About
Learn More about our progressive online community for the Granite State.

Create an account today (it's free and easy) and get started!
Menu

Make a New Account

Username:

Password:



Forget your username or password?


Search




Advanced Search


The Masthead
Managing Editor
Mike Hoefer

Editors
elwood
susanthe
William Tucker
The Roll, Etc.
Prog Blogs, Orgs & Alumni
Bank Slate
Betsy Devine
birch paper
Democracy for NH
Granite State Progress
Mike Caulfield
Miscellany Blue
Pickup Patriots
Re-BlueNH
Still No Going Back
Susan the Bruce

Politicos & Punditry
The Burt Cohen Show
John Gregg
Landrigan
Pindell
Primary Monitor
Scala
Schoenberg
Spiliotes

Campaigns, Et Alia.
NH-01
- Andrew Hosmer
- Carol Shea-Porter
- Joanne Dowdell
NH-02
- Ann McLane Kuster

Special Elections
- Strafford 03Bob Perry
- Hills 03Peter Leishman

ActBlue Hampshire
NHDP
DCCC
DSCC
DNC

National
Balloon Juice
billmon
Congress Matters
DailyKos
Digby
Hold Fast
Eschaton
FiveThirtyEight
MyDD
Open Left
Senate Guru
Swing State Project
Talking Points Memo

50 State Blog Network
Alabama
Arizona
California
Colorado
Connecticut
Delaware
Florida
Idaho
Illinois
Indiana
Iowa
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Missouri
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Rhode Island
Tennessee
Texas
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin

On Monday Morning Philosophy, Or, Founders Tell America: "You Figure It Out"

by: fake consultant

Mon Mar 21, 2011 at 02:38:56 AM EDT


In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing "liturgical foundation" to the adherents of the point of view that the Constitution is like The Bible: that it's somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia...was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent...was that we work it out for ourselves as we go along?

fake consultant :: On Monday Morning Philosophy, Or, Founders Tell America: "You Figure It Out"
"...you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal..."

--From the song "Gasoline", by Sheryl Crow

The reason this is coming up today is because I've been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it's to be done at all, it's something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no "foreign entanglements" or National Banks...a time when men of the soil worked their farms with no fear of Debt or The Taxman....a time when government worked best by using local wisdom to deal with local problems.

In other words, we're basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don't recall, Hamilton won, which reflects the reality that we don't all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments "fundamentalists" fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today's problems would be found by simply allowing the Original Intent to shine through.

I'm here to tell you that couldn't be more wrong-and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that "peculiar institution" were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by "the various States" there were compromises made, including the 3/5ths Compromise and Article Four's requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of "let time work it out" thinking led us to Article 1, Section 8, and the "general welfare" clause.

Congress is empowered to enact legislation that provides for the "common defense and general welfare of the United States"...but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, "unclear phrasing").

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders' Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to "accept" Federal laws...or not.

Over time, of course, we've come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would "find their center".

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we've seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn't really exist as an issue in 1789.

I'm guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that "general welfare" clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government's powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That's right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of "leave things open" and let time work it out.

Here's an example of how one of the Founders tried to tried to kill the "Original Intent" argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he's also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder's Intent was to make the Constitution's words stand on their own, without his notes to frame the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.  

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you'll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words "you may establish Social Security"-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt's proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here's part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it's to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn't change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.
Poll
what constitutional defect would you fix?
acknowledge the right to marry freely
reestablish a 4th amendment
enshrine a right to privacy
pass an equal rights amendment
28th amendment: "talk like a pirate day"

Results

Tags: , , , , , , , , , , , , , , (All Tags)
Print Friendly View Send As Email
you knew it couldn't all be set in stone... (0.00 / 0)
...and now you can prove it...

--we are making enemies faster than we can kill them

Thank you! (4.00 / 1)
I know that some people get really uncomfortable with the idea that life is complicated, but it is.  If that really makes you uncomfortable, you might ask why, and you might read this book, free, on line.

