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.

Good Reading

1.  Walter Williams – Parting Company

I believe we are nearing a point where there are enough irreconcilable differences between those Americans who want to control other Americans and those Americans who want to be left alone that separation is the only peaceable alternative.

I still hold out some hope.  I think a lot of Americans who want to control other Americans simply don’t realize that’s what they are doing.  They think that what they’re doing is for a greater good.  I hope we can help them realize that not controlling others is a fundamental principle of life, it’s what the country was founded upon and produces better results — as David Boaz points out below.

2. John Stossel – What Am I?

Stossel explains a bit about what it means to be libertarian.  He answers the common question of ‘what about the poor and the weak’ with responses from people who appear on this show.

David Boaz, executive vice president of the Cato Institute, took the discussion to a deeper level.

Instead of asking, ‘What should we do about people who are poor in a rich country?’ The first question is, ‘Why is this a rich country?’ …

“Five hundred years ago, there weren’t rich countries in the world. There are rich countries now because part of the world is following basically libertarian rules: private property, free markets, individualism.”

Boaz makes an important distinction between equality and absolute living standards.

“The most important way that people get out of poverty is economic growth that free markets allow. The second-most important way — maybe it’s the first — is family. There are lots of income transfers within families. Third would be self-help and mutual-aid organizations. This was very big before the rise of the welfare state.”

This is an important but unappreciated point: Before the New Deal, people of modest means banded together to help themselves. These organizations were crowded out when government co-opted their insurance functions, which included inexpensive medical care.

Boaz indicts the welfare state for the untold harm it’s done in the name of the poor.

“What we find is a system that traps people into dependency. … You should be asking advocates of that system, ‘Why don’t you care about the poor?'”

I agree. It appears that when government sets out to solve a problem, not only does it violate our freedom, it also accomplishes the opposite of what it set out to do.

Excellent response when someone asks what about the poor?  How did the country get rich in the first place?  Have the solutions put in place to help the poor helped or made things worse?  In fact, it was the answer to these very questions that led me away from my more liberal roots.

3. Thomas Sowell – Race and Politics: Part II

A major factor in the housing boom and bust that created the present economic predicament was massive government intervention in the housing market, supposedly to correct discrimination in mortgage lending. How did they know that there was discrimination? Because blacks were turned down for mortgage loans at a higher rate than whites.

It so happens that whites were turned down for mortgage loans at a higher rate than Asian Americans, but that fact seldom made it into the newspaper headlines or the political rhetoric.

If only more people would ask obvious questions about data and not simply take a newspaper or study headline at face value.  Sowell is good reading for anyone with analyst in their job title.  I believe reading Sowell over the years has helped develop my ability to poke holes in interpretations of data.

I think knowing the real reasons behind the data is more worthwhile than interpreting data to fit my mental model.  I’m prone to my own biases, however, I am also more open to understanding alternative interpretations and why those may or may not be valid.

What do I have to lose?

Now that I think about it, that’s a great question for many people who are cemented into their mental models.  What do they have to lose?  If more people were more open to alternative explanations for why things are the way they are, perhaps we wouldn’t have such a divide.