Whose Constitution Is It, Anyway?
The Constitution has emerged as a central argument of national debate in the current election cycle.To hear some tell it, the Constitution is the sole possession of the right or of the left. The right is cast as a bible-thumping, gun-toting horde of the unwashed and uneducated. The left have been portrayed as elitist snobs bent on a totalitarian regime to destroy freedom and to subjugate all before their vision of a socialist utopia.
In truth, the caricatures do little except fan the flames and add gasoline. While there are a few scary people on either extreme, there is a lot to be agreed upon in between the extremes. No one argues that the health care system needs no reform. Few think that the borders of our country should be either sealed to keep everyone out, or torn down to allow anyone in with no regard or control (We did say "few", there are some that do support either proposition). Whether you believe that greedy bankers or government regulations forcing banks to make bad loans caused the financial meltdown, no one thinks that we should go back to the regulation framework that allowed the collapse to occur. Whether you agree with former President Bush on Iraq, current President Obama on Afghanistan, or neither and want our troops home, most will agree that Al Qaeda doesn't really like us much, and is trying to kill our citizens - and that is a bad thing. The problem is not that Americans cannot agree on issues, it is that it has become fashionable to yell at each other rather than fix any problems. Perhaps that is because the people out in America do not believe that they are being heard by their elected representatives. Our government, at all levels takes the caricature of society and magnifies and distorts it further. Our politicians spend all of their time posturing, and little doing the people's work.
That does not mean that there is not a sharp divide on the philosophies of the two Parties. There is a deep philosophical difference between liberal and conservative approaches to the various challenges facing the country. The impasse we are at is not due to the philosophies, but in the view that the winning side has the right to trample the losing side and just push through an agenda.
What passes for "debate" are absolutist slogans and commandeering patriotism. The sentiment expressed by GWB in the post 9/11 days that the choices were to be "with us or against us" had the "us" being the entire American people. It was up to those who had not chosen, to decide whether to stand with the American people or not. That sentiment has been degraded and bastardized into our own division as a people. It pits conservative against liberal, Republican against Democrat, and state against state in a zero sum game of winner take all.
George Washington saw the potential of party politics becoming a divisive force in the country. He said that "The common and continual mischiefs of the politics of party are sufficient enough to make it in the interest and the duty of a wise people to discourage and restrain it" (Farewell Address 1796). Adams, Jefferson and Madison shared similar concerns. Adams and Jefferson subsequently fell into the trap of party politics, and it has been that way ever since. Our Founders were after all, mortal and fallible. They understood the limitations of a ruling class, and the potential for "citizen legislators" over time evolving into a ruling class. They understood not only the faults of the British monarch, but also their own faults and vanities as individuals. They crafted, together as a group, a tool with which to allow fallible men the ability to self-governance - the Constitution of the United States.
Both the left and the right have sought to hijack and claim sole ownership of the Constitution. A proponent of any issue can claim sole ownership of the Constitution, but that does not make it so. The Constitution was created to be owned by all American citizens, all of the time. It is the tool by which we decide where we want to go as a country, and it provides us the instructions with how to make the journey.
The basis for the claims of ownership lie in the viewpoint of each side to our founding documents. The right holds to the view that the Constitution is to be literally interpreted, in much the same way as a religious fundamentalist chooses a literal interpretation of his faith's scripture. The left puts forward the view that our founding documents are "living, breathing" documents constantly evolving address the needs of an ever more complex society. Both are flawed absolutist arguments.
The Founders had genuine concerns about the shape that the government of the new country would take, but to say that literal interpretation is the only possible form of ruling on Constitutionality is belied by it's evolution over time. Disregarding Constitutional restrictions for the purpose of advancing a new thought in policy is also a dangerous path to take. In the Constitution, the Founders constructed a federal framework to promote the common interests of the individual states and to provide common defense and benefits among the states. It was and is limited in scope. The original document can be read and understood in an hour or so. We recommend that everyone do it.
