"Whenever I go into a restaurant, I order both a chicken and an egg to see which comes first"

Friday, July 6, 2012

Misconstruing The Constitution

The Constitution is a document which both establishes the structure of government and sets forth rights which provide the foundation for American democracy.  More than just a document of guiding principles, it is a statement of our values, ideals, and vision.  Moreover, as expressed in the Declaration of Independence, these rights are inalienable because they have a divine origin:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

For over two centuries, the Constitution has been an anchor and a beacon for a country often riven by regional, sectarian, economic, and partisan differences.  The Founding Fathers, children of the Enlightenment, had a strong grounding in a philosophical movement which valued knowledge, reason, science, and intellectual interchange and which opposed superstition, intolerance, and abuses by church and state.  Jefferson and his colleagues believed that all creation was rational, so that it was possible for man to uncover laws which regulated society, politics, the economy, and even morality. Once understood these laws would teach us not only what we are, but what we ought to be and do.

The philosophers of the 18th century – Locke, Voltaire, Rousseau, and others – knew that to be able to effect this discover of universal laws, they would have to study history.  Contrary to the principles of the Enlightenment, most of the past millennium was one of autocracy, suppression, injustice, and civil and international wars.  Jefferson and his colleagues, then, wrote the Constitution based on religious and moral principles, but also on an understanding of the past.  Some critics today have suggested that the Constitution is losing its validity because the 21st century is nothing like the 18th, that the Founding Fathers could never have anticipated the size, diversity, and complexity of modern society, and that the Constitution should be sidelined in favor of more immediate, popular deliberation.

This criticism misunderstands the origin and nature of the Constitution.  It is a durable and continually relevant document because it states universal and moral principles which have guided civilization since the Greeks.  Jefferson and Madison of course knew that this fledgling country would change, grow, and become more complex; and that it would superficially be very unlike their world.  Anyone thinking today knows that the 22nd century will be barely recognizable with the inevitable changes coming in science and technology.  It is hard to imagine a world where the very nature of human beings will be altered through recombinant DNA; and that we will operate in a new, almost limitless universe made possible through a mind-computer interface.  However we know that it will be dramatically different from ours.

The genius of Jefferson and the Founding Fathers was that they understood the past, anticipated the future, and knew that the establishment of a set of moral, ethical, and implicitly religious principles would be absolutely necessary to guide the unknown world to come.  They also knew that a an arbiter would be necessary, and set up the Supreme Court to view the contemporary world through the lens of the Constitution and rule on how laws reflected its principles.

In an opinion piece in the New York Times (7.6.12) William Forbath of the University of Texas applauds the recent Supreme Court decision on health care, but laments the conservative decision that restricts the Commerce clause:
Legally, this is a landmark victory for judicial conservatives. The Court held in two cases in the mid-1990s that the Commerce Clause does not allow Congress to regulate things like gun-free school zones and domestic violence on the theory that they "affect commerce," but this was the first time since the 1930s that the Court held that an explicitly economic regulation went too far. The Commerce Clause has already gone very far afield from what the voters who ratified the Constitution thought they were agreeing to (TGC 6.28.12)
In other words, the Court drew what it considered a final line in the sand which Congress could not cross to pass activist laws such as those cited above.  However, not only did the Court redefine the limits of the Commerce Clause, the dissenting opinion on which further opinions could be based, reaffirmed a more conservative interpretation of the Constitution:
The joint dissent, for example, invokes James Madison’s views on the spending power to shed doubt on the constitutionality of three “federal Departments devoted to subjects not mentioned among Congress’ enumerated powers”: Education, Health and Human Services and Housing and Urban Development.
The joint dissent also offers a stark revision of federal spending doctrine that could sharply curtail new social provisions. Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.
In Forbath’s mind, this decisions represent an unconscionable blow to liberalism, but can serve as a rallying call to liberals to organize and fight for the principles in which they strongly believe:
While it handed liberals a victory on the Affordable Care Act, it also gave a boost to conservatives to revive the old laissez-faire Constitution in the polity and courts: new doctrine and dictums for their attack on the welfare and regulatory state.
But there is a silver lining for liberals as well: in much the same way that the conservative court of the 1930s forced Franklin D. Roosevelt and his allies to construct the constitutional foundations of the New Deal state, today’s court challenges the White House, the Democrats and the liberal legal community to reassert a constitutional vision of a national government empowered “to promote the general Welfare” and — in Justice Ruth Bader Ginsburg’s terse formula — “to regulate the national economy in the interest of those who labor to sustain it.”
The political lines could not be more distinctly drawn.  By identifying the current Departments of Education, Health and Human Services, and Housing and Urban Development – the three most wasteful and unnecessary new creations of the federal government, the dissenting justices did indeed send a warning shot over the bow of liberal interventionists.  They also echoed the current concern with profligate deficit spending, and suggested that in the future Court decisions would put a Constitutional brake on it. Forbath is dismayed that the response by liberals has been so tepid:
You would think that liberals would have a full-bodied response. They don’t. Instead, they are on the defensive, training their fire on the revivalists’ theory of constitutional interpretation. But conservatives dominate the debate not because they have a killer theory (they don’t), but chiefly because they have a bold, clear account of past constitutional commitments, adding up to a vision the Constitution promises to promote and redeem: individualism, small government, godliness and private property.
This is where Forbath is wrongheaded.  ‘Individualism, small government, godliness, and private property’ are not Tea Party inventions, facile principles to energize the conservative Right; they are principles that have been enshrined in the Constitution.  Individualism was very important to the Founding Fathers and to their brothers of the Enlightenment – not because it encouraged selfish motives or crass material gain; but because it was the only way to achieve spiritual goals. 

