These days, it is uncharacteristically hard to avoid hearing or reading people opine about the Constitution. As someone who spends almost the first half of every introductory American government class discussing that document, I agree with Charles Krauthammer in welcoming this development, however briefly it holds our attention.
Time‘s Alex Altman, who admits that there are many people smarter than he is (an admirable modesty that seems appropriate), offers this observation: “[T]he notion that our governing document should never evolve has always struck me as mildly insane.” This line comes at the end of a largely snarky commentary, full of interesting links for those who wish to pursue them. His assumption seems to be that someone who respects the Constitution ought never to wish to see it amended. Indeed, he cites Thomas Jefferson to the effect that “[a]s that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” To be sure. But Jefferson’s principal mode of adapting the Constitution, as that of the Framers who (unlike him) were actually present in Philadelphia, was to amend it. If something doesn’t work, replace it (by the appropriate procedure) with something that does. If something arises that seems beyond the scope of the capacious (but nonetheless limited) powers of the federal government, add a new provision (again by the appropriate procedure).
Altman also cites Garrett Epps, who seems to think that the number of words devoted to delineating Congress’ power in Article I is almost dispositive of the question. With that many words, of course, Congress must have lots and lots of power. Au contraire, it takes only a few words to say that Congress can do whatever it wants, and many to articulate as precisely as prudence permits the arenas in which Congress is to be active.
I expect that we’ll hear lots from some folks about the necessary and proper and general welfare clauses. The former is certainly necessary to enable the action of other branches of government, if indeed we are to have a government of laws. But the responsibilities and powers of those branches are also delineated by the Constitution. And if words about general welfare were essentially a warrant for the federal government to do whatever it, in effect, pleases, then most of the rest of the document would seem to be unnecessary.
Since we’re in a constitutional moment, let me end by citing a letter written by James Madison to Thomas Jefferson about the proposed Bill of Rights:
My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration.
The emphasis is mine. Madison, instrumental in both the drafting of the Constitution and of the Bill of the Rights, here says–as clearly as can be–that Article I’s enumeration of powers is meant to be a limitation.
January 7th, 2011 | 12:18 pm
This is very good stuff, but I can give you even better evidence. In Federalist 41, Maidson responded to early worries that the “general welfare” clause in Article I could open the door to endless government intrusion:
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
In short, Madison says that the phrase is obviously a rhetorical label which is clearly defined–with limited, enumerated applications–following it in the Constitution.
http://www.constitution.org/fed/federa41.htm
January 7th, 2011 | 3:47 pm
I keep berating myself for thinking: liberals have more a vague sense of tribal fairness than any thought-out philosophy. It certainly doesn’t help listening and discourse for me to go into discussions with that attitude.
Then a once-prestigious magazine runs an essay by one Alex Adams stating exactly that, however obscured by his good vocabulary, and I wonder what an honest disputant does in the face of this. It does no good to shout “Read the material! Think for 20 seconds about what your opponents are really saying, not what your own circle prefers to imagine!”
But no other response is coming to me at present.
January 7th, 2011 | 5:54 pm
That there has been provided a method [amendment] by which to modify the written Constitution is to the elitist mind but a momentary distraction. The process takes “too much” time to accomplish.
Rather than maturely investing time and energy into that method, they seem to prefer to mimic adolescents by screaming, yelling and holding their collective breath[es] until a few insecure adults – the judiciary? – allow them to have their own way.
January 8th, 2011 | 10:21 am
Although I think it’s unfair to label Alexander Hamilton as the father of big government, his doctrine (and John Marshall’s) of implied powers did open the door for a somewhat elastic interpretation of the Constitution.
January 10th, 2011 | 5:08 pm
The truth is that the advocates of the “living Constitution” are not even honest and consistent about their supposed doctrine. Most often they invoke the unwritten “living Constitution” as overriding the written “dead Constitution” in order to invalidate the enactments of Congress and State legislatures. If the “living Constitution” were supposed to demonstrate its state of life, in response to the evolving understandings of humanity over time, it would necessarily accept the democratic expression of the “evolved” will of the people through their elected lawmakers. But that is not the case. Instead, the courts who adopt the doctrine of the “living Constitution” claim to hear the Constitution telling the courts that the evolving consciousness of mankind opposes the expression of the will of humanity by humanity’s elected representatives!
In the Proposition 8 challenge now in the 9th Circuit Court of Appeals, the argument is reaching its absurd climax. A referendum supported by a clear majority of voters is said to be contrary to the “evolved” consciousness of humanity, and therefore invalid, when that evolved consciousness is a “still small voice” that only certain enlightened persons atre able to perceive. The plaintiffs are asking the Federal courts to adopt the view that the express will of the people is not the sure guide to the conscience of mankind, but that the opinion of a few unaccountable lawyers IS such a guide. This is nothing short of a revolution of oligarchy against democracy. If the courts do not stomp out this judicial coup, they will have completely cut themselves off from any authority derived from the sovereign will of the people, and will be relying solely on tradition to hold themselves and their edicts in power–a position exactly equivalent to the doctrine of the Divine Right of Kings. Those among the citizens familiar with the fundamental doctrine of the Declaration of Independence will recognize that such usurpation invites the people to reform the government so it is once again tresponsive to the will of the people. Any attempt by the courts to declare that homosexual marriage is a constitutional right enforceable against every state will inspire massive civil disobedience, led nby state governors and members of Congress, which will demonstrate the moral bankruptcy of the courts as the people realize that they owe no respect to the decisions of courts that do not respect the people and their solumn enactments as sovereign.
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