Talks Many Moons

Important Enough To Read, But Not Important Enough To Listen To January 8, 2011

First the House Republicans make a huge production about the importance of reading the Constitution on the floor of the House.  Then when they read it, most do not stay all the way through.   Attendance was rather sparse for this supposedly important event. 

In fact the speaker of the House, John Boehner and Eric Cantor, second ranking Republican in the House, could not even make time to stay and respectfully listen to the document they supposedly hold in such high regard and whose reading was so important. 

Now I am not going to state whether this was just a political stunt on the part of the Republicans or not.  If it was it was clumsily done.  If it was generated by a sincere appreciation of the Constitution and an honest belief of the importance of reading it aloud in the House – well that sincerity and honesty must be only half felt.  Otherwise they would all have attended and stayed throughout the reading. 

And would have read the complete Constitution. 

They left out the bit about slavery and also omitted the 18^th amendment.  Even though both were later changed they are still part of the original historical document.  The Original…. that is something that Republicans have made into a bit of a fetish. 

For example, take their mantra of original intent.  That sounds nice -  just look at how our founders understood the Constitution and follow along.  However there is a huge problem with this, that being when you cite original intent you must also ask which founder’s original intent. 

A quick look at history shows that our founders, many of whom were at the Constitutional Convention and helped write this document, disagreed vehemently with each other on the meaning  of what they wrote and how best to implement it.  In fact, at times the rhetoric of their disagreements reached truly Glen Beckian proportions in terms of its vitriol.   

Republicans are fond of quoting just one of the founders and ignoring the voices of the other founders who disagreed.  For example, I recently carried on a conversation with a very conservative Republican individual who argued that our social security, welfare, and many other such programs were unconstitutional since they were not specifically mentioned in the Constitution.  In fact, he was for eliminating about 90% of our government as unconstitutional.

He further stated that liberals and the courts have erred in their reading of the “general welfare” clause of the Constitution that has been used to justify some of these programs and cited Jefferson and Madison as the basis of his views.  He seemed to believe that their beliefs on how to interpret this clause was shared by all of our founders.

Before I post my response to this claim let me point out that it should be fairly obvious that the Constitution was meant to be interpreted.  It is too short to be an effective guide to forming and running a government without being interpreted.  Just think of government policies or even private industry policies and how long they are as they try to deal with every circumstance.  Now compare that to the length of the Constitution, even with the amendments, that is our guide to running a complete national government. 

It is an conceit born of ignorance to think that the Constitution can work without interpreting it.  Especially since this greatest of all political documents has to deal with a changing world – internet, easier travel, better communications, improved technology and medicine, etc – all of which create issues our founders never had to deal with. 

I was pleased that in doing research for my response that this point had been brought up in previous Supreme Court rulings. 

As for my response to my very very conservative Republican: 

You seem to overlook the fact that our founders did NOT agree with each other.  This holds true both for the meaning of and how to properly implement “the general welfare” clause as it does for every other section of the Constitution. 

In fact, Madison’s co-author of the Federalist papers, Alexander Hamilton, disagreed with Madison and Jefferson and took a much broader view of what this clause meant.  This broader view was one that at least two other of our founders, Washington and Monroe, shared.  

Now, while it was not until the 1936 U.S vs. Butler ruling that the Supreme Court ruled explicitly that Hamilton’s more literal and broader interpretation of the “general welfare” clause was the correct one there were several other rulings that laid the foundation for a  broader interpretation of the Constitution along the lines that Washington, Adams, Monroe, and Hamilton argued for.  

For example, Jefferson and Madison argued against a national bank by stating that it was not explicitly allowed by the Constitution.  Hamilton, with Washington’s concurrence, argued that it was necessary in order to carry out the provisions of the Constitution.  Hamilton won, both in the Congress at the time and later on in a Supreme Court ruling – McCulloch vs. Maryland in 1819.

In that ruling, Chief Justice Marshall argued that Congress can act on both explicit and implied powers.  He stated that this must be so just as a matter of pragmatism; that if all the means of implementing the explicit powers were listed the Constitution would become much too lengthy to be practical or to be understood.

In other words, the Constitution was a framework of basic ideas that would need interpretation to be fleshed out into a working government. 

In this particular case his ruling said that since Congress had the explicit powers to issue and borrow money, collect taxes, and maintain armies then they had the implicit power under the “necessary and proper” clause to establish a National Bank.  

In this decision Justice Marshall wrote that:  “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional…” 

He also stated that the Constitution “…intended to endure for ages to come, and, consequently, to be adapted to the various crisis of human affairs.”

In other words this unanimous ruling by the Supreme Court in 1819 stated that the Constitution had to be interpreted to be a workable document and may have to be “adapted” to changing times.   

As a side note I should mention that Daniel Webster argued this case before the Supreme Court and argued brilliantly for a broad view of the Constitution.  He obviously won the case. 

Perhaps I should let Alexander Hamilton now have the last say here. 

 [A] criterion of what is constitutional, and of what is not so … is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. “

In other words, broad readings of the Constitution are Constitutional.  And have been argued to be so by many of our founders from the beginning.