Monday, January 10, 2011

Making Amends With The Constitution

The newly installed House of Representatives clearly gets it.  Beginning the new 94th Congress with a complete reading of the Constitution and requiring that each bill that is introduced cite the Constitutional authority were smart moves by the new leadership.  All of this really shows how brilliant the Framers of the Constitution were.  The House was meant to be the People's House.  Requiring that the entire House has to run for election every 2 years in a direct election was an important safeguard to insure that the direction of the federal government would never stray too far from the people's will.

Over the years when I have heard people complain about Washington, my response has always been simple.  "The people have a lot more power than they think.  If they want something different they have it in their authority to totally replace the House of Representatives in less than 2 years".  This past November we saw how true it is.  This is exactly what the Founders envisioned (special thanks to James Madison in particular!)

The size and scope of the attempted expansion of power by the federal government by the President and the last Congress is reminiscent of the Roosevelt administration in the 1930's.  Tough times do require tough decisions but where does one draw the line?

Bailing out Fannie and Freddie.  Bailing out half of Wall Street.  Bailing out GM and Chrysler.  Giving secured creditors of these two companies cents on the dollar while bailing out their unions.  Bringing action against a state for trying to enforce federal law.  Requiring people to buy individual health insurance.  Subjecting 80 year grandmothers to full body searches by the TSA.

Is any of this within the power of the federal government based on our Constitution?  It seems a very reasonable question in my mind if you merely consider a little history.

For example,
  • Article I, Section 8 of the Constitution provides that Congress has the power to lay and collect taxes.  Nevertheless, the income tax law of 1892 was ruled unconstitutional because it was considered outside the power of Congress.  The 16th Amendment was ratified in 1913 to allow it.
  • There was nothing in the Constitution signed by the framers that precluded women from voting.  All references in the document were to people, not men.  However, the culture and custom was generally for only males to vote.  Nevertheless, it took the 19th Amendment in 1920 before it became the law of the land.  Interestingly, 15 states (beginning with Wyoming in 1870) granted women the right to vote before adoption of the 19th Amendment.  Since voter eligibility was an issue left to the states (in that it was not specifically enumerated in the Constitution by the Framers) women in these states voted in both state and federal elections before 1920.
The point here is pretty clear to me.  There was a time when the Constitution meant something.  It was respected for what it was.  So were the limitations that were carefully crafted into the document by the Framers.  Even when there was pretty compelling language in the Constitution to bend it to the "current times" it was ruled out of bounds.  Has something been lost?

Was it designed to change with time? Of course.  That is what the amendment process is for (Article V).  The Framers in their wisdom also considered this carefully.  They did not want it amended for some passing fancy.  Nor did they want a small majority to change the key foundations of the governing document to the detriment of a significant minority.  Therefore, 2/3 of both the House and Senate can come together and propose any amendment.  They do not even need the President to concur.  Alternatively, 2/3 of the states can come together and call a convention to propose their own amendments and bypass Congress completely.  If the amendment is ratified by 3/4 of the state it is adopted as part of the Constitution.

If the American people want a federal government with expansive power they can have it.  They can allow gay marriage.  Or ban it in all 50 states.  They can require everyone to buy health insurance or anything else.  

It just does not seem that these types of powers exist with the President or Congress with any reasonable reading of the Constitution.  At least, this has been the interpretation for most of our history.  Nor does it seem to be within the power of a handful of judges to suddenly discover fundamental rights that have somehow been hidden in the Constitution for over 200 years and start applying them to 308 million citizens by fiat.

That is why there is an amendment process to the Constitution.  It is hard and it was meant to be hard.

It is good to see the House of Representatives (with a keen ear to the people) trying to make amends with the Constitution.  We can only hope we will start to see more judges defend it than try to define it in their own terms as well.


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