Next to the Holy Bible, the US Constitution is probably the most important document you will ever come in contact with. Some may argue whether the Bible actually takes precedence, but that’s a discussion for another time.
But few would debate that that, in a world where we put aside our differences with regard to faith, the document hammered out in 1787 to replace the failing Articles of Confederation is the most important bullwork to protecting our liberties.
And yet, without the accepted social contracts that the Constitution implies we operate under, and the willingness of those who “lead” our nation to maintain the integrity of the purpose and protections the Constitution affords us, we would likely drift into chaos. But as long as we can point longingly at that document and proclaim it’s efficacy to protect our rights, we are safe.
On Saturday, I spent my usual morning perusing my favorite daily periodical, the Wall Street Journal. As I began reading an interesting piece by David B. Rivkin Jr. and Lee A. Casey on the D.C. Voting Rights Act (an excellent treatise on the issue), my dear wife (who likes to read the Weekend Journal section) mentioned that there was a story about the Constitution in that section as well. Indeed, an interesting piece by Jess Bravin regarding efforts by Liberals and Conservatives alike to frame up opinion based on an Original Intent understanding of the Constitution.
If you have been here at TCR long enough, you’d know that our approach to interpreting the Constitution, as pedestrian as we may be, is in the category of Constructionism, of which Original Intent is one approach. I may seem to be splitting hairs on this, but I struggle with the value of “Original Intent”.
In the study of the Bible, there is a school of thought that one should seek to understand the author’s intent (the actual human author, as well as the Divine) when interpreting the text. In the case of the Bible, this approach has value due to the alignment it enjoys with the theological view that the human and Divine authors shared a common goal due to the presence of the the Holy Spirit in the work. Therefore, a Biblical study based on Authorial Intent in theory provides a singular, or unified view.
I think that those who seek an Original Intent approach somehow believe that there is a singular view of the meaning of the text (of the Constitution) that can be derived in a similar fashion and that may transcend the apparent direct textual meaning. The problem with this is twofold:
- There were a large number of people (those who agreed to an signed the document) whose “Intent” one is trying to uncover, and who certainly did not necessarily all share the same “intent”
- This approach is open to interpretation, and may exceed both the best meaning of the text and perhaps even the intent of the those who approved it
I think it is better to reference the actual text, and to try to understand as best as possible what that text meant to people at the time it was written. This is not always easy (the Second Amendment is a bit of a brain bender for some). This is sometimes referred to as Textualism.
Okay, I’m not a lawyer, nor do I EVER want to play one on TV, but I also don’t think we should let lawyers intimidate lesser creatures like us into believing we can’t understand the Constitution!
So where in the world am I going with this? Is this about how to interpret the Constitution? Not really, it’s more about just getting to know your Constitution. And to do it before it’s value slips away on you.
If you want to maintain your liberties, I believe it is important that you understand them. I could go into a long diatribe on the evils of those who spout off about their “rights” as if rights were something you just make up as you go. Throwing out “Free Speech” and “Separation of Church and State” as if they were tickets to be as unrestrained or as restrictive as you like is ludicrous and dangerous.
Before you even think about taking a position on your rights, liberties, or opinions about what the Government owes you, or what the Constitution says about these things, I want to encourage you to read the document . Read the original document (if you can find one, although the amended copy linked in the prior sentence will do) and the amendments. Read the Bill of Rights slowly, out loud. Contemplate what the words “Congress shall make no law…” means.
If you would like to get to understand the Constitution and the purposes a little better, the best tool that I have found for this is what are referred to as the “Federalist Papers”, a series of articles written by James Madison, Alexander Hamilton and John Jay that provided an explanation and defense for the Constitution’s content. Although they do not address any of the amendments, the wealth of information found in these documents is deep.
Although the topic of Original Intent is woven throughout, the Jess Bravin article is a treasure of historical background about the work of the post-Civil War amendments and consequent court opinions that have established the basis for the breadth of freedoms and who enjoys them today.
The Rivkin/Casey piece provides a straight-forward example of legislative error in dealing with a weakness in the Constitution (the lack of true Congressional representation for residents of the District of Columbia) that clearly should be addressed by making an amendment to the document instead of the ill-formed Congressional bill that has already passed the Senate. That bill causes the writers to bemone not only the apparent desire of Democrats to reform our society quickly while they wield power, but also the weakness of Republicans to stand against what can only be understood as an attempt to circumvent the Constitutionally mandated process.
And of course, we reflect on our recent discussions regarding similar attempts to wrong a right by leveraging the fact that states are allowed to select Presidential Electors in any way they see fit, and that some, including Iowa, are seeking to circumvent and denigrate the Constitutional model of the Electoral College into a Popular vote. This bill is still under consideration in the Iowa General Assembly, and remains the epitomy of Constitutional contempt. Although I vigerously support maintaining the Electoral College, I would gladly concede its demise if it results from a properly executed amendment to the Constitution, not via a blatantly political end-run. It is remarkable to me that those states that have already approved this approach to gaining the Popular Vote are the very states who will be most negatively impacted by the change.
Make no mistake, there are those who have an interest in setting a precedent for bypassing the Constitution’s protections on many levels, and the D.C. Voting Rights Act and the Popular Vote Compact are two examples of that. And while the effects of the efforts toward Original Intent (driven by Liberal groups) are initially driving to meet Conservative objectives, that doesn’t make it right. All of these efforts are operating with some amount of impunity because they are tending to press a populist or at least strongly popular agenda, but all of them risk taking us down a path that will be difficult to return from. One cannot do what is wrong for the right reasons. This is the antipathy of integrity. If we allow ourselves to take this path we will eventually sacrifice the respect of other nations and ourselves.
Good article… I’m thrilled to find another conservative blog in central Iowa. You’re definitely getting into my daily read and getting onto my blogroll.
“VI That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.”
Virginia Declaration of Rights, June, 1776