NEWS BLOG (WSAU) Wishful thinking is sometimes useful in public policy. We'd never get a new school, highway, or park built of someone didn't envision something that wasn't there yet, and then take action to bring it into being. But wishful thinking in the law is deadly. It invites shortcuts on matters that should be debated and voted on.
There are two examples in the news in the last week. One is national, one is local.
There is a new school of thought on the U.S. Constitution called 'fundamental assumptions' and it's being presented in legal arguments. The danger is that it may creep into legal opinions that will eventually sorted out at by the Supreme Court. Here's an example: the Founding Fathers never dreamed that so much wealth would be concentrated in the hands of so few people. That was a fundamental assumption when the Constitution was drafted and ratified. And because that's one of the underpinnings of our founding documents, the courts should take that into account in all types of cases that deal with wealth redistribution or political speech.
You'd be amazed at how popular that argument is becoming. But it's bunk. Carry that thinking further and you'll soon have people pretending to channel the mind of Thomas Jefferson to divine all types of things that the Constitution doesn't actually say. The law would literally become a moving target centering on "what were they thinking?" The law must say what it says -- what's actually written -- and nothing more. (Liberals crawl back into their shells like a snapping turtle when they're reminded that one of the undeniable fundamental assumptions was slavery, and that the ultimate non-fundamental assumption is same-sex marriage.)
And last night there was more wishful thinking at Wausau's City Council meetings. Some council members want to delay the hiring of a new Public Works Director on the possibility that Wausau might soon switch to a City Administrator form of government. Wrong. The City Administrator idea requires a change in the city charter (and is an overall bad idea; I've argued before that democracy is not well served when a powerful administrator isn't accountable to the voters). While the jury is still out on this sweeping change to city government, an important department head position can't be left open. The council is right to want input in hiring the new DPW-head. The idea that this is a precursor to a new administrator's post is premature, ambitious, and a bridge too far.
The written law is the guardrails the government must live within. And there are democratic procedures for changing, adding to, or deleting what is written. Beware of peoples who want to steer into the wilderness of hopes and dreams without going through the process.
Image: Deep Thinking byWissam Shekhani, ink on paper, via WikiCommons.com