The Highest Law of the Land

In this post, I will explain how, in an ideal world, it would not matter to us so much as it does now who becomes our next president. The Founding Fathers asked an important question during the formation of the Constitution: How much power should a centralized federal government have? Most of the text of the Constitution deals, at least indirectly, with this central issue. The colonists were tired of government fiat from overseas, and wanted to govern their own affairs. None of them wanted another king in Philadelphia.

Thus, one central issue of the Constitution was define how much power the Federal government should have. Let’s put this another way: Each state already had, under the Articles of Confederation, almost unrestrained legislative authority within their own state boundaries. The question was, “How much of this authority should we delegate to the Federal government?” They were reluctant to delegate any significant powers to a centralized authority, because it is common knowledge that local legislatures govern best. Just as a Parliament or King in England should have little or no say in American affairs, they presumed that a man in Philadelphia should have little say in what happens in Maine. Their goal was not a uniform government throughout the states; Ron Paul explains, “The Founding Fathers did not intend for every American neighborhood to be exactly the same—a totalitarian impulse if there ever was one.”1

Thus, they developed a list of enumerated powers—a list of the particular powers that they would delegate to a central authority. We can find an almost unanimous support among the Founding Fathers for the idea that the Federal government’s powers are limited to those listed among the enumerated powers of Congress. This is expected, considering that “common law held such lists of powers to be exhaustive.”1 The oft-called “Father of the Constitution,” James Madison, said, “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”1

This, however, is exactly how many people today treat the Federal government; they believe that the Federal government can do anything that does not violate the Bill of Rights. They see the government as “indefinite,” “subject to particular exceptions.” However, this is exactly what our Founding Fathers feared would happen, and to prevent it they added the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Notice the rhetoric: the powers of Congress are delegated powers, with the rest being reserved to the states. This is the rhetoric that was used to defend and frame the document. Thomas Jefferson, though not present at the convention, but who was well acquainted with its development, said, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” Many opposed the addition of a Bill of Rights to the Constitution. Why? Because, they claimed, why should we forbid the government from certain activities, if such activities were never authorized in the first place? They feared that by adding a Bill of Rights, people would interpret it as the only limitation of the federal government, rather than just as a precautionary measure.

Alexander Hamilton was at the convention, and is on record as the most vocal advocate for a strong centralized government. However, even he said, “This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” If anyone would have been against limiting the Federal government, it would have been him. Yet he freely emphasizes that the enumerated powers represent the limit of congressional power. These are the only issues over which the states were going to relinquish control. Ron Paul says it well:

The whole point of the American Revolution was to vindicate the principle of local self-government. The British had denied that the colonial legislatures were exclusively endowed with the power to make political decisions for their peoples. The colonists, on the other hand, insisted that they would be governed only by their elected representatives. That remained the operative principle in the Articles of Confederation as well as the Constitution: local legislatures are presumed to hold authority except in areas in which they have expressly given up that authority.1

General Welfare

Many people object that the words “general welfare” allow the Federal government much more lee-way in interpreting its legislative powers. James Madison responds:

With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.1

In other words, the list of enumerated powers are an elaboration of the actions Congress may take in order to provide for the common welfare. Some were not convinced that the general welfare clause would not be interpreted too broadly. “Patrick Henry raised precisely this concern,” says Ron Paul, “as the Constitution was being debated in Virginia: wasn’t the ‘general welfare’ a dangerously open-ended phrase that would permit the federal government to do whatever it wanted, since government officials could blandly claim that all its measures were intended to promote the general welfare?”1 A valid concern from a colonial population that feared a strong central government. Paul explains that the answer given by those advocating the Constitution was “no, ‘general welfare’ did not and could not have such a broad meaning.”1

However, despite such reassurances from the Constitutional convention, it does seem to be interpreted that way today. Such should not be the case. I suppose just quoting James Madison isn’t enough to be persuasive on this issue. Let’s consider, though, the classic slippery slope argument: if we interpret the general welfare clause loosely, rather than as elaborated in the following list, we have lost the simple safe-guard against the an excess of power in the centralized government. Since the Constitution was designed to limit Congressional power, any interpretation that fails to sustain that limit clearly does violence to the purpose of the Constitution.

