Preparing for the Bar, I have come to one main conclusion about constitutional law. Basically, all of constitutional law is either common-sense or just wrong. There isn’t much middle ground where the real law actually is convoluted but is nonetheless correct. When I say “common sense,” of course, I am referring to the common sense of the average fifteen-year-old or greater who knows how to read and has actually read the Constitution.
Consider, for example, the “right to privacy” found within the Constitution in Article…well, I’m not exactly sure where. This legal privilege basically means the freedom to engage in illicit sex without consequence, but ” right to privacy” sounds better. It does not actually refer only to private acts, and a great number of private acts are not covered by the privilege. (For example, two competing businessmen who meet in private to fix high prices cannot escape penalty based on the right to privacy.) This convoluted and deceptive term alone is enough to cast suspicion upon the constitutionality of the idea. But then when you start hearing about “trimesters” and all that, you pretty much know you have gone off course.
Other examples could be provided. As with the “privacy” privilege mentioned above, you know that things have become convoluted right off the bat (and thus, probably wrong) when the terminology gets confusing. For example, something is probably wrong when courts start redefining every human activity as a part of “interstate commerce” simply so the federal government can have the authority to regulate further. Another aspect of convolution is self-contradiction, or the inability for observers to discover any logical pattern. Thus, we see convolution when the Supreme Court declares that high school education is not a constitutional right (probably correct) and that creationism may not be taught alongside evolution (possibly correct, although doubtful), but that the evolution must be taught in schools no matter what (probably wrong). Simply put, it is inconsistent to hold that schools need not teach at all, but that schools must necessarily teach evolution. This internal, convoluted contradiction gives us a hint that the Constitution has been violated by the courts.
Contrast these instances of overall convolution with the relatively sensible judicial interpretation of free speech as it relates to defamation laws. Defamation laws prohibit the slander of individuals, whereas the First Amendment allows for freedom of speech. Although the technical rules in defamation First Amendment cases can get a tad complicated, they all stem from the same basic idea of allowing greater freedom to individuals who are speaking about public events or public figures. They bestow greater freedom in cases that the First Amendment was actually designed to address. There is common sense in this area of the law. Although the First Amendment does not explicitly state that it was designed to protect political speech — as opposed, for example, to the publication of military secrets or pornography — common sense tells us that such was its purpose.
Ultimately, I hope my realizations will assist me in Bar preparation. Specifically, it should enable me to utilize my own common sense on most questions, and to keep in mind only the limited areas where the Left has established convoluted exceptions to common sense for their own profit.
The Constitution is meant to govern and be interpreted by individuals with common sense. It is a rather short, simplistic document. When our interpretations get overly complicated, chances are they may be wrong. That’s probably why Justice Thomas tends to write short judicial opinions. Leftists do not utilize common sense, and so they create convoluted case law that requires armies of lawyers to sift through. Interpreting leftist case law is an attempt to draw logical principles from anarchy.
Of course, someone might always argue that common sense is in the eye of the beholder. For the most part, I don’t think that’s true. Textualists and originalists who look to the words and basic intent of the Constitution do have arguments amongst themselves at times, but not big ones. The big arguments are generally held only against 1) the people who pretend to honor the intent but lack all decency and sense, or else 2) the honest traitors who simply admit that they have abandoned the true rule of law.