The federal government was created in this way because each individual state sought to govern itself in an independent fashion to meet the needs of their individual citizens. Indeed, Amendment 10 to the Constitution specifically states that the duties and powers of the federal government are limited to those spelled out in the Constitution. All issues not specifically addressed in the Constitution are held in reserve for the states to individually regulate or decide. That is by design, and covered repeatedly in the Federalist papers and debates on the Constitution from the convention of 1787.
The Constitution is a set of checks and balances that seeks to carefully weigh the needs of individual liberty against the need for a lawful society to function. For a lawful society to function, one man's liberty should not restrict another's without an clear and over-arching reason. The system for change is clunky and slow. It was done this way deliberately to make sure that the representatives sent to DC needed to have the confidence of those represented before effecting major change.
The Constitution condones neither suicide for the American society, or homicide of the American individual. The Constitution is not a weapon to be used as in countless attacks on the patriotism of opposing factions. The Constitution is the filter with which we examine ideas, adopt the ones that will benefit our society, and discard the ideas that detract from us as a people. This filter serves to take whatever changes a group wishes to make for our country, remove those things deemed contrary to our founding principles (unconstitutional), and then allow the rest to pass through for public debate and action if consensus forms around the proposed ideas.
It is a very fine filter, which is why sometimes the process takes longer than hoped for. It took 75 years, a war and several Constitutional amendments to eliminate slavery. Slavery has always been morally wrong, but the Constitution empowered the American people to decide it's immorality for itself, at great cost. The Constitution allowed our society to self-evolve, and that has provided our people to look with near unanimity that we have made the right choice.
The expansion of civil rights has also slowly evolved since. In conflicts that threatened a second civil war in the 1950s and 1960s, the slowness but steadiness of the process allowed cooler heads to prevail and true societal progress to form in consensus. The argument can be made today that while individual occurrences of racist behavior still exist, systemic racism is not tolerated in the public sector, and is frowned upon in the private sector. Slow but steady progress, and use of our Constitutional filter and the processes committed to writing in it, allows the peaceful evolution of the American society.
We can even look to the constitutional amendment process to see how amendments made in haste for a determined minority (as in the case of prohibition), can be overturned by the will of a large and popular consensus against such a measure. The ultimate power that the Constitution grants is to, in the most practical way possible, obtain the consent of the governed by those who govern. That is a founding principle that seems lost on both parties today.
Common Sense Dictates
It is not the policies of any party that endanger the country. There have been many changes in direction and in ideology of those who have been elected to govern us over the course of our American history. The danger lies in abandoning a very ingenious, if difficult, process of using the filter of the Constitution to assure that what changes are proposed serve the ideals that the country was founded upon, do not abridge the rights "granted by our creator", and have the consent of those governed. While the process may be longer than the zealot would like, it provides the time necessary to convince overwhelming numbers of the citizenry of the merits of any given cause. With that conviction comes action, and with action our country becomes that "more perfect union". We stand with the Constitutional process, and against the fear and intimidation all too common in today's political discourse. It is only common sense.
RLB
Categories: Constitutional Issues, Civic Duty, Partisan Politics
Tags: historical perspective Framers intent
This is a pretty well reasoned out position. I get a little offended by people claiming sole rights to the Constitution. It belongs to all of us, whether you agree with twhat we want to do or not.
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I never thought of the Constitution as a filter for government action, but it makes a lot of sense. It sure would have looked better if the health care reform went through the process. Maybe more people could be accepting of it. There has seemed to be a lot of rushing around from crisis to crisis lately, and not too much thought given to how things should be done. Maybe congress can take a suggestion
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I agree that the left has the right to use the Constitution of the United States. I just don't believe that they have the ability.
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Didn't take long for you to bring us down. Don't quit your day job for stand up. The left does have the ability to use the Constitution. The problem lies in opposition that is blocking action just for the sake of blocking action. "No" might be a political strategy. It is not political leadership.
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I have to agree with madhatr. It seems like those in charge now are just pushing things through and really not listening to the voters. Whether you want the health care reform or not, the way it was passed was shady. I'm worried about the debt being left to our children. I'm not counting on any Social Security when it comes time to retire. With all that's going on are our priorities really supposed to be immigration reform and gays in the military? Maybe plug a hole in the bottom of the Gulf of Mexico? It seems a bigger deal.