Common sense, right? Why have an enumerated list, if Congress could do whatever it wanted, regardless? Why have the extra safe-guard of the 10th amendment, if we were never meant to have a limited central government? If we interpret the Constitution loosely, the document becomes neutered of its role in protecting the citizens and legislatures of the various states from the encroachment of an ever-growing federal government. This should be reason enough to interpret the enumerated powers as the strict limit of the authority of the federal government. The same applies for the powers of the executive branch as well.

The Living Constitution

I fully agree that the Constitution should change and evolve to meet the needs of the modern day. Those who feel that the enumerated powers listed in the Constitution are too restricted are not without hope. There is a mechanism designed by our Founding Fathers for adapting the Constitution to our modern era: constitutional amendment. For example, I am grateful that amendments to the Constitution have allowed women to vote, ended slavery, etc.

However, many people who advocate a “living” constitution do not mean adaption to present circumstances via amendment; instead, they believe that we should feel free to reinterpret what is already there to suit our present needs. What is the problem with this? Ron Paul explains:

If the people agreed to a particular understanding of the Constitution, and over the course of the intervening years they have performed no official act (such as amending the Constitution in accordance with their evolved ideas) reversing that original understanding, by what right may government unilaterally change the terms of its contract with the people, interpreting its words to mean something very different from what the American people had all along been told they meant?

A “living” Constitution is just the thing any government would be delighted to have, for whenever the people complain that their Constitution has been violated, the government can trot out its judges to inform the people that they’ve simply misunderstood: the Constitution, you see, has merely evolved with the times. …

That’s why on this issue I agree with historian Kevin Gutzman, who says that those who would give us a ‘living’ Constitution are actually giving us a dead Constitution, since such a thing is completely unable to protect us against the encroachment of government power.1

Unless we make changes to the Constitution via amendment, we don’t have a living, evolving Constitution; we have a dead one, since it becomes useless to us. Words that can mean anything really mean nothing. In other words, let us adapt our Constitution to our present circumstances using its own built-in mechanisms. If we want the federal government to be involved in welfare; if we want the president to have power to engage in warfare; if we want the congress to have complete power over the free market, lets amend the Constitution and make it happen. I will oppose any such amendment; however, at least these activities will then be legal.

Consider how upset you would be if you authorized your legal agent to do a, b, and c on your behalf, and no more, and he goes and does a, b, c, x, y, z on your behalf, and claims that he deviated from the original contract because he decided it was in your best interest? Now, you may agree that x, y, and z were good things; however, should he not have come to you first, and asked for an increase in his authority? Should he not have asked for a revision of the original contract that delegated to him his powers prior to his actions?

Conclusion

I believe that if we understood our Constitution, and if both our presidential candidates understood our Constitution, we wouldn’t be all that concerned about the upcoming election. It wouldn’t really matter to us as much as it does now. It is because the President and Congress have stolen massive amounts of power from the states and from the people that we are so concerned about who holds that power. Let me conclude with a few more words from Ron Paul:

If our government were scrupulously faithful to the Constitution, we would not need to be especially concerned when a person who represents a philosophy different from our own takes political office. Our Constitution delegates relatively few tasks to the federal government, so it should almost be a matter of indifference who is elected. We wouldn’t have to worry that a social policy of which we disapproved would be imposed on our neighborhood at the whim of a new president and his court appointees, or that more of our money would be stolen to fund yet another government boondoggle. And we would also be spared the spectacle of countless American individuals and corporations frantically donating to candidates for political office during election years in order to reserve a place on the federal gravy train if their favorite should win.1

Isn’t this wonderful? Wouldn’t this relieve the heavy burden that now accompanies elections to federal office? All the important debates would take place on a local, state level. Isn’t that fantastic? We can exert more of an influence on state politics. It will be easier to make changes to policies we dislike. And, if all else fails, we can move to a different state. This is a much better situation than what we have at present, where important debates are had at a national level, where the outcomes affect everyone, and by candidates who will have no Constitutional authority to enforce the promises they make. I agree with Ron Paul that the Constitution is far from perfect. However, he says,

Few human contrivances are. But it is a pretty good one, I think, and it defines and limits the scope of government. When we get into the habit of disregarding it or—what is the same things—interpreting key phrases so broadly as to allow the federal government to do whatever it wants, we do so at our peril. We will wind up with a situation like the one we face right now, that few Americans are happy with.1



Notes:
Ron Paul, The Revolution: A Manifesto (New York: Grand Central Publishing).

