Tee up the discussion on the Constitution

I don’t agree with E.J. Dionne of the Washington Post on much, but I do agree with this from his column:

We badly need a full-scale debate over what the Constitution is, means and allows – and how Americans have argued about these questions since the beginning of the republic. This provision should be the springboard for a discussion all of us should join.

I came away from my high school civics class with the impression that the Constitution was a living document that could be interpreted by the Supreme Court for the times.  I believe many share that view because I often hear that repeated.

That understanding is not correct.  But, the incorrectness has had good company, including a good number of Supreme Court justices.

There’s two reasons that understanding is incorrect.  First, the idea of the Constitution is to compartmentalize authority in government and to provide checks and balances to prevent the consolidation of power into too few hands — something that motivated the founding of our country.

The legislature has the power to make laws.  The judiciary has the power to determine if something is lawful.  Giving the judiciary the power to interpret laws as they see fit for the times essentially gives the judiciary a power it was specifically intended not to have — to make laws.

If the judiciary can interpret the Constitution like soothsayers interpret Nostradamus prophecies, then there really isn’t much that the judiciary cannot do.  And that isn’t much of a check or balance.

So, you might ask, but the Constitution is a living document designed to change with times, isn’t it?

That brings us to the second reason that the general understanding of the Constitution is incorrect.  It is a living document.  But its life emanates from Article V not judicial interpretation.  Article V is titled Amendment.  The Constitution can be amended at any time.

The Constitution has been amended twenty-seven times.  If we’d like to change the scope of government powers, then we should do it correctly through amendment.

Hopefully this renewed interest in the Constitution will lead to more people unlearning incorrect knowledge about it, just like I have done.  I owe that unlearning primarily to Thomas Sowell and his books, The Vision of the AnointedConflict of Visions and Intellectuals and Society.

Here are a collection of other Constitutional comments from today.  From Roger Pilon in today’s Wall Street Journal:

Thus the first question the new Congress should ask of any proposed law is: Does the Constitution authorize us to pursue this end? If not, that ends the matter. If yes, the second question is: Are the means we employ “necessary and proper,” as constrained by the principles of federalism and the rights retained by the people that are implied by a government of enumerated powers? In essence, the Constitution is no more complicated than that. It was written to be understood by ordinary citizens.

From Don Boudreaux of Cafe Hayek (see the comments section of the linked blog post):

Even the leftist Yale law professor Bruce Ackerman – quite a respected scholar, and justly so – admits that the text of the Constitution, read as it is written and as the framers intended, would get rid of the vast majority of what Uncle Sam has done since the early 1930s. See Ackerman’s fine 1991 book We the People. Ackerman goes on to argue that the Constitution was amended informally (i.e., not via Art. V) by a change in Americans’ understanding of the proper role of government.

Constitutional originalists want the Constitution to be read as closely as possible according to its actual texts; scholars such as Ackerman want the ‘amendments’ created by changes in Americans’ attitudes to be read into the document.

Finally, Charles Rowley on his blog:

The Constitution places a dagger right at the heart of the progressive movement in its efforts to overturn limited government without resort to major constitutional amendments.

I am thankful that we are finally getting to the point where we are going to have this discussion.  This is a much better climate than a year ago when asked about the Constitutionality of the health care legislation, Nancy Pelosi replied, “Are you serious?”  I guess it proves the old saying, sometimes things have to get worse before they get better.

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