{"id":401555,"date":"2013-03-30T13:02:15","date_gmt":"2013-03-30T19:02:15","guid":{"rendered":"http:\/\/coloradoconfluence.com\/?p=401555"},"modified":"2013-09-30T21:27:29","modified_gmt":"2013-10-01T03:27:29","slug":"will-the-real-constitution-please-stand-up","status":"publish","type":"post","link":"https:\/\/coloradoconfluence.com\/?p=401555","title":{"rendered":"Will The Real Constitution Please Stand Up?"},"content":{"rendered":"

Click here to learn about my mind-bending epic mythological novel A Conspiracy of Wizards<\/em>!!!<\/strong><\/a><\/span><\/p>\n

The following is a response to a Facebook commenter who insisted that legislators are no longer obeying the dictates of the Constitution:<\/p>\n

First, we have to start with a clearer understanding of the real nature and purpose of the US Constitution.<\/p>\n

Despite right-wing claims to the contrary, it\u2019s purpose was not primarily \u201cto limit the federal government,\u201d 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. \u201cThe Federalist Papers,\u201d 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.<\/p>\n

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\u2019s 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\u2019t 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 \u201cthe intention of the founding fathers\u201d was is a convenient fiction and not very helpful.<\/p>\n

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.<\/p>\n

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 \u201cdue process,\u201d 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.<\/p>\n

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 (\u201celectoral,\u201d 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 \u201ctyranny\u201d that is an affront to our Constitution. It\u2019s one of many ideological absurdities.<\/p>\n

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 \u2013and frequently highly stretched- interpretation. In other words, without a procedural anchor for interpretation, without a \u201clast word\u201d (short of the public\u2019s \u201clast word\u201d 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<\/sup> Century, managed to institute the procedural anchor of \u201cjudicial review,\u201d 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 \u201cunambiguous\u201d Constitution, at least in the functional sense.<\/p>\n

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\u2019t 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\u00a0faithful application of legal analysis to questions of law,\u00a0and a need to be vigilant against that.)<\/p>\n

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.<\/p>\n

Click here to buy my e-book A Conspiracy of Wizards<\/em> for just $2.99!!!<\/strong><\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_mi_skip_tracking":false},"categories":[33,4],"tags":[31667,322,31670,149,31665,31666,31669,31668,31671,9700],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=\/wp\/v2\/posts\/401555"}],"collection":[{"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=401555"}],"version-history":[{"count":10,"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=\/wp\/v2\/posts\/401555\/revisions"}],"predecessor-version":[{"id":404761,"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=\/wp\/v2\/posts\/401555\/revisions\/404761"}],"wp:attachment":[{"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=401555"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=401555"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/coloradoconfluence.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=401555"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}