Opinion: The Constitution’s shades of grey

By Ralph Bates

Over the last few months, there have been groups in the county discussing the Constitution and articles written in the Rappahannock News. Recently, Friends of Liberty sponsored a lecture series that was well-attended at the Library. They articulated a conservative or “originalist” point of view very well. Hopefully, all attendees understood this bias and remain open as learners to legitimate counterarguments.

I would like to offer a differing set of considerations likewise supported by serious constitutional scholars and judges. Recently, the editor of Time magazine, Richard Stengel, suggested that the Constitution has been under threat in the past and could be again today given the polarized nature of our politics – being driven to deep ideological positions, a condition the Constitution’s framers wanted to avoid.

The concern he raises as a potential obstacle is that our politics become the captive of “constitutional originalists.” He summarizes the Framer’s concerns well when he writes: “The Constitution is silent much of the time. And that’s a good thing.Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, and so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstances.”

He also asserts that “constitutional orginalists” are legitimately countered by “liberal scholars [who] analyze the text just as closely to find the elasticity they believe the framers intended.”

The arguments that arose among the framers during their secret deliberations motivated three of them (Alexander Hamilton, James Madison and John Jay) to write the Federalist Papers (85 articles). These papers were the equivalent of advertising to sell your product. They were greatly concerned that some states would not ratify the Constitution and they knew that the public had little to no information which would help make the case for this radical new form of government. The public was fed by rumors, speculations and half-truths which played on fear not unlike our current politics. Given the secrecy of their debates (and the likely leaks), this shouldn’t surprise us. But it does call into question how certain proponents of knowing their intentions can, with certainty, know those intentions.

The Federalist Papers were used then to educate the public and are used to this day to attempt to justify political positions and legal interpretations of the laws that followed the adoption of the Constitution. The left as well as the right have referenced them to make their cases, sometimes citing the same Federalist paper and author to say, “See, that is what was meant and intended.”  This is not to treat lightly or mock these assertions, but rather to provide evidence that the same written word, even when the historical context is correct, can be used to shape current legislation rooted in different political philosophies.  

Let me provide some examples that support the assertion I make, and Richard Stengel made, that we should not treat the Constitution as a rigid set of doctrines but rather as a set of unchanging, guiding principles.

• Constitutional originalists (conservatives) would like us to greatly reduce the role of the Federal government in most matters. They might refer to Article Two of the Articles of Confederation which declares that “Each State retains its sovereignty” and could be used as evidence of the “intent” of some of our founding fathers.  However, the Federalist papers made a strong case for limited sovereignty for the states out of fear that the nation could not be united if too much power resided with the separate interests of the states. In, fact the Articles of Confederation were discarded in favor of the draft of the Constitution.

• More to the point, and unambiguous to many legal and constitutional scholars, is Article I, Section 8, which grants Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

In fairness to constitutional originalists , that very clause has, over the decades, conflicted with Article 10 (the Tenth Amendment), which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Some legislation passed by Congress over the last two centuries has required the Supreme Court and our federal judiciary to intervene to resolve the disputes associated with “States versus Federal rights.” That they foresaw having a strong judiciary to resolve these differences as time changed circumstances is further evidence of their ambivalence about federal versus states’ rights. Future disputes can’t and shouldn’t rise or fall on assertions about the intent of our founding fathers.

o However, to limit the power of the central government, the Framers’ genius was to create “checks and balances” (Federalist Papers Nos. 51, 62 and 63), although there is no specific reference to that in the Constitution itself. They did this through a bicameral governance structure, with a weak executive (President) and an arbitrator in disputes – the Supreme Court and our federal judicial system.

o A subtle but profound point found in the Federalist Papers is another stroke of genius by the framers: They wanted to avoid the divisions that could tear us apart if we had a government constructed around “interests” as in a parliamentary system representing nobility and “commoners” – the “elites” of their time. They saw that the representational system (House and Senate) would force the likelihood for compromise and resolution of conflicts in a more inclusive manner with a shared sense of the “common good.”

Their vision was to create a “United States,” not a federation of autonomous states. They saw a government structured with a separation of powers, a division of labor to deal with different tasks (the legislative branch to enact, executive to execute and judiciary to resolve legal and constitutional conflicts), would be more efficient and focus on its tasks. (Let me digress: We can hardly look at our current politics and say this is operating according to their design and hopes, although it has over most of the 223 years – albeit in the face of much partisan debate and occasional acrimony and, of course, the Civil War. Nonetheless, they envisioned a political process in support of a Constitution that seeks to promote compromise, collaboration and, ultimately, unity.)

In closing, attendees at the Library were invited to listen to the viewpoint advocated by many conservatives who will assert with vigor that the Affordable Care Act (which they euphemistically and pejoratively recast as Obama Care) is unconstitutional because it oversteps of the framers’ intentions when it wrote Article I, Section 8, Clause 3: “The Congress shall have the power . . . to regulate Commerce with foreign Nations, and among the several States.” We have no way of knowing what the framers intended regarding an unforeseeable future when they wrote this.  However, there are many laws passed by Congress which clearly establish the legitimacy to do so under this clause in the Constitution.

At the same time, as part of our governance process, it is legitimate to oppose legislation thought to be unconstitutional. Currently, many lower federal courts are split on the issue. It will be up to the Supreme Court, which is hearing arguments in this case this week, to rule; one must be cautious when hearing a point of view that has a political agenda attached.

This most important issue can’t be resolved through what we think the framers intended, or a strict interpretation of the principles embedded in the Constitution.  It must pass the tests of “necessary and proper,” “provide for the general welfare” and the commerce clause, along with other precedents pertinent to the issue.

So let us all reaffirm our support and allegiance to the Constitution, but at the same time respect and trust the governance structure, whose success in operation depends on compromise, and require of our political processes and the parties that they return to a commitment to the common good and unity of our nation.

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