Monday, April 15, 2024

Supreme law always changing


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Since neither He, She Or It . . . is an island, I regard Carl Moore’s column last Sunday under that headline as connective tissue to the Obama health care law now being challenged as unconstitutional in the United States Supreme Court.
The American judges will read the centuries old constitution and apply it to a 21st century problem without rewriting a single word of the  original document.
But Carl Moore says we need periodic change  of our Constitution, because of some of its language.
He writes: “English, despite its beauty and complexity, has a flaw about which I have wondered ever since I learned to read. It lacks a gender neutral third person singular pronoun.”
Moore also says that we have accepted the generic “he”, “him” or “his”, giving little thought to the possible (his word) discrimination against the female sex, even “when women have reached the topmost positions”.
He complains that the word “he” appears throughout the Constitution, except when referring to the Queen, and he asks: Did the drafters of the Constitution consider one day that a woman would become president of the Senate? And even more generally, he wonders: “For example, who in 1966 had heard of digital technology?”  
Moore cites, in support, the views of Thomas Jefferson, United States president, that a constitution should be rewritten to fit the realities of every generation every 19 years. Mr Moore suggests every half-century. Simply put, but deep!
Jefferson was not sparing in his language and Mr Moore quotes him: “No society can make a perpetual constitution, or even a perpetual law. The earth belongs to the living generation . . . . The living are masters of their own persons, and consequently may govern them as they please . . . .”
Mr Moore’s concerns seem simple but raise profound issues. His beef is about the language, and not the jurisprudence. He is lucky. On the other hand, judges must deal with both the language and the jurisprudence.
Legally speaking, constitutions are said to be living instruments. They live and grow with the societies to which they apply and so there is no need for constant change of the constitution, since we entrust the matter of “changing the constitution” by interpretation to the hands of the judges.
Their primary job is to protect the citizens from the tyranny of the majority, as expressed by the acts and some laws passed by the government which rules with the majority power derived from the polls.
Well known Barbadian case
Here is how one Privy Council judge put it in a well known Barbadian case:
“Parts of the Constitution, and in particular the fundamental rights provisions of Chapter III, are expressed in general and abstract terms . . . .
The terms in which these provisions of the Constitution are expressed necessarily co-opt future generations of judges to the enterprise of giving life to the abstract statements of fundamental rights . . . .  
“And the judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. The text [of the Constitution] is a ‘living instrument’ when the terms in which  it is expressed, in their constitutional context, invite and require periodic examination of its application to contemporary life.”
This view of the issue ought to convince Mr Moore that our Constitution is always changing and that these interpretative changes reflect the requirements of the contemporary society as the judges see fit.
So it does not matter that digital technology was not thought of in 1966. Nor does it matter that the founding fathers may not have thought of a female president of the Senate in earlier times. Nor is it particularly important that the word “he” is frequently used in the Supreme Law, because the “law is not an ass”, as so many think, and the legal interpretation of the masculine includes the feminine. He means “he” and “she”.
So that while Carl Moore’s concern is sincere, it is not one that will disturb even the most ordinary of minds carefully exposed to the rudimentary principles of the Constitution.
We distrust politicians to interpret the Constitution, and we are right to do so; because we elect them on the basis of popularity, and they might be inclined to “find no fault with this man” and yet hand him over for crucifixion because the crowd in a moment of collective insanity shouts “give us Barabbas”.
And history shows that in matters of constitutions and of human rights, the role and independence of the judiciary, as interpreters and guardians of our Supreme Law, is as perfect a safeguard of our rights as man’s ingenuity can devise against constant chopping and changing of that law!
• Ezra Alleyne is an attorney at law and former Deputy Speaker of the House of Assembly. Email


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