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I like to think that I'm pretty middle of the road on most things. I think that Pelosi is a wack job and the whole McCain / Palin thing was a joke. Just not a funny joke. I don't like what's going on in Washington by either side. THEY don't represent ME. They don't represent my priorities or values, and they couldn't trip over a sensible way to deal with issues if tey were pushed. I really don't care much about ideology. I just want what needs to be fixed dealt with. I wish we could throw them all out and start fresh.
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It would just be a nice change if for once everyone fighting over the Constitution would actually do what it says. An instruction book means nothing if you don't want to read it or follow the directions.
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It's not so much that the Constitution isn't being followed. It is. It's pretty well spelled out what is Constitutional and what isn't. Most of the mischief comes from the phrase "to regulate interstate commerce". The Supreme Court has widened the definition of that to include almost everything. It is the basis for all of the drug laws, most of the environmental laws and all of the consumer laws. In a big stretch, it's how they did health care and banking reform. Of course, what the Supreme court gives, the Supreme Court can take away.
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Let's not forget the Senate and House rules. They have nothing to do with the Constitution, but helped speed through all of this questionable legislation. A lot of the rules (filibuster, for one) were created to protect the minority party from what they called "tyranny of the majority". Many of these rules go back to the first Congress. Lately, as a new majority takes power, there has benn a tendency to rewrite the rules to take the minority protections away. Remember passing the health care reform with "reconciliation"? Or the proposed "deem & pass"? There are ways to force things through. It just usually isn't done over the objections of the American people.
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I'm getting awfully tired of the tea party people throwing the constitution in my face all of the time. I am liberal and I believe in what the President is trying to do. It's called saving the country in a really difficult situation. Bush started all of the bailouts, so you can't call that a move towards socialism, otherwise Bush would be a socialist too. Health care reform was passed because we need to deal with it, whether everyone agrees or not. Going back to Bush, not a lot of people were keed on going into Iraq, but we went. A President does what he must, and that's not always popular. If you think you can do a better job, run the next time. If there waqs anything unconstitutional going on here, you can bet the Republicans would be calling for impeachment. Elections have consequences. You guys lost. Now be nice and get out of our way while we try to fix what your guy messed up.
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Didn't you folks used to shriek that "dissent is the noblest form of patriotism". I'm sure that i heard that ad nauseum from Hillary. We disagree and we're planning on voting you guys out. Get used to it.
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This is supposed to be a civilized site and the fangs have been coming out here more and more. If we're trying to make a conscious effort to keep it civil here and having trouble, how in the world will the system ever get fixed so that we can talk about things intelligently and disagree with respect?
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I don't think it's ever been particularly civilized at any time. They were picking on Jefferson banging his slaves 200 years ago. It probably seems worse with the 24/7 news cycle, but I doubt if it is. American politics has always been "in your face". It gets more so when there are serious issues facing us as a people. The only political kumbaya moment that we've had lately is the unity after 9/11 and that lasted about a month. Speaking your mind forcefully is how we do it, and probably why it has survived all of these years.
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I still don't see how the tea party people think that we don't follow the constitution. We take our issues to the people, get elected to majorities, and enact the policies we campaigned on. I think that's how it's supposed to work. We're not storming the capitol with guns and swords. We're electing people to enact law and they do. End of story.
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It's the letter of the law vs the spirit of the law. You can follow the letter of the law all the way down the road to hell. Lots of Presidents do that. They go for what they can legally get away with, or how they can dress something up to get past the Constitution ; even if in the spirit of the law, it shouldn't. Restraint in government is one of the foundations of our system. Just because the federal government CAN do something, that doesn't mean it SHOULD. A lot of the backlash now comes from the voters understanding that, and elected representatives not understanding it. Taking back the country or the Constitution only means that a lot of people feel that our traditions and founding principles are not being honored. We're howling now - you guys did during the Patriot Act and the leadup to Iraq. I guess it's only fun for the lefties if they are dishing out the dissent.