If your reaction to complicated issues is to find someone else to give you a simple answer, then you might consider growing up, because the alternative is to escape responsibility for making grown-up, caring decisions.


i will try to take a longer look... (0.00 / 0)
...at what already looks to be a most interesting read, and i would encourage others to go have a look as well.

--we are making enemies faster than we can kill them

[ Parent ]
About Your Poll (4.00 / 1)
Mice post.  Much to think about.  

On the poll, I was going to vote "acknowledge the right to marry," but I voted "pass an equal right amendment."  I voted for the ERA in the NH House back in the early 1970s, and it remains a vital matter.

I think both marriage rights and equality are already guaranteed, and Court orders are indicating such.  But if I could have whispered in the ears of the framers I might have urged more specificity, just to be more clear.  

Equal rights affects each of us.  Since nothing on this planet is more important than the way we treat one another, being guaranteeed our equality should be part of the basis of every government.  


They would never (4.00 / 2)
have been able to get agreement on a constitution that specified those things, but what that leaves us with is the conviction that the constitution is a living document that we are SUPPOSED to interpret given the issues we face.  

[ Parent ]
it's also fair to say... (0.00 / 0)
...that over time we have raised our expectations of what should be, and i would suggest that you are correct to point out that true equality never had a chance in 1787--but it's also fair to acknowledge that any constitution that would be written today must have true equality as a central premise.

--we are making enemies faster than we can kill them

[ Parent ]
the point you8 make here... (0.00 / 0)
...regarding specificity actually seems to echo both sides of the argument over whether there should or should not have been a bill of rights.

on the one hand, the specificity you note allows litigants to go to court and point to a particular phrase or clause to stake a legal claim...but the other side of that coin is that many felt that same specificity might serve as a limit, that rights not enumerated would be rights lost; in this discussion of the era and marriage rights we see evidence of that point of view as well.

--we are making enemies faster than we can kill them


[ Parent ]
Good essay (4.00 / 1)
I disagree in large part with it, mostly because the intent of the founders is pretty clearly documented in so many places, so many discussions, and the decisions made in the next years after passage which help to show the intent of the people who did the original document.  Your supposition that we don't know what they wanted just isn't true: we do know what they wanted to achieve.  Perfect, no, but blueprint, yes.

But I did LOL at the 28th amendment idea.  I'm a big fan of Talk like a Pirate Day... but not enough to add it to the Constitution.

All of the rest are interesting options, but I suspect I'd put privacy or restoring the 4th (which are related, and I'd want to fix both at once)

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant, despite many of his comments being marked down and hidden.


if you really have a look... (0.00 / 0)
...many of the sources we use as evidence of intent are materials written before the convention, and in some cases, before the revolution and the articles of confederation ("common sense" being an excellent example).

while those are historically interesting, there really isn't anything available (except madison's notes) that would represent the same kind of contemporaneous record of events during the actual convention that we would liken to the congressional record or the legislative video records, like washington state's tvw, which is how we determine legislative intent in the modern era.

rulings like marbury v madison are in fact fundamental to our understanding of what the constitution has become, but again, we're talking about opinions and actions that took place a decade or more after the constitution was actually written, and even from a distance of only 10 or 15 years, you're still interpreting the past as best you can.

(here's another example: if we were today to determine the "intent" of those who worked to pass nafta, without the help of the congressional record, we'd be doing a lot of interpreting through our own lens of history, and at least some elements of our analysis would presumably be affected.)

--we are making enemies faster than we can kill them


[ Parent ]
I'd scrap the whole thing (4.00 / 1)
and write a new one. Seriously.  

we are always looking... (0.00 / 0)
...for topics to write about, and i could easily imagine you doing an entire series of stories laying out a new constitution, article by article, and explaining how you got there.  

--we are making enemies faster than we can kill them

[ Parent ]

Connect with BH
     
Blue Hampshire Blog on Facebook
Powered by: SoapBlox