What is the Constitution?

The rise of the Tea Party movement, along with the explosive growth in Federal debt that buoyed it, has occasioned some debate on what the U.S. Constitution is and what it means. House Republicans will their session by reading the document aloud. In reply, E.J. Dionne reminds us forcefully that the Founding Fathers were just guys.

They were as enmeshed in historical circumstances as we are, they had no special divine insight into politics, and their thinking was certainly not free of passion, ignorance, and foolishness."

An examination of the Constitution that views it as something other than the books of Genesis or Leviticus would be good for the country.

I doubt that anyone wants the document to be added to the King James Bible, but, straw men aside, he has a point. The Founders may have had a special insight into politics, but it surely wasn't divine. The Constitution is an act of very human beings.

The Constitution of the United States is really three things. First, it is a statement of the source of all legitimate authority. "We the People" have the natural authority to "institute new Government", in the words of the Declaration,

laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

Second, the Constitution is an arrangement of offices, an organization of powers. The power that always resides in the people is refracted into distinct institutions. One ray of power produces the state governments. The other, the federal government. The latter is refracted again into three distinct branches, and the legislative branch into two houses. The Constitution is not a mere blueprint. It is the living, breathing President and the legislators and the judges, it's the governors and the state legislators and state courts, and it is the voters.

Third, the Constitution is a set of limits on the powers of government. Congress cannot grant titles of nobility. The state governments cannot make treaties.

The Constitution is not particularly hard to understand, and certainly not because it was written more than a hundred years ago. The arrangement of powers remains as clear today as it was when the ink was still wet on the parchment. Controversies over its interpretation arise because the language is, necessarily, abstract. What exactly is Congress forbidden to do when it is forbidden to abridge freedom of speech? What powers are "necessary and proper" and what unnecessary and improper when Congress is doing what the Constitution explicitly authorizes it to do?

There are only two answers to that question, and both are provided by the scheme above. The constitutional limitations on the powers of government mean what the various offices of government, exercising their proper authority and including the electorate, decide that they mean. That is the most practical answer and in all cases so far it has been decisive. We may be nervous about intrusting a government, however divided, to decide what its limits are. However, in the absence of angelic arbitrators, it will have to do. The Constitution is what the Constitution does.

The second answer is that the people retain the right to alter or abolish the government if it ceases to serve the ends for which it was established. This may seem idealistic, but it is not. What happened to the Soviet Union? When support for the government collapsed, the tanks refused to move. Can one imagine the U.S. military moving against the U.S. people? I cannot, but if it came to that, debates over the meaning of the necessary and proper clause would have long since become meaningless.

Keeping the Republic means keeping the government within the bounds set by the Constitution. That is the responsibility of all Americans. That responsibility is the foundation that the Founding Fathers established.

Comments

[larry kurtz]

From the goddess: http://www.npr.org/templates/story/story.php?storyId=129702855

"Scalia’s view is much more black and white. “The Constitution that I interpret and apply is not living, but dead,” he famously said. Scalia contends that the Constitution is not flexible and its meaning cannot change over time. To allow the Constitution's meaning to morph over time, he contends, just allows judges to say it means whatever they want it to say.

Not so, Breyer says.

“People think we decide things politically,” Breyer says, “or that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer. I don't think any of those things are true.”"

"One of George Washington’s most important and far-reaching decisions made as president revolved around the question of whether he would sign into law a bill establishing a national bank. Alexander Hamilton, his brilliant secretary of the treasury, argued for such an institution and justified his action by seizing on Article I, Section 8, of the Constitution, which endowed Congress with all powers “necessary and proper” to perform tasks assigned to it in the national charter."

http://www.amazon.com/Peter-R.-Henriques/e/B001JSAIWM/ref=ntt_athr_dp_pel_1

[Jimi]

That what is so scary about the current set of Democrats and Obama.

They believe in "Positive Rights." The constitution is specifically designed as a set of "Negative Rights"

Obama and the Left believe that the constitution doesn't go far enough, isn't specific enough, and outdated. They beleive that the Federal Government should be allowed to impose it's will on the people to shape culture all in the name of what's best for everybody.

The constitution is the exactly opposite of that thinking, where people are to impose their will on the federal government, to maintain a Republic where power starts with the people and state governments. Of course the left always tries to pretend that the Tenth Amendment doesn't exist!

[Donald Pay]

We never see conservatives standing up for the Tenth Amendment when it matters.

[Jimi]

Donald,

Example?

Because I can give you two examples off the top of my head where the Democrats attitude toward the 10th Amendment is questionable.

#1.) SB1070 in Arizona

#2.) Health Care Reform

[Bill Fleming]

KB, excellent overview. I tried to find something to argue with you about, but couldn't. Thanks for the concise primer. My hope is that we can all at least agree with what you have laid out so well here.

[Donald Pay]

It's even codified in state law. This law prevents the state from having its own standards. Essentially the state has given the federal government total control.

1-40-4.1. Limitation on stringency of certain rules. No rule that has been promulgated pursuant to Title 34A, 45, 46, or 46A may be more stringent than any corresponding federal law, rule, or regulation governing an essentially similar subject or issue.

[KB]

Thanks Bill. You might not guess it, but your comment was very gratifying.

Larry: Scalia is a better reader of the document than Breyer. We need such principles as the protection for free speech to be flexible enough to adapt to new circumstances. Having enjoyed a lot of Scalia's opinions, I can assure you that he does not disagree with this. But there has to be something enduring if it is to flex. Scalia thinks that the free speech clause is, above all, intended to protect political speech and to prevent the use of government powers to shut down dissent. Do we want to allow that principle to grow into something else?

Donald: Arizona did not introduce its own standards. It presumed only to enforce Federal Law in the absence of Federal action. I don't think the Tenth Amendment helps much here, for reasons I have stated on this blog.