Click here to learn about my mind-bending epic mythological novel A Conspiracy of Wizards!!!

The following is a response to a Facebook commenter who insisted that legislators are no longer obeying the dictates of the Constitution:

First, we have to start with a clearer understanding of the real nature and purpose of the US Constitution.

Despite right-wing claims to the contrary, it’s purpose was not primarily “to limit the federal government,” but rather to define and strengthen it. Yes, part of defining it involves limiting it, but the modern notion that that was the primary purpose is, in a sense, the exact opposite of the historical reality. The Constitutional Convention was called due to the inability of the toothless Articles of Confederation to bind the nation together and overcome internal collective action problems. The Constitution was drafted to strengthen the federal government and impose a consolidating federal rule of law that had teeth. “The Federalist Papers,” which are a series of op-ed pieces by Madison, Hamilton, and Jay arguing for ratification of the Constitution, are mostly arguments about why a strong federal government is necessary.

The drafters were not all of like mind, but were in fact sharply divided on multiple issues (slavery being the most famous one). Franklin, for instance (who was the senior statesman of the new nation and second in respect commanded among the Founding Fathers themselves only to Washington), favored very high inheritance and luxury taxes, and a redistribution of private wealth beyond that necessary to maintain oneself and one’s family in modest fashion to the public sector for use in public projects and benefits (not to the poor, a form of public redistribution Franklin didn’t particularly favor). Hamilton and Adams favored a very strong central government, with a national bank and national control of economic and fiscal policy. So the modern reduction of the Constitution, beyond its letter, to one ideological camp’s insistence of what “the intention of the founding fathers” was is a convenient fiction and not very helpful.

The drafters of the Constitution did not generally expect it to survive more than a generation or two, knowing that changing times and circumstances would increasingly challenge its relevance. The fact that it has survived 225 years is a miracle, and should be considered with an awareness of how dramatically challenged and attenuated the foresight of these brilliant but merely historical and mortal individuals really has become.

The Constitution is not a precise document. It is very short and general, intentionally, so that legislators then and in the future would have room within it to operate and respond to circumstances. Many terms are not precisely defined (such as “due process,” for instance); there is wide space for interpretation of many clauses. The jurisprudence of this nation is a function of that ambiguity and that range of possible interpretation.

Ironically, one of the least ambiguous clauses in the Constitution is one that the right is most eager to re-interpret out of existence. Article I, Section 8, clause 1 states, without qualification, that Congress is empowered to tax and spend in the general welfare. This clause clearly means that it is left to our democratic (“electoral,” if you prefer) political processes and not to the Constitution or to foundational law to determine how much and in what ways citizens are taxed (as long as it is uniform) or how much or in what ways government spends in service to the general welfare. And yet the right constantly cites taxing-and-spending as their evidence of a “tyranny” that is an affront to our Constitution. It’s one of many ideological absurdities.

Because of this ambiguity, the Constitution would have been nothing more than a political football, a Rorschach Test for each partisan or ideologue to imprint their own preference upon, and thus something the meaning of which no one ever agreed on and therefore that each party, once in power, would interpret and implement according to their own preferred –and frequently highly stretched- interpretation. In other words, without a procedural anchor for interpretation, without a “last word” (short of the public’s “last word” to amend it), there could have been no functioning Constitution at all. Thankfully, Chief Justice John Marshall, in Marbury v. Madison, at the beginning of the 19th Century, managed to institute the procedural anchor of “judicial review,” which empowered the courts, and, as a last resort, The Supreme Court, with the final authority in Constitutional interpretation. By that mechanism, we have an “unambiguous” Constitution, at least in the functional sense.

And that brings us to your error. You think that the state and federal legislatures no longer are operating within the constraints of the Constitution because your own interpretation, ideologically tinged and at times grossly distorted, does not conform to current practices. But you don’t have the final word on legal and Constitutional interpretation; the Court does. And while I disagree with many of its holdings, they are usually if not always legally defensible, and usually if not always very thoroughly reasoned and articulated. (I might endorse one more layer of oversight, in which the academy of constitutional scholars has some ability to call the Supreme Court to task on any particular holding, if it appears to be an egregiously indefensible holding, due to the possibility of a completely politicized Court, no longer committed to the faithful application of legal analysis to questions of law, and a need to be vigilant against that.)

What you prefer, that the Constitution always be interpreted as you see fit, is not a defense of our Constitution, but rather a frontal assault on it, because every ideologue of every stripe desires the same thing, though their respective interpretations are in diametrical opposition to one another. A real commitment to our Constitution, and to the rule of law that it forms the anchor of, is to also remain committed to our procedures for giving that Constitution a functional viability, the most crucial of which is judicial review.

Click here to buy my e-book A Conspiracy of Wizards for just $2.99!!!

  • sblecher:

    What you say is absolutely correct. The fact that the Constitution survived with so few amendments is remarkable. The language is general for a few reasons. The Constitution itself is not actual law, but provides guidelines for laws, which is one reason we have judicial review. As best I can determine, the Founding Fathers believed that future generations would be smart enough to interpret the Constitution in such a way as to serve the needs of the US and its people.
    A lot of people have a delusional view of the Constitution, and I don’t think you can do a lot to correct that.
    PS Canada became a Dominion about the time of the Civil War, and they wrote their constitution with the Civil War fresh in their memory. As a result the Canadian constitution gives a greater share of power to the central government.

  • A quick correction, Stephen: The Constitution IS law. It is Constitutional Law, meant to be fleshed out by statutes, which in turn are fleshed out by administrative agency regulations, all of which is then fleshed out in case law. It’s not that the Constitution isn’t binding law, but rather that it is binding law at the highest level of generality. And the two errors popular on the right are: 1) to treat it as more precise and unambiguous than it really is, and 2) to reduce it to the status of a sacred scroll written by divinely inspired scribes.

Leave a Reply

You must be logged in to post a comment.