Saturday, March 5, 2011


Motivated by anger at or hatred of the federal government, many on the far right invoke the Constitution to advance their political agenda. Contrary to long-established understandings, their interpretations derive from wishes in their head, not words on paper. Ironically, their interpretations, if implemented, would change America from a democratic republic to a corporate oligarchy.

Instead of accepting the ratified Constitution, with 27 ratified amendments, these partisans advocate one from several so-called Constitutions: the original Constitution, without amendments; the early Constitution, with 10 “Bill of Rights” amendments; or various “Constitutions” picking and choosing among later amendments. All reflect nostalgic sentiment or “originalist” philosophy.

Those familiar with legal phantasms understand originalism as a specious doctrine which holds that judicial interpretations of the Constitution must follow the meanings intended by its original architects and that what the Constitution does not mention does not exist. We can only imperfectly ascertain original meanings from historical records. Even so, original meanings do not preclude evolving meanings as circumstances change. Paradoxically, the Constitution’s original architects were not originalists; they specifically provided for adjudication of its meaning (ambiguous, vague, or novel situations) by a Supreme Court (Article III) and by Constitutional amendment (Article V).

Originalism suffers not only from Constitutional provisions for evolution, but also from deficiencies of rigid literalism.

Instance: Article I, Section 9, provides that the government shall neither prefer one port over another nor direct vessels to one port instead of another. Since the term “vessel” applies only to boats or ships, and the term “port” only to harbors, originalism leaves the government free to do as it pleases with trains, buses, and planes, and their facilities.

Instance: Article II, Section 2, declares the President to be the “Commander in Chief of the Army and Navy” (and “the Militia of the several states”). Originalists would argue from the fact of omission that he is not commander in chief of the Air Force. Someone else could command it, and, if he disagreed with the president, put this service at odds, if not at war, with the others or with the government itself.

Originalists distort and misrepresent the Constitution to serve their politics.

Instance: They ignore the unamended Constitution when they interpret the Second Amendment. Article I, Section 8, gives Congress power for calling up “Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and for “organizing, arming, and disciplining, the Militia”; and allows states only to appoint officers and train the militia “according to the discipline prescribed by Congress.” Thus, the Constitution gives the federal government authority over state militias to enforce laws and to protect federal and state governments and the country as a whole. The Second Amendment allows people to own arms and not rely on the federal government to provide them. Tea Partiers have something hallucinogenic in their brew if they imagine, as Sharron Angle does, that the Founding Fathers intended it to protect the people from a “tyrannical government.”

Instance: They wrench the Constitution out of historical context to fit it to their political philosophy of low taxes, small government, and states’ rights. The Articles of Confederation (1783), a weak-federal-government predecessor, failed from the start mainly because it lacked authority to tax, resolve differences among states, and amend itself without unanimous consent by the states. Its soon-apparent failures prompted the Convention to draft in 1787, and enough states to ratify by 1789, a Constitution creating a federal government strong enough to tax and borrow funds, take precedence over state interests in the national interest, and adapt to change by judicial interpretation or national amendment.

Unlike us, the Founding Fathers did not expect a poor, small, or weak federal government to do big things on small budgets.

Because the Preamble challenges their political philosophy, originalists ignore this primer for a strong federal government committed to benevolent purposes. It states a platform transcending the factionalism of state or party interests: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.”

I especially like the silence about states and the phrases “more perfect Union,” “common defence,” and “general Welfare” (the latter two phrases also appear in Article I, Section 8). Ben Franklin said it best: “There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them.... I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.... It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies.”

Astonish them we have—and sometimes ourselves—which explains why we should celebrate independence not only on the Fourth, but also everyday.

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