Friday, July 22, 2011

Yes, Time Magazine, The Constitution Does Still Matter.

Okay, so being the masochist that I am, I decided to read the Time Magazine article on the relevance of the U.S. Constitution entitled "Does It Still Matter?" written by Richard Stengel (July 4th 2011 issue). The opening salvo tries to paint the Constitution as a document written by cavemen who could not possibly imagine the events of the current day, the technology, the social issues........the length of a skirt (?). It's funny, when I read the Constitution none of that seems relevant to what our Founders were attempting, which was to create a governmental system that would serve a country perfectly well as long as they adhered to it's basic premises. I am quite certain the length of a woman's skirt was never an least not a constitutional one. Our Founders were devising a structure for a central government and attempting to limit it's powers. That's all.....nothing more, nothing less. How people travel across the country or how fast a weapon of war gets to it's target are irrelevant to the Constitution.

Throughout this piece there is one theme that stuck out for me and that is the continual use of reinterpretation and other forms of constitutional tomfoolery to achieve some political or social end which our Founders never intended and in many cases railed against in their writings of the time. In the end the article came to the conclusion that the Constitution is alive and well and that any debate is healthy....... While I might agree that debate is healthy, I would disagree that the Constitution is alive and well. It might be, for those who would twist it's words to mean anything they wish. It might also be, in this present environment where reinterpretation seems to be an accepted practice. But for those of us who watch time and again as more of the teeth are knocked out of the Constitution, this fighter is in trouble and we need to step in and help.

Reinterpretation is what I call what is being done to the Constitution. My reasoning is this, the Constitution already has a well documented meaning and a thorough explanation. Our Founders left fantastic records of exactly what it was they were trying to accomplish as well as the meaning of specific sections of the document. And yes, even during the drafting there was debate, but agreements were reached and the Constitution was completed, with a particular meaning.......... And I would consider that meaning to be "cast in stone" much Mr. Stengel's dismay.

The vast majority of the article was dedicated to reinterpretations and their justifications as well as the concept that the Constitution is a "living document" that is subject to reinterpretation by virtually anyone who reads it and for whatever purpose the government or any political party chooses and that our Founders actually wanted it this way!! A notion that could not be farther from the wishes of our Founders! Thomas Jefferson's famous quote in a letter to Wilson Carey said this; "When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it found necessary, that to assume it by a construction that would make the powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." Is that not exactly what reinterpretation does? Of course it is, and that is precisely why some wish to use it. It is in effect a way of amending the Constitution without having to go through the whole difficult and laborious process. Well, the process was made difficult a laborious for a reason!! The Founders did not want the Constitution altered on a whim! In this one quote Jefferson puts to rest Mr. Stengel's notion that our Founders wanted our Constitution to be interpreted, and his false claim that our Founders also wanted a very strong central government.

Some of the mischief that goes on with our Constitution is not just a result of reinterpretation, but some comes from wordsmithing. Take for instance the word "regulate" in the "commerce clause". The definition that seems to fit best by the description in the Federalist Papers is this; "to cause something to occur at predictable intervals or in a regular way.", this definition gives the commerce clause it's intended meaning. Our Founders wanted free trade between States with no taxes, imposts or duties, they did this because they realized all too well the use of the tax code as a weapon. They wanted goods to flow freely from one State to another and from one State through another. This would make trade predictable, it would flow in a regular way. The new meaning (to control) gives the government unbridled authority to control trade between States. Goods that leave one State headed for another now fall under Federal "control" and now even goods that don't leave a State are potentially subject to governmental interference because they too are said to effect commerce! In this one reinterpretation the dangers become crystal clear. Something the Federal government was suppose to make flow regularly and smoothly now does anything but. And it is this incredible federal control that presently impedes what should be a thriving free market economy. This is the very opposite of what was intended by our Founders.

