Sunday, August 16, 2009

Of Government and Men: The Nature of the U. S. Constitution

The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of legal authority underlying the existence of the United States of America and the Federal Government of the United States.

Wikipedia entry for "United States Constitution"

The U.S. Constitution lays out the rules for what our federal government can and can't do. It sets up boundaries for the three equal branches of government: the Executive, the Legislative, and the Judiciary. It also sets up a number of checks and balances to keep these branches equal, and to keep any one branch from overwhelming the other branches, or the citizens. In The 5000 Year Leap, W. Cleon Skousen describes our government as a three headed eagle, with one head being the judiciary, one the executive, and the center head representing the legislative branch, with the Senate and the House each being represented by an eye in the head of the eagle. If the three heads of the government operate as equals, the eagle can fly higher. If they try to overwhelm the others, the eagle won't survive. For a more complete discussion of the details of the Constitution, go to the National Archives website devoted to the Constitution, found here.

One of the most amazing aspects of the Constitution is that the framers knew there would be situations and developments they couldn't foresee. There are those both in and out of our government who claim the Constitution is a "living" document. Under this theory, the Constitution means whatever any generation reads into the words of the Constitution. This method ignores the thinking of the Framers, or the plain meaning of the words in the Constitution. Using this theory, any generation can read into the words a right or power of government that the framers never debated or considered. This is not a process the framers intended.

Joseph Story was Justice of the U.S. Supreme Court from 1811 to 1845. Justice Story served on the Marshall court, was a professor of law at Harvard, and was a son of a participant of the Boston Tea Party. Justice Story said the, "…framers were not bold or rash enough to believe, or to pronounce, [the Constitution] to be perfect…[t]hey desired, that it might be open to improvement; and, under the guidance of the sober judgment and enlightened skill of the country, to be perpetually approaching nearer and near to perfection." This is why they set up the Amendment process.

The framers included a provision in the constitution to amend it. This procedure makes it difficult to amend the Constitution, but not impossible. It requires two thirds of both houses of Congress to start an Amendment or two thirds of the states to call a constitutional convention to purpose an amendment. Any amendment proposed (regardless of where it originated from) requires three fourths of the States approval to ratify. Interestingly, the President has no role or authority in the amendment process. This is a very difficult method for modifying the Constitution, but not an impossible one. Justice Story, writing in his lifetime, stated, "That the power of amendment is not, in its present form, impracticable, is proved by the fact, that twelve amendments have been already proposed and ratified." To date, there are 27 Amendments that have been ratified.

The point to this is that the Founders knew the Constitution would need changes over time. They intended for it to be changed, but not through the courts. They intended the people and the elected representatives of the people to change it. Judicial decisions such as Roe v. Wade may or may not be the law the people want. However, the way it became law is not the way the founders intended. They did not intend a "living document" that each generation could read new meaning too, or derive new meaning from plain words. If the people believe we have a fundamental right to an abortion, this should be purposed as a new amendment and not created out of a judicial decision. Roe v Wade is not the only bad law that has come about this way. Judges should rule on what is currently law, and not what they think society needs or wants. Edwin Meese III writing for the Heritage Foundation says it this way:

"Taking the politics out of the judiciary is a key tenet behind the concept of constitutional originalism. That's the idea that judges should issue rulings based on the original understanding of the authors and ratifiers of the Constitution and the Bill of Rights – rather than on outcomes that reflect the judge's personal biases or policy preferences."

In recent years, we have ignored the nature of the Constitution as the framers wrote it. The amendment process is the only constitutionally acceptable method to modify our Constitution. This worked for a long time. In the last 42 years, only two amendments have been added to the Constitution: the 26th Amendment setting the voting age at 18, and the 27th Amendment restricting time frames for Congressional pay raises. We should hold our elected officials accountable and force them to abide by the Constitution. If we ignore the Constitution in this, what is the next part of the Constitution our government may try to ignore?

This is the fourth post in my "Of Government and Men" series. This series is designed to cover some of the my fundamental beliefs regarding government in today's world. I have a list on the right where you can page through this series, or look here, here, and here. If you have any thoughts or comments, share them here. I will probably update this series down the road to include some of the discussions from the comments in this post.


Patrick said...

I continually enjoy this series. Thanks for this Andy.

On another note, I also have another idea for a post. How about gun laws? I recently purchased a firearm for home defense, and also obtained a license. However, I'm perplexed by the Federal and State Firearm laws vs. Application of these laws. It's something that really needs attention in my opinion.

Andy D said...

Thanks for the compliment. I think I have 5 more in the series planned out.

What are you perplexed about? If you want me to develop it into a post, send me an email and I will start working on it.

Rebecca said...

I'm enjoying this series as well. You make some great points about the Constitution, especially concerning judicial review. Another post idea for you could be talking about the judiciary branch and their duties according to what the constitution says versus what it is today.

Andy D said...

Thanks for the suggestion Rebecca. You and Patrick have both given me good ideas to continue this series with. What most people don't realize is that Congress actually has some very strong check's it can use against the Supreme Court, it has simply chosen not too.