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20 Responses

  1. Great post, Jeff.

    Government is nothing more than the general manifestation of public will. The fact that the vast majority of Americans foster an entitlement mentality allows the government to become a socialist popularity contest. The federal government has grown so powerful because we the people have clamored for more “freebies”, more “leadership”, and more control.

    Obama is right: we are the people we’ve been waiting for. But we’ve been doing the wrong things, and based on opinion polls and public sentiment, we’re going to continue in the wrong direction—and, therefore, so will the government.

    Heaven help us all, because we have proven that we can’t help ourselves.

  2. Very thought-provoking post, Jeff.

    There are several things I want to say, but I only have time to provide a few general thoughts right now.

    1. I agree that the Constitution cannot mean whatever anyone says, but we still cannot avoid “interpreting” the Constitution, and certainly we will not be in consensus here. This problem can be overcome, but we need to realize that there is not only one obvious meaning to each thing in the Constitution. That is giving one very short document way too much credit. For example, it is not obviously apparent that the Founders’ intentions provide the key to proper interpretation. Now, it would be very unwise to ignore these intentions, but to say that they dictate how the Constitution is read is, well, one interpretation.

    2. Likewise, I think you are underestimating the necessity of “living” interpretation if the only way that the Constitution lives is through amendment. Amendment is certainly the most obvious way the Constitution is adapted. But the Constitution, as a theoretical and abstract document, must constantly be adapted. The fact that the Founders did not give more clarifications about how these abstractions are to be applied within specific contexts suggests that they either underestimated this problem or that the Constitution needs to be somewhat flexible. If the first is true, then we need, in the spirit of your post, a constitutional amendment that clarifies this problem. This same solution might be good if the second is true as well. So here is where I think we might find some common ground — the proper solution to this problem is for a Constitutional amendment that clarifies certain interpretation issues with the Constitution.

    More in my next comment …

  3. 3. Another recourse is through the Supreme Court. That is their constitutional authority. Here is where I think we might have a fundamental difference, Jeff. When we consider not only the document itself, but also how the Supreme Court has ruled on how to interpret the document, we run into much trickier issues about what is and what is not constitutional. I would say that any ruling of the Supreme Court is, by definition, constitutional. I suspect that you would disagree, Jeff. I suspect that you would argue that the document itself has a certain meaning that the Supreme Court has violated. If so, then there is a weakness in the document, considering that the only check that it gives regarding interpreting the Constitution is the Supreme Court. If the Supreme Court can rule wrongly, and this is a problem the people want to weigh in more directly on, then the problem solution is a constitutional amendment.

    4. Continuing with this same thought, I would argue that we have made the Constitution what it is. It was not simply one document with a fixed meaning. And our “making” of the Constitution extends beyond Constitutional amendments. We make the constitution what it is by the presidents and legislators we vote for, and who they in turn appoint and approve as Supreme Court justices. In this way, we establish a precedence for what is and what is not constitutional. Any legal scholar will tell you that in determining legal cases, it is never sufficient to simply look at a legal code. The judge must look at precedence. Certainly, precedence can be overturned, but this should not be done lightly.

  4. 5. If what I have said above is not true (i.e., the Constitution retains a purity of meaning regardless of how we interpret it), and it is the case (as you argue) that we have violated the Constitution, then I agree with you that what we are doing is largely “illegal.” If this is the case, then it is odd that people like Ron Paul or Chuck Baldwin are/were running to be the president of an illegal entity. Their being president certainly wouldn’t change things, considering that the Constitution would continue to be illegal. Paul or Baldwin could try to veto things that they think are violations of the Constitution, as well as appoint justices who would interpret the Constitution the way that they do, but this would only make what we are doing slightly less illegal. One could argue that their trying to “work within the system” is in fact a way of upholding a broken Constitution. Would not the more consistent response be a rebellious revolution? Wouldn’t this be what we would expect of a CEO of a company who is engaging in illegal tactics? To quit and report for the company to be prosecuted according “higher powers”?

