There’s been a lot of talk lately about the U.S. Constitution, but most of it has been one-sided monologue.
Those opposed to a number of federal policies insist the Constitution if being violated, while the other side stays largely silent. I don’t think the should, for it’s by no means a settled question that the Constitution isn’t on their side.
The Founding Fathers themselves did not agree on the exact meaning of the Constitution; like so much human endeavor it was the product of conflict and compromise. Still, the majority was able to assent to a set of principles long enough to ratify the longest-lasting, most successful charter for representative government mankind has ever produced.
But it’s beyond debate that the Constitution was intended to create a stronger central government than that created by the Articles of Confederation, though the extend of that the legitimate extent of that power is still certainly debatable.
The early Chief Justice John Marshall interpreted the powers of Congress to be broad, and thought that in questionable cases, controversies ought to be left to the political branches of government.
As Marshall wrote in Gibbons v. Ogden, “Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass and that the original powers of the States are retained if any possible construction will retain them may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use.”
I think he might as well have been speaking to those who would use the Constitution to undo health care, of social security, or a wide range of economic legislation it’s currently fashionable to call “unconstitutional.”
Like I say, these are debatable points, and no one has a monopoly on what the Constitution means.
So let’s debate …
About The Author
Marc Charisse is the editor of The Evening Sun. Dr. Charisse has a Ph.D. in First Amendment law and history, and has taught communication law and constitutional law at the University of Washington in Seattle and Jacksonville University in Jacksonville, Fla. Charisse can be reached at mcharisse@eveningsun.com.
Hi Marc. Well as it appears people are fearful of debating our own resident constitutional scholar, and since I’ve never been one to ever shy away from an intelligent conversation, I’ll start. But I’ll do so with a preface that the minute others (ala Topix.com) decide to degenerate the conversation into nitwit rants, name calling and ignorant jabs at spelling mistakes, I’ll make my leave and look again for someone else to debate intelligently.
As I interpret it, your take on the constitution is that it is a living, modifiable document left solely to the interpetation of society. Is that an accurate reflection? Why then did our founders go to such pain to solidify the documents wording, and led some to risk their very reputations to modify the early drafts to match their liking. Why didn’t they simply leave it to “fight another day” knowing they’d be more successful once they’ve seen to it they’d gather a sounder support system?
Why then did the founders require that in order to change the constitution, states would be required to stand in approval of it in majority and ratify the ammendments? Why not simply make it a simple majority of the members of Congress?
These gentlemen knew the impact that this document would have on the overall governance of our country and never intended for the wims of a few powerful groups to influence or bastardize the intentions of their words.
Hi Silence,
Thanks for posting. I, too, will up and leave if this forum degenerates into the personal attacks you see on our comment boards, and will in fact look into getting approval power before someone can post — not to censor but to keep the conversation civil.
But on to your substantive comments.
I wouldn’t say I believe in a “living” Constitution in the sense that it means whatever I want it to mean. Some of its provisions are pretty clear, especially those creating the system of checks and balances. There is much in the bill of rights which clearly sets standards and limits on government action. But even there, rights can be vague and even in conflict (free press versus fair trial, for example.) Many other sections aren’t so clear and their meaning is subject to debate. I don’t think the Founding Fathers themselves agreed on everything, as your comment suggests. Some wanted broader federal power, others wanted to retain more state authority. The Constitution is a compromise which will result in close cases.
In those close cases, I would argue for judicial restraint and deference to Congress and the executive, since those are the majoritarian branches answerable to the voters.
Only where laws clearly violate specific parts of the Constitution do I think judges should act to overturn legislation. That’s what courts today call a presumption of constitutionality, which makes sense to me because in theory, anyway, the legislature, not the courts, best reflects the will of the people. Where the unelected federal courts have a special role to play is in the protection of the unpopular from the whims of the majority.
By the way, have you seen the court’s decision in U.S. v. Comstock this week? A very interesting discussion of enumerated powers, the necessary and proper clause and the 10th amendment.
To answer your last question first, I believe that the U.S. v. Comstock ruling is very dangerous. It continues to further a precedent that is becoming more increasingly alarming in which our Federal government can decide how and under what circumstances a legal citizen of the United States may be kept even though state courts have identified their prison term, and they have satisfied it. It lays the groundwork for political discedents to be kept indefinitely out of a politicians fear of their influence. Granted, it has the potential to be used this way but has not as of yet as far as we are aware.
I will now follow up with another question. What are your personal feelings in regards to the 10th Ammendment?
Amendment 10 – Powers of the States and People. Ratified 12/15/1791. Note
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.
This seems to me to be a very unambiguous statement yet there are those who do not acknowledge this ammendment’s power. This indeed does not seem to leave any indecision but it can be safely argued that the federal government has used the interstate commerce laws to ignore this provision and usurp a constitutionally granted powers that could be interpreted as under the authority of the State since it is “not delegated to the United States” (federal government) ” by the Constitution”
I agree that the issue of commitment hearings raises profound constitutional issues. But none of that was argued by the court. Even the dissenters argued only that it was up to the states to lock people up, not the feds. My column this week is on the case and I’ll post it here over the weekend.
In answer to your question on the 10th Amendment, I’ll also post a column from a while back…
Marc
Marc,
True, while the recent ruling gives the deference for the States to hold a person defined as “sexually dangerous”, “indefinitely”. How many times has it been proven over the past 5 years since dna testing became a more accepted investigatory tool that 20 year incarcerations were purged and the person set free. The theory that we should be able to hold a person indefinitely after they have served their sentence is unconscionable. I understand and accept that there are certain people who are not rehabilitation material and heinous crimes such as rape and murder should be dealt with in swiftness and with the fullest power of the law…however no citizen of the United States should ever be incarcerated under one legal agreement only to be told at a later time by a different branch of government that the rules have changed.
Silence,
I appreciate your accurate quoting ot the 10 Amendment. Many want to sneak the work “expressly” in, which changes its meaning.
The 10th Amendment says simply, “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.”
The writers of the Constitution met in Philadelphia is 1787 because it was clear the Articles of Confederation weren’t working – the new nation could not survive without a stronger central government.
Under the articles, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
But no constitution could contain every specific power of government, so in effect, the central government had almost none.
Thus, opponents of central authority sought to add similar language to the new Constitution. When the Bill of Rights was being debated in 1789, Elbridge Gerry of Massachusetts introduced an amendment to add the word “expressly “ to the 10th amendment, as in “The powers not expressly delegated to the United States … .” But his motion was defeated 32-17. Clearly, the Founding Fathers didn’t intend the federal government to be limited to a doctrine of express, or enumerated powers.
Here’s what John Marshall had to say about the 10th in McCulloch v. Maryland:
“Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,” thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments.”
That clear evidence of the framers’ intent has been ignored on occasion, and the 10th Amendment has been invoked in opposition to pure food and drug laws, environmental protections, and bank regulations, none of which are specifically enumerated in the Constitution. But mostly, the courts have ruled that the 10th Amendment merely states a truism – that which has not been surrendered is retained. The Constitution does give the Congress the power to enact all laws “necessary and proper” to the it’s functions as the central government.
Politicians and activists on both the left and right have sought to invoke Constitutional rights when they don’t get their way at the polls. But in law, constitutional rights are trumps – they overrule the normally democratic processes of government and should be used sparingly.
A more robust 10th Amendment might limit federal regulation of the economy, something some folks want. But it would just as likely overturn federal laws on heroin and child pornography, neither of which are enumerated in the Constitution.
Hi! Theme is very relevant and important. I learned many new and useful things for themselves. I long could not choose a topic of my research. Now I know for sure.