Of Boobies and the Law

When I was young and trying to get laid for the first time, I followed a young lass into a college class I should never have been in as a first term freshman. Taking U.S. Constitutional History as a freshman was not the norm, in actuality it was a recipe for intellectual and GPA disaster.

U.S. Constitutional History was basically a Constitutional Law class as it would be taught at lesser law school. Does the term weeder course for the pre-law set ring a bell? The course to my surprise set the tone for my life; it sparked my passion for the Constitution that continues on today. Despite facing intellectual rigor beyond my station in life I got a B+. On the other hand I did not get laid but I did get to squeeze the young lass’s boobies. So bottom line U.S. Constitutional History was a win-win for me.

I remember two areas of study from that course in particular, the judicial slight of hand that is Marbury vs. Madison and Beard’s infamous (famous?) thesis. Marbury I have lived breathed and talked about in four different courses including my senior law school seminar in Constitutional Law. However the allegations of Beard that our governing document was simply the result of self interested men cutting deals to protect their individual interests always comes back to me. It is a disquieting concept. In the tome An Economic Interpretation of the Constitution of the United States (1913), Beard argued that the Constitution was not really the work of political ideologists but rather a construct balancing the economic interests of the drafters’ particular partisans.

Early on after the publication of An Economic Interpretation Oliver Wendell Holmes assailed Beard’s thesis, Holmes was emphatic in stating some persons have emotions not dependent on their pocketbook and that patriotism was really the source of the Constitution. Robert Brown in the early 1960s argued that the status of the free persons of America at the time the document was created was basically equivalent, mostly a middle class analog. The primacy of this class’s overall interests was clear for the Constitution was created to do many things in terms of personal rights that extended far outside the economic milieu. Our Constitution was in essence “a democratic document framed by democratic methods for a democratic society”.

Most of the above is cribbed from a section of Loose Sallies Essays by Daniel J. Kornstein but it is in accord with what I remember of the class. In some ways I think the Supreme Court in its recent rulings on campaign finance has lost sight on the idea that the Constitution and our founding principles were focused on maintaining our democracy including equality of participation in the system as opposed to championing property rights. Remember while the Declaration of Independence first stated life, liberty and property, property was excised in favor of “the pursuit of happiness”. Jefferson made this change so as to enshrine the freedom of opportunity and its corollary the duty to help those in want into this seminal work.

Ah how fondly I remember when life was so much simpler and my thoughts were focused only on the pleasures of the flesh and not the protection of our citizens’ enfranchisement in governance.