  5. 6. In conclusion, I think that the fact that Baldwin and Paul are actually trying to get people’s votes rather than taking a revolution by force suggests where the real power lies: the people. “We the people” are the ones who continually write, interpret, and live out the Constitution. In one sense, we always do so legally. If we allow leaders to interpret the Constitution in a very broad (even arguably meaningless) sense, then it is something that we allow. We implicitly rewrite the Constitution to mean these things. What we are doing is not “illegal”; it is legal precisely because it is upheld by the people. None of this means that there are not ways that we could live out the Constitution in better or worse ways. But however we live it out, we are the authority. And if we have gone so far that this is not the case or that the way we live out the Constitution is so radically altered from the underlying “common law” and inalienable rights from which the document was written — then the proper response is revolution. True revolution. Not electing a Constitutionalist to be president. The fact that the latter is occurring rather than the former suggests that Constitutionalists think that the current system is not broken and that we are, in fact, still a “lawful” nation.

  6. 7. One last thought. From an LDS perspective, a theocracy, not a democracy, is the superior government. Thus, the democratic principles I’ve discussed are certainly limited. Nonetheless, even a theocracy is upheld by the people, by knees that willingly bow and tongues that willingly confess that Jesus is the Christ. Until this happens, the U.S. will be a democracy, for good or for ill. Even the Savior himself, living in a very imperfect society, said that we should “render to Caesar what is Caesar’s.” I take this to mean that we are called upon to live in and do our best in our imperfect governments. Sometimes doing our best means working with what we’ve got, and that might include doing our best to vote for the best person, even realizing that he/she is imperfect and will continue certain errors (arguably) of the past. To suggest that Latter-day Saints who vote for Obama or McCain are violating the Doctrine and Covenants because these individuals continue to violate the Constitution and thus are not “honest” or “wise” (as some LDS constitutionalists would argue) is, well, one interpretation. And it is far more than the Brethren are saying.

  7. I think you’ve misunderstood. I agree with your first four points, with some caveats, but I come to VERY different conclusions.

    First, the Constitution isn’t illegal; what is illegal are the acts of Congress and the President that vary from it. The system isn’t broken, the people are. It is the people who are deviating from the Constitution… the Constitution itself isn’t changing. Thus, the solution is to elect representatives and an executive who will follow the Constitution. That is exactly what Paul and Baldwin are trying to do.

    Second, we don’t live in a democracy. At least on a federal level. That was never the intent of our founding fathers, and is a very distorted idea of what our nation was to be. On a state level, I’m sure you could call some state governments a democracy. However, the federal government was only to be the agent of the state governments, performing and exercising only those duties and powers the state governments delegated it. Sure, those we choose to execute those powers are elected democratically, but that does not make us a democracy. A democracy is when the people choose what happens; the Constitution was designed to supersede the ambitious desires of those chosen by the people. The Constitution itself declares itself to be the highest law of the land, even higher than the voice of the people. As I explained in this post, I’m not sure a strict democracy is even a good form of government:

    http://ldsphilosopher.wordpress.com/2008/07/04/democracy-and-ultimate-sovereignty/

    In the end, the Founding Fathers felt they had established a republic of virtue, not a democracy. People want power. Whether it is one person, the wealthy, or the many, people will abuse power. Thus, they formed mechanisms to restrict the ambitions of power hungry people. To me, there is no qualitative difference between tyranny of one and the tyranny of the majority. Both were to be shackled by the rule of law, rather than the rule of whim (by an individual or the crowd).

    I agree that we as the people take responsibility for allowing our leaders to implicitly “rewrite” the Constitution. That is why we are inviting people to elect officials who will follow the Constitution, rather than deviate from it for politically popular causes.

