter believes in a "living" Constitution, that the Constitution is open to reinterpretation by judges in light of current society. Souter's main argument against fair readers is that the Constitution contradicts itself so one must therefore make a value judgment and choose one part over the other. Now there are certain things that Souter believes that a fair reading can be used for.
If one of today's 21-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person's age, quoting the constitutional provision that a senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected. No one would be apt to respond that lawmaking was going on, or object that the age requirement did not say anything about ballot access.
I find this statement to be naïve beyond credulity. This clause in the Constitution does not require any serious creativity to get around. I have the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Constitution contradicts itself. On the one hand the Constitution itself, denies me as a twenty-seven year old equal protection under law by not allowing me to run for the Senate (as well as the office of Vice-President or President), but the Fourteenth Amendment insists on equal access. If the Fourteenth Amendment means a Constitutional right for gay marriage then it certainly must also eliminate such ageist discrimination as putting age minimum's on running for public office. Age minimums serve no other purpose but to deny that I am equal to any thirty year old. From here the matter is simple. The Fourteenth Amendment repeals all age minimums, even those explicitly placed into the Constitution.
The only way the Constitution has any meaning is if it is read from an originalist perspective. Judges act in place of those who wrote the Constitution and its amendments, much the same way that trustees of an estate follow the desires of the deceased as expressed in a will. The Fourteenth Amendment does not eliminate age minimums for the same reason that it does not mean that gay marriage is a Constitutional right; the Radical Republicans of 1868 gave no indication that this was their intention and one would be hard pressed to say with a straight face that they would have supported such an interpretation if asked. Anything else and the Constitution simply means whatever you want it to mean and thus ceases to exist.