Brief Thoughts on Constitutionalism

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.