    Now, I said I grant your first four points, with some caveats: Sure, there is no one single absolutely correct interpretation of the Constitution. But there are certainly some wrong interpretations, and the criteria can be easily seen: any interpretation that neuters the intended purpose of the document is a wrong interpretation. For example, if I delegate legal authority to some to act on my behalf, and draft a document designed to prevent the individual from exceeding his authority, and then he interprets that document to mean he can do whatever he wants on my behalf, then his interpretation is wrong.

    For example, tell me how you can justify the bulk of federal welfare programs in the face of the tenth amendment. There are some interpretations that represent deviation from the simple language of the amendment. Some interpretations just cannot be justified in the face of the original text. Surely you understand that, from a hermeneutical standpoint, some interpretations do violence to the meaning of the text.

  8. It just seems to me that you’ve created a way of understanding the Constitution that, for all intents and purposes, does away with it. Why have it, if we can just vote to interpret it however we want? Like I said: words that mean whatever we want them to mean nothing at all.

  9. Jeff,

    Your arguments seem pretty sound to me. I find it interesting that the explosive growth of the federal government has some correlation to the direct election of senators as provided by the 17th Amendment. The US Senate no longer answered to the states.

    There were historical reasons for the 17th Amendment, including gridlock in the state legislatures, corruption and bribery charges, but it looks like the government has now lost all semblance of fiscal responsibility. If voters think they can forever vote for whoever promises the most goodies, the other side of this recession will not be pretty.

  10. I like how Connor Boyack describes the Constitution; I believe it allows for some flexibility, but only to a certain extent:

    The Constitution is a positive document, not a negative document—meaning that the powers mentioned there are the only ones granted to the federal government (hence the reason that the tenth amendment is a truism). So although some interpret the Necessary and Proper Clause to mean that Congress is somehow granted more powers, they cannot Constitutionally assume any power they have not been delegated by the people in the document—which specifies a few specific powers only.

    To take the “elastic” analogy at its face, let’s examine a rubber band. The nature of the rubber band is such that it can stretch back and forth a limited degree – within the tolerances it was engineered with. In that sense, it can be elastic and take various shapes while retaining its overall integrity and function.

    But a rubber band cannot duplicate itself, cannot be in two places at once, and cannot alter its shape to perform some other function. It is elastic and can adapt as necessary, but only to a certain degree. Similarly, the Congress has the power and authority to do what it wants with the powers it has been given (say, to regulate commerce with foreign nations or coin money), but cannot magically use its elasticity to take on a new function (say, NASA, the Department of Education, the FDA, etc.).

    Source: http://www.connorboyack.com/blog/the-lesser-of-two-evils#comment-57748

    In other words, lets say a rubber band is intended to hold a number of object together. It is designed to allow some flexibility, but at some point, if expanded to much, it breaks, and ceases to serve its original function; it no longer holds things together. At that point, we may use the rubber band for other purposes, but it has ceased to serve the purpose for which it was designed.

    I’m not saying the Constitution “breaks,” but rather that some interpretations make use of the Constitution in ways that render it useless in its original purpose.

  11. A few more thoughts: why do we need the federal government to assume all these powers that aren’t granted to it? Is it really necessary? Can’t all these problems be taken care of on a state level, by local state governments? If the answer is yes, then isn’t that where it should be taken care of? I say this because isn’t local government better able to serve the needs of the people than a distant gargantuan government? Why look to the federal government? Is it because we’ve grown so used to looking to the federal government for all the solutions, that we’ve forgotten that the State governments hold more power, are closer to the people, and that it is easier to enact new policies?

    For example, I believe the best solutions to the problems of Provo, UT will be enacted by the Provo City Council, the county government, and the sate government. Why do we need to involve the federal government in anything more than its enumerated powers?

  12. Interesting thoughts. As Dennis notes, we didn’t arrive at our current state in a moment. But that is no excuse for not seeking to follow the original intent of the Constitution.

    While Dennis is correct that we base our law on previous SCOTUS decisions, that does not mean that we must accept all SCOTUS decisions are constitutional, especially since some have cut new legislation out of whole cloth. These nine people are lawyers, not a Supreme Council of Ayatollahs.

