It seems to be another 4th of July and so, we are disposed to reflect on the course of American History. Plato said that each “State” should properly have its own myths. As a major agricultural nation, we do, in fact, have a bumper crop, some being romanticized versions of factual occurrences, others, pure fiction.

With sincere apologies to such companies as Hallmark Cards and the plethora of illustrated wall calendar manufacturers, and to the American media, we would identify the salient legends of American folk-lore residing in the colorful inventory of myth America. We also have some useful words on the far more important subject of the U.S.Constitution’s understanding and application.

The theatrical image of the storm-tossed Pilgrims landing at Plymouth Rock, the celebrated coin toss by General George Washington across the Potomac, the staged, “Original Thanksgiving Dinner,” in which Native Americans broke bread with colonial settlers, the famous heroes of the wild west, most of whom, in reality, were dudes running from the law, their creditors or their wives, are endemic to our culture. These tall tales and fanciful accounts, are, in reality, harmless and may, in fact, serve the useful purpose of binding our disparate citizenry together in a mutually shared traditional past.

Significantly harmful however, are self-serving mythical approaches to the meaning and application of the Constitution, the ultimate share-holder’s agreement for the nation. There are those (largely of conservative inclination) who would arrogate to themselves the sole ability to discern the “original intent of the founders” (when it serves their interest) and demand the alleged “intended result.”

Arguably, the greatest jurist in the history of the U.S. Supreme Court, was Benjamin Cardozo. In his uniquely masterful literary style, he observed that the authors of the Constitution had the wisdom and foresight to draft the document in non- specific general principles to be relevantly applied to future changes in society; this scholarly and mature approach to interpretation, the “sociological” context was his view of original intent and not some inflexible worship of specific vocabulary.

Those who militate for “original Intent” would  necessarily call for legal interpretations in the context of the times of the founders, the 18th Century, when women could not vote, own property or sign contracts and when black human beings were perniciously considered mere agricultural equipment ; Justice Cardozo looked to a living document, always relevant to the times.

As mentioned, the same, self-serving people who would espouse original Intent, when it comes to human rights, or, generally, when it suits their nuanced interest, will drop the theory, like a hot potato, when it clearly does not. The shameful number of killings, and the minimization of the value of human life in our country, is undeniably due to the militant opposition to any and all rational gun control. In this instance, the Constitution’s  2nd Amendment is clear as is its original intent of the drafters: “A well- regulated militia, being necessary to the security of the free state,  the right of the people to bear arms shall not be infringed.” Can any rational and disinterested person deny that the Amendment is limited in  application to a State’s right to an armed militia?

On this significant American holiday, it may be of further interest to consider the Declaration of Independence in its original and contemporary contexts. Its most celebrated statement on the subject of inalienable rights and the equality of all men, cries out for comment. Initially, the choice of the noun, “men,” was specifically intentional and was not a general reference to mankind.  We would emphatically dispute the notion, that the statement has the same intention and meaning as the Bill of Rights. This is, no doubt, just another American myth. The draftsman meant men and not women (who could not vote, own property or sign contracts) nor black people. To us, it was a clear statement (only) that the institution of inherited status or social class which prevailed throughout the ages in Europe,  would not be applicable here.

Enjoy the holiday!





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Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Essayist Literature Student and enthusiast.

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