Another way our Constitution is attacked by it's opponents is by simply making stuff up and hoping it sticks. A classic example of "making stuff up" offered up by Mr. Stengel comes from the age old mutilation of the Three Fifths Clause. People with agendas don't just reinterpret this clause, they actually make stuff up. Their arguments simply have no logical origin within the clause itself. He literally claims that our Constitution and our Founders said that "a black person was three-fifths of a human being"......The Three Fifths Clause reads as follows; "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all others." There is no mention of race and certainly no implication that those who fall under the heading of "all others" are sub-human.......none whatsoever. But if you read it in context it does not fit the narrative which is designed to inflame segments of the population and bias people unfamiliar with this clause against the Constitution. This narrative has created a segment of the population whom now believe the U.S. Constitution to be a racist document. When reality speaks a different message. The three-fifths clause does two things, first it acknowledges that slaves or "all others" are not property by giving them representation in Congress. Secondly, by not giving "all others" full representation it ensures that slave States could not achieve superior representation simply by increasing slave population. This provision in and of itself ensured the end of slavery. Emancipated slave Frederick Douglass came to realize the true meaning of the three-fifths clause by eliminating the wordsmithing and reinterpretation and reading the document as written. He was a huge proponent of reading the Constitution as a stand alone document, reading the words, not interpreting it. This is inevitably how he came to his revelation that the U.S. Constitution was in fact an anti-slavery document.

I agree with Frederick Douglass, the Constitution should be read as a stand alone document, no intent should be necessary. However in defense of the Constitution I will always fall back on intent, not the sometimes ugly debates, but the intent of the document as written. Intent is incredibly important, especially when opponents of the Constitution are doing whatever magic tricks they can to get us be forget the original intent, by redefining words or create new meaning where none exist. The words of our Founders were not meant to be altered by slight of hand, they were meant to be understood in context. It is not a living document that changes with the generations or by anyone who reads it. Of what use is a written Constitution if the words mean whatever anyone wishes them to mean?

As an actual substantive article about the relevance of the Constitution, the piece fell way short. As a way to further the concept of reinterpretation as perhaps a viable and intended use of the Constitution and perpetuate some existing reinterpretations, he may have succeeded. If his motivations were even remotely in doubt this quote from the article should confirm it for you- " We cannot let the Constitution become an obstacle to a future with a sensible health care system, a globalized economy, an evolving sense of civil an political rights." An "obstacle" a politically motivated agenda..... This is exactly how it is seen by some. With magazines like Time printing this hogwash it is my firm belief that we as individuals must combat it by talking to our neighbors, getting educated and getting involved in the defense of the Constitution. It is crucial to our Country's future!!

Now, I could have gone on for many more paragraphs and bored you to tears refuting Mr. Stengel's every assertion, but I chose instead to address the overall theme of constitutional mischief. I would much rather see you spend your remaining free time reading the Constitution, or the Federalist Papers, or the 5000 Year Leap.....or something along those lines instead!! It's just a suggestion!! ;-)

Thanks for taking the time to read this!!
William A. Heering

1 comment:

  1. This great article should be used for educational purposes.
    To echo William, believing in “living constitution” means to interpret the Constitution in light of contemporary social standards, in order to align it with someone's political and social views and to apply the Law selectively. One of the most favorite subjects of liberal attacks is the Second Amendment – “The right of the people to keep and bear Arms”. The Second Amendment is about the “individual right”, and remains as current, as it was on December 15, 1791, when the first ten Amendments (the Bill of Rights) were ratified. “Every citizen has a right to bear arms in defense of himself and the state”, says the Constitution of Connecticut signed as the Supreme Law of CT State on October 12th, 1818 (Article First, section 17). The Constitutional right of the people to keep and bear Arms has been preserved throughout the history of the United States. After the Civil War, the Southern states enacted the slave codes which prohibited former slaves from owning and carrying guns, what made the freedmen defenseless against KKK. The Freedmen's Bureau Act of 1866 protected the freedmen with providing them the constitutional right to bear arms. In 1941, when the world was witnessing totalitarian regimes destroying liberties and killing people, Congress passed the Property Requisition Act. This act allowed the federal government to take personal property (for fair compensation), with exception “of any firearms possessed by any individual for his personal protection or sport”. In 1986 Congress passed the Firearms Owners’ Protection Act reaffirming the right to keep and bear arms. In June 2008, the Supreme Court made a decision in the case District of Columbia v. Heller, ruling that “the Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia”.
    The Gallup poll conducted on October 1-4, 2009, indicated that only 28% of Americans favor a ban on handgun possession except by police and other authorized personnel. This was the lowest percentage recorded since 1959.
    The Constitutional right to keep and bear Arms has been viewed by majority of the American people, and historically by the American government, as protection against racial intolerance, against criminals and against authoritarian nations. This right can not and should not be taken away by proponents of “living constitution”!