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I'm going to own up to it. I have been a lifelong Democrat, and i am ashamed at a lot of the monkey business going on in Washington. The health care reform law may well be legal, but the process that got it over the finish line was corrupt beyond measure. I supported most of it, but if you have to pay off Senators in your own party to get a yes vote, maybe you haven't done your job well enough for the bill to deserve passage. A good haelth care reform bill would have the support of most Americans. The law that was passed does not. I get that much in even casual conversations with people. It doesn't matter if our ideas are right if we can't convince others that they are. It doesn't do our cause any good to just pass laws over objections. If we do, we shouldn't complain when people look elsewhere for answers.
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OK - here's an idea to throw out there. I don't know how to enforce it, or even how to get anyone to agree to it, but... If we could get our reps to agree that any idea can be introduced into Congress for consideration, no matter how crazy or bad. The idea, once introduced, needs to go through the full Constitutional filter - open debate, open committee and an open up or down vote. No backroom deals or horse trading. No shutting out the opposition. Full disclosure to all media. If the idea survuves, it becomes law. If not, it goes away. I like it.
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It's a great idea - just naive as hell. Keep dreaming though. I'd just settle for having a few grownups in Congress at this point.
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You're right Paul - must be the beer talking. James Madison must be spinning in his grave. His idea was naive... Guess those Founders weren't all that smart. Or maybe we've dumbed it down so much no one can understand it anymore. I wonder if we can get England to take us back again.
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I hate to be the one to get all partisan, but the idea of filtering everything through Constitutional processes is exactly the point of the Tea Party endorsed candidates. When we talk about strong Constitutionalists, we mean people who know the Constitution and who will follow it when making law. We mean people who will not create new functions for the Constitution, but recognizes what's written down. The biggest part of that is, if it isn't spelled out as a federal responsibility, it is a matter for the individual states to decide. The state is what was supposed to be our main government entity. The federal government is constituted for the purpose of giving one voice to our country on international matters and defense. The feds are not supposed to be dictating the speed limit on Main Street, or what's taught in PS #5. State and local government should be doing that.
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The problem when you have with state and local government as the ultimate authority is that what is normal in one state may not be in all the rest. I'm not saying that "whites only" drinking fountains are coming back, but didn't Kansas outlaw teaching evolution a few years ago? I want to know that my kids are going to a school that prepares them to be productive adults. I don't see that happening on a diet of creationism.
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So how's that "No Child Left Behind" working for you. I think my children would be better served by learning how to think, not how to take a test. As for Kansas, if anyone is not satisfied with te public school system there is private school, home schooling or good old parental responsibility to make sure that your kid doesn't grow up to be the village idiot. This might be hard for a liberal to hear, but there is no reason to rule out God creating the universe, and giving us the tool of science to figure out how.
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I'm not sure you can go back to basic Constitution anymore. The government has grown to the point that it reaches into a lot of the areas of our lives that,according to the Constitution, it shouldn't. It's not just drug laws or all of the social engineering. It's basic day today stuff. Here's a great example. Incandescent light bulbs are being phased out in the US. Not everywhere, just the US. They are being replaced by CFLs, which use less energy,but don't light as well. Sylvania, an American company that makes incandescent light bulbs, has transferred the bulk of it's operations over to China, where all CFLs are made. That cost good American jobs.Once the CFLs take over, I can either buy them at greater cost, or drive over the border to Canada to buy regular light bulbs. WTF? That's our federal government.
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The Constitution is the structure of our government. The structure of our government has not changed, so it is being followed. How the different branches conduct themselves within the framework of the Constitution is the rel problem. Even putting aside the traditional "rules" the rule book gets rewritten with every change of majority. The Constitution doesn't speak on this at all. We need to make the rules process more transparent, so that we can see what cheap tricks are available to our legislators.
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It's not so much that the Constitution isn't being used. It is. But the spirit that the Constitution was created in is nowhere to be found. Limited government and generous liberty are being swallowed up by an increasingly demanding government working it's way into every corner of our lives. JD wrote about light bulbs. Can you picture a single Founder legislating what form of light you could use in your own home? No you couldn't. Now think how much more invasive it is when the government keeps you from succeeding so that you won't risk losing welfare or unemployment. Or wants to dictate how you receive medical treatment. It's just gone too far.
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