Friday, August 28, 2009

The US Constitution: Does It Matter?

We find ourselves in an era of unprecedented expansion of Government power. Not that it hasn't been going on for a long time, but the last several months have alarmed even some who generally are comfortable with pervasive Government in the name of "the common good."

Many, including this correspondent, have lately increased their study of the American founding and the principles at its core, and are sorely concerned that we are losing our "great experiment." And it is happening at such a frenetic pace that keeping up with it and responding seems virtually impossible for those of us at the grass roots level. We despair that the damage being done is irreversible, and that the outcome is unavoidable.

Our current President is on the record saying that he views the Constitution as a constraint on Government action, as embodying primarily "negative rights." It's clear he sees it as an impediment to his agenda. He is an Ivy educated lawyer, and a former "professor" of Constitutional Law. That he could hold such a view with his background is frightening and goes to the very heart of why all civilizations eventually fall.

With all due respect, Mr. President, that is exactly why we have a Constitution: to establish and constrain a system of governance. As someone said, laws constrain people, constitutions constrain government. Laws and government derive their moral authority from the Constitution; if we hold the latter to be irrelevant and malleable, then the former have no foundation and are without meaning.

When you come right down to it, the Constitution is the only tangible framework we have to define our system of Government. Without it, there is no America and no foundation for everything we consider unique to our way of life.

If it is not held sacred and inviolate, than we have a free-for-all subject to public whims. All elected and appointed officials take an oath to preserve, protect, and defend this Constitution, yet it is obvious to all but the most gullible that their oaths have lost their meaning, and that it is a rare official who understands the document in the most profound sense.

The very essence of the Constitution is that we established a limited government with enumerated powers. That is, the Government has only those powers specifically granted to it by the Constitution, and nothing more. Adhering to such a design requires two things: officials who take their oath and the Constitution seriously, and a "watchdog" process that enforces both.

At this point, we appear to have neither. Our elected representatives, always intent on doing good and preserving their jobs, have turned the founding principles on their head. They tacitly assume that government has unlimited powers, they ignore the concept of enumeration, and they dare us to stop them from establishing authority they were never intended to have. They compel us to pay for their creations by force of law. Doing "good" and working in the "helping field" becomes the end all be all justification for everything.

On the judicial front, "strict construction" of the Constitution is derided as a mean-spirited and archaic point of view. The enlightened claim the Constitution is a living document, that it embodies various penumbras, and that our understanding of it should be informed by decisions in other countries.

They argue that we need "moderate" Justices on the Supreme Court, rather than hide-bound ones who dig their heels in when pushed to ignore Constitutional limits.

Justice Antonin Scalia addressed this when he said:

[Y]ou hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one.

In recent months, the concept of an ethnic minority woman reaching wiser decisions because of the "richness of her experience" has been front and center in the debate over the relevance of our Constitution in the modern era. This is a perfect example of how we allow "nuance" and other subjective factors to intrude on an objective subject.

"Excuse me professor; I have a question."

"Yes, Poppy, what is it?"

"Well, isn't the Constitution that the current fashion finds restrictive, irrelevant, dated, living, and malleable the same one that defines and grants the powers of office that these individuals occupy? Don't our President, our Senators, our Representatives, and Justices have their power and authority only by virtue of the same Document that they wish to shape to their own desires?"

"Yes, Poppy, I suppose it is. What is your point?"

"It's very simple, Professor. If we aren't obligated to hold sacred and inviolate the framework embodied in our Constitution, why should we respect and honor their offices, cede them authority over us, and feel compelled to obey their laws and comply with their policies?"

"When you put it that way, Poppy, I don't know how to answer."

"Well, Professor, you could always say, as our politicians are wont to do, 'that's not the issue.' Even though it is."

"And then you could say that you'll get back to me on that after you've had a chance to let your staff look at it."

"You're a regular smart-ass aren't you Poppy? Class dismissed."

1 comment:

  1. Read Madison's notes on the Constitutional Convention and in particular the comments by Alexander Hamilton. It was he who opinied that those who waited would benefit from the infighting of the left and right and in the end take over and ignore the restraints supposedly built into the document.

    Remember it was Hamilton who through his power over members of the Congress got the bill to establish a national bank passed and then convinced Washington it was within the Constitution. It was later used by John Marshall in his famous opinion in Madison vs. Marbury to talk out of both sides of his mouth about the limits of the powers of Congress but at the same time the implied powers contained therein.

    We can thank Aaron Burr for disposing of Hamilton before he could gain the necessary power to totally negate the limits of the Constitution. It was not until Franklin Roosevelt, who packed the court with his own appointees that the Hamiltonian predictions finally came to pass with the Fair Labor Standardsact. This put an end to inability of government to interfere in the contracts between individuals that is specifically prohibited by the original Constitution.

    Now that the government is free to pass whatever legislation is pleases and to interfere with the agreements we can make with each other, the Constitution as a prohibitive document is essentially null and void.

    As Jefferson has said, only a revolution will suffice to correct this condition and according to the Constitution itself, it is the duty and obligation of the people to do so.

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