A few months back, the area chapter of the Daughters of the American Revolution asked if I’d speak at their annual Constitution Day lunch.
Someone, the caller told me, said I might make an interesting speaker. With months to mull over the perfect presentation, I let my ego get the better of me and agreed.
But now that it’s the Wednesday night before my Saturday speech, I’m nervously wracking my brain for what I might say. I don’t have any prior experience with the DAR, but I’m told they’re a pretty conservative group. They might not like my staunchly pro-Federalist views.
I suppose I could show up with a pile of law books and vainly try to prove I’m right about the Constitution, which I believe makes room for a strong federal government, even “socialized” health care, if that be the will Congress. After all, I’ve got that great chief justice and soldier of the American Revolution, John Marshall, on my side.
But sometimes the Founding Fathers themselves couldn’t agree on the precise meaning of the Constitution. Maybe those maddening ambiguities in, say, the Second Amendment, were the only way they could get the Constitution ratified. How are we mere 21st-century mortals to come to unanimity over the precise meaning of our founding document?
So instead, I think I’ll start by talking about the parts of the Constitution most of us can agree on – the beautifully crafted separation of powers and checks and balances that ensure even a party with the presidency and sizable majorities in both houses of Congress can’t accrue too much power in the face of a committed minority.
With all those acrimonious debates these days over states’ rights, health care and federal spending, it’s easy to forget the Constitution makes the system inefficient on purpose and it seems to be doing a good job.
We could, I suppose, talk about that “promote the general welfare” clause in Article I, section 8 and its exact meaning. But that’s a meaning James Madison, Alexander Hamilton and Joseph Story couldn’t agree on themselves.
Instead, maybe we can agree that the Founding Fathers intended the Congress to represent the will of the people, so they gave the real legislative power to the House of Representatives. The body even then was elected directly by the citizenry every two years. That, too, seems to be working fine, in theory at least, in this election season that portends another shift in power.
If we haven’t always picked the best representatives, we should scold ourselves and hold Congress more accountable at the polls, not blame the Constitution.
And I hope I can get at least some folks in the audience to agree that we shouldn’t be too quick to invoke our eternal Constitution in the passing political squabbles of the day. Rights are the trumps of the Constitution. Using them too often diminishes their power and they ought to be talked about sparingly and carefully.
Whenever the Supreme Court overturns federal law, it thwarts the will of the people, from a constitutional perspective, and ought to do so rarely, applying the specific language of the limits on government power in section 9 and the Bill of Rights.
Those provisions were intended to protect the people, but they were also designed to guard the minority from the majority. That’s why the Founding Fathers created an unelected judiciary, unaccountable to political pressure. And why unelected judges should always defer to the wisdom of legislatures, unless the laws they pass are clearly illegal based on the plain language of the Constitution itself.
A few months back, I started weekly Wednesday lunches at 1 p.m. at the Readers Café in Hanover to talk about the Constitution. At one of those lunches, a gentleman asked me if I believed in a “living” or “dead” document.
I wasn’t sure how to reply. It’s become fashionable to insist the Constitution is “dead” – that is, fixed in its late 18th-century meanings. Or conversely that it is “alive” and can mean anything we want it to mean.
But I don’t like either answer. What if the long-dead Founding Fathers intended the Constitution to live for the ages? That their charter’s meanings would remain fixed in terms of the processes and principles, but be flexible enough to adapt to changing circumstances.
I think that’s the kind of Constitution the Founding Fathers were able to put aside their differences long enough to ratify. Maybe we, too, can agree on that much.
By the time this column is published, I’ll have given that talk to the DAR. If I don’t get beat up too bad, I’d be happy to have another dialogue on the Constitution any time, any place. Call me, email me or come by for lunch some Wednesday.
I’ve avoided specific cases in the space of this column, but I hope to talk more about the specific constitutional questions being asked today. We can discuss specific issues and the applicable constitutional text.
And if we can’t agree on the answers, I think that’s OK, too. The Constitution in its timeless wisdom lets us agree to disagree.
Marc Charisse is editor of The Evening Sun. E-mail: firstname.lastname@example.org
About The AuthorMarc 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 email@example.com.
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