What is a woman? What is our Constitution?

Do our U.S. Constitution and its amendments, especially the first 10 amendments that we call our "Bill of Rights," really protect our rights and our freedoms?

If you said, "Yes," you are terribly naive.

Our Constitution, as amended, is nothing more than parchment with words written on it. It can no more protect your rights and liberties than can a sheet of toilet paper.

The only thing that guarantees your rights and your liberties, is a commitment by all Americans to govern and live according to the words and meaning of our Constitution. Without that commitment and without consensus on that matter, your rights and liberties, and those of your children, will vanish like the last winter snows on a warm spring day.

Our Constitution was a great experiment. It was the first written Constitution.

Our founders realized it had to be "faithfully executed," if their liberties and those of their descendants were to be secure. To that end, the president, all U.S. senators and representatives, all governors, all members of the several state legislatures, all federal and state judges, before embarking upon their duties of office, take an oath to "support the Constitution" as the "Supreme law of the land."

But what does it mean to construe the Constitution and its amendments "according to its words and their meaning?"

Our Supreme Court has repeatedly said, "The duty of the court is to interpret the instrument [the founders] have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted..."

And the court has warned, "Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes."

Again, our Constitution today is nothing more than a piece of paper. It protects our liberties only to the extent that our president, Congress and court act to implement its words and meaning consistently with the intent of our founding fathers.

Consider the danger of a judge or judges ignoring the founders' intent, and re-defining the words of the Constitution to give them a "more enlightened meaning."

The words "due process" had a very specific meaning for the men who wrote our 5th Amendment. Once the intent of the "founders" is discarded, then are not all alternative "more enlightened" intents equally valid?

A simple illustration: President Joe Biden nominated Judge Ketanji Brown Jackson to serve on the U.S. Supreme Court (She was confirmed on Thursday.)

At her confirmation hearing Sen. Marsha Blackburn, R-Tenn., asked the judge to "define woman." The judge answered, "I am not a biologist."

Was Blackburn's question a "gotcha question," or was she trying to get at something important? Does it matter how a judge defines the word, "woman?"

There is an NCAA swimmer, born a male, who is now dominating in women's swimming events. Should that swimmer be allowed to participate in NCAA women's sporting events? Is that swimmer now a "woman," because he now believes he is a "woman?" Because he has undergone gender confirmation surgery? For some other reason?

The answer to this question is critically important to every female participating in high school, college and professional sports. It is an issue that will ultimately be decided in the U.S. Supreme Court.

If the court defines "woman' as it would have been defined by our "founding fathers," today's women and their daughters win — especially those participating in school and professional sports.

If the judges decide that a former biological male can be considered a female, women will be displaced on their sports teams by males who now consider themselves females — biologically-born males who weren't good enough to win against male competition.

The University of Connecticut has a terrific women's basketball team. What chance do you think they would have against the Duke men's team, if to win a championship, the Duke men suddenly declared themselves women and were allowed to participate in the women's tournament?

Title IX was enacted to prohibit discrimination based on sex. In trying to insure women equality of opportunities with men, did Congress intend to include as women, men who had changed their sex? Did Congress intend to allow bigger, stronger former-male athletes, in the name of "equality," to dominate women's sports?

How the court defines "woman" is critically important. Once "original intent" is eschewed as the pole star for constitutional or statutory construction, all alternate intents become equally valid. Then, rather than the Constitution being the rule of law as envisioned by the founders, we substitute an ever-shifting rule of law reflecting "popular opinion or passion of the day." Toilet paper.

Copyright 2022, John Donald O'Shea

First Published in the Moline Dispatch and Rock Island Argus on April 9, 2022