Protestantism placed a special value on the personal relationship that an individual had with God, one not mediated by church or pastor.  Free labor, another pillar of the new American nation, was an expression of that religious-based individualism.  Work was not only part of man’s secular enterprise, but that individual labor would enable him to actualize his full potential as a human being.
Small government was the rule in the early decades of the country.  A quick reading of the history of the Old Southwest is illustrative.  It was private investment companies which built railroads, ports, and roads; which bought and laid out town property for sale and development; and government came later to help provide the legal framework and social structure to support it.  While we may take big government for granted today, it was never envisaged by the Founding Fathers who suspected government authoritarianism.

Godliness was perhaps the guiding principle of the Constitution.  As I have mentioned above, all rights of man were endowed by the Creator, and all human activity was governed accordingly.  While the Constitution disavowed state endorsement of any religion, it did not – nor could the drafters believe – discourage religion.  How could it or they?  Not many years prior to Independence the first settlers left Europe for America because of a desire to practice their religion without state interference.

Private property was enshrined in the foundation of American democracy, and it was an extension of individualism and free labor.  Land ownership and title were foundations for economic growth and expansion, for they represented capital on which owners could borrow. 
The ‘workingman’s constitution’ that Forbath would like to see has precedents:
There is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation...
Many framers of the Reconstruction amendments held that education and “40 acres and a mule” were constitutional essentials that Congress must provide to ex-slaves. They also held that equal rights and liberty for white workingmen required a fair distribution of initial endowments, including free homesteads and free elementary and secondary education, along with land-grant-funded state colleges.
In the wake of industrialization, turn of the century reformers declared the need for a “new economic constitutional order” to secure the old promises of individual freedom and opportunity. America was becoming a corporate oligarchy, making working people wage slaves, impoverished and ill-equipped for democratic citizenship.

None of these examples are really relevant to Constitutional interpretation and the intent of its framers.  No one should be proud of Radical Republican laws of Reconstruction, for they set back the course of re-integration of the country by a century.  Congress totally misunderstood the reaction of newly disenfranchised Southern planters, and how they would manipulate the North’s desire for a consolidated Union to their advantage.  The ‘free distribution of endowments’ to the yeoman of the Southern hill country, was an attempt to empower people who had none and were an irritation and growing political threat to the plantation owners.  In short, it was a misguided attempt to interfere with the political process and power debate going on in the South.

The proposals of turn of the century reformers also has nothing to do with Constitutional rights and provisions, and was merely an attempt to change what they saw was an unsettling course of concentration of wealth; and while their intent was reasonable, its effectuation would and should have happened within the political process.

Forbath quotes Roosevelt on the philosophy of his New Deal:
“Every man,” Roosevelt said, has a “right to make a comfortable living.” Alongside education, “training and retraining,” decent work and decent pay, his Second Bill of Rights set out rights to social insurance, including health care.
Again, this laudable set of principles has nothing to do with Constitutional guarantees.  I was in Poland shortly after the fall of the Soviet Union and experts were drafting a new constitution.  One of the items discussed for inclusion in their American-style Bill of Rights was the right to work.  It was never included, however, for Polish framers understood that it was a non-constitutional ideal to be determined by the political process.  Roosevelt’s statement was an enunciation of principle, not a demand for Constitutional reform.
Forbath concludes:
Often during the 2008 campaign, and a few times since, the former constitutional law professor in the White House has spoken in this key. Now he might take a leaf from Roosevelt and use the bully pulpit to explain these constitutional ideals for our time. He should defend the distributive tradition and its vision of government as if our constitutional democracy depended on it.
I hope the President does not.

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