    Those that believe in originalist interpretation of the Constitution should be under no delusions. The task they face is monumental. But I disagree with Dennis that revolution is the only solution to this dilemma. The leaders of the American Revolution only engaged in armed conflict as a final resort after having tried every other feasible approach. There are yet many avenues open, even if it means an incremental approach.

  13. Two presidents changed the way we interpret the Constitution in order to save our Government. The interpretation of the Constitution evolved out of necessity:

    1. Under Lincoln, the idea of a unified country overrode that of states’ rights. States’ rights is the excuse many Southern states used to secede from the Union. There isn’t a right or wrong to secession (the US started as an experiment after all), but because Lincoln proposed the idea that the Union is important and fought a war with that presumption, so we interpret that today. The Union, the whole country, works better together if more power is given to the Federal government as opposed to its disparate states. The reason we still have a United States is because of a belief in a Union.

    2. FDR was the reason for a lot of the government programs today. The economy was reeling and people were desperate during the great depression. They voted in someone who would do something, so Hoover’s stay-out-of-it administration was voted out and FDR’s I’m-going-to-make-a-change policies were voted in. Social Security, the FDIC, and a slew of “alphabet soup” programs were pushed through quickly. This saved America, if only a belief that American government worked for the people. Desperation leads to desperate decisions. If FDR hadn’t stepped in with his quasi-socialist, comprise policies, either America would have been stuck in a longer economic slump or looked for an even more authoritarian figure to take care of business which could have damaged the idea of democracy/republicanism in America to the point of overthrow.

    This is all just to say, we interpret the Constitution for a reason. Issues have come up where the states or the economy cannot fix themselves. Not to mention the fact that an 18th century document couldn’t predict the industrial revolution, let alone technological advances that are too powerful for a single state to face alone. The Constitution has adapted for the times because of the change in interpretation.

  14. Good points, Kelsy. One response: There are many scholars who believe that we would have left the depression a lot sooner had FDR not implemented his “quasi-socialist” programs. There is some reason to believe that it was exactly those policies that kept us there for so long.

    I do agree that times have changed. My point still stands: ought we use the mechanism of change the document itself provides? That is what we used to do.

  15. Jeff,

    I’ve been thinking more about this issue, including all of the comments that have been given, and I think that a crucial issue that really has been overlooked is the U.S. Supreme Court. I mentioned this earlier and “Reach Upward” has mentioned the Supreme Court a little, but I really think that there is a certain question that is at the heart of this issue.

    That question is: Are Supreme Court decisions, by definition, constitutional? If the answer is yes, then this is very significant because it shows another “mechanism” that is built into the Constitution. Now, strictly speaking, this is not a “mechanism of change,” but it is a mechanism of interpretation. This is a crucial point that I think you have been overlooking — and that I’m just now fully appreciating. Here we are going back and forth about how to interpret the Constitution — but the Constitution itself designates the Judicial Branch as the interpreter. This implies, of course, that not all interpretations would be obvious and there would need to be an authoritative body of interpreters.

    Like I said, Supreme Court interpretations are not a license for “rewriting” the Constitution. But it would not be incorrect to say that these interpretations are proper “footnotes” of the Constitution. This means that for a certain phrase (e.g., “Common Welfare”), there is a symbolic footnote that points to how the Court has interpreted this phrase. In this way, the Constitution does change, and this kind of change is completely understandable and necessary. These “footnotes” are surely not as authoritative or static (at least without amendment) as the Constitutional text itself, but they cannot be tossed away by you and me. The Supreme Court is, by definition, the official interpreter of the Constitution. Therefore, any decision the Court makes (unless reversed, modified, or made obsolete by later decisions) is constitutional. This does not mean that there are not good and bad interpretations. You or I might say that this decision is a bad interpretation of the Constitution — but it nonetheless is constitutional and therefore the legally binding law of the land. Moreover, what makes it a good or bad interpretation, I would argue, is not its correspondence to some kind of ideal or abstract text that stands infallibly perfect somewhere in a timeless realm.

    Nor is its goodness or badness found in the intentions of the Founder (if intentionality is the obvious key to understanding, then there’s an obvious weakness in the document, for it makes no such claim). In this respect, your analogy is a false one:

    For example, if I delegate legal authority to some to act on my behalf, and draft a document designed to prevent the individual from exceeding his authority, and then he interprets that document to mean he can do whatever he wants on my behalf, then his interpretation is wrong.

    The problem with this, Jeff, is that the Founders did not draft the Constitution to be enacted on THEIR behalf. It is not about them. Now, there is an authority that should not be surpassed, but that authority does not lie with the Founders and their intentions! It lies with the document itself, as it is interpreted with its own built-in mechanism of interpretation, via the Judicial Branch. Unlike your hypothetical document, Jeff, the Constitution provides for how it is to be interpreted.

  16. Now, none of this means that Supreme Court precedence cannot change. It can and does all the time. But these changes, I would argue, cannot be guided SOLELY on the pure absolute text (which is meaningless without any context) and the intentions of its Founders. Like I said, it is the Supreme Court who decides when to overturn precedence — OR the people can strike down certain possible interpretations of the Court through an amendment.

    But none of this means that the Court could make what you or I could consider a bad decision. But, I would argue, it is still constitutional. Think of it in terms of what you or I would consider a bad amendment — suppose an amendment that legalizes same-sex marriage. I think we would agree that this is a bad amendment, but its badness does not negate its constitutionality. Now, certainly, Court precedence is more penetrable than an amendment — but only by the Court. Or through a negating amendment, in which case it would be equally penetrable as an amendment that negates a previous amendment.

  17. So, you have argued that “Common Welfare” is interpreted too broadly, but you have not talked about how it is the Supreme Court that has allowed for this broad definition. One notable decision is the 1937 rulings on Social Security. These rulings actually brought the justices to competing views of the founders regarding the broadness or narrowness of common welfare (Hamilton vs. Madison, respectively). These and other New Deal decisions changed the way the Constitution has been seen — if these were arbitrary or bad interpretations, they nonetheless were lawful ones, by definition. If we wish to change this interpretation, then we need to have a Court who will reverse precedence or approve an amendment that will indisputably rule out this broader interpretation.

    But — and this is my main point — if we judge that this interpretation is a bad one, I would argue that what is behind this judgment is not simply an exercise in correct interpretation. Rather, it is a moral judgment — no different in nature, I would argue, than the moral judgments that led to the creation of the Constitution in the first place. In this respect, we continually create the Constitution — and our basis for this continual creation is not the Constitution itself, but our own moral judgments. In this way, the U.S. could be a fully constitutional, yet truly evil, country that is on the verge of destruction.

    Thus, the answer, I would argue, is not an endless fight about “what the Constitution really means,” but a call of repentance and a turn to God. Which must, of necessity, be done outside of the public sphere (at least right now). By having a society that is near to the Lord, we will continually create the Constitution in good ways and avoid the bad, and this continual creation will be manifest by the leaders we elect and the amendments we approve or disapprove.

    We are the people today — Hamilton, Jefferson, Madison, etc. are dead.

  18. I never said the Constitution was acting on behalf of the Founding Fathers… that is a silly idea indeed. The federal government is acting on behalf of the State governments. They are the ones that ratified the Constitution, which is essentially a contract between the state governments and the federal government, in which the state governments surrender certain enumerated powers to be under the jurisdiction of the federal government. The two parties still remain, and so does the contract. There has been no official measure regarding a change of contract. As far as I know, the State governments still retain all but the enumerated powers, and the federal government has usurped powers from the states. Sure, we as a people haven’t complained, and thus we may be responsible. But that doesn’t make it Constitutional, nor does it make it right.

    And I do believe that a Supreme Court decision can be unconstitutional. I don’t think that the Supreme Court has the power to unilaterally amend the Constitution by judicial fiat. I do not see it as another mechanism of change as you do.

  19. “They are the ones that ratified the Constitution”

    “They” meaning the State governments, not the Founders. The Founders wrote the Constitution, but the contract is between the respective governments.

  20. And I do believe that a Supreme Court decision can be unconstitutional. I don’t think that the Supreme Court has the power to unilaterally amend the Constitution by judicial fiat. I do not see it as another mechanism of change as you do.

    OK, I’ll leave it for you to flesh out how a Supreme Court decision can be unconstitutional.

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