A Constitution Beyond Interpretation

In a flight of fancy we are discussing an America that has taken a slightly different path. What if the Founders included a basic list of definitions as an appendix to the Constitution; definitions that eliminated any possibility that the true meaning of the Constitution would ever be subject to interpretation? That would give us a Constitution that would remain intact unless altered by the rigorous and prescribed method of amendment that the founders intended. This would have insured that the Constitution would forever remain the rigid armature of the Republic while retaining the ability to remain dynamic in response to an ever changing world.

Those definitions would have made a world of difference. If we research through the Federalist Papers, the founders had enunciated their ideas quite clearly and their intentions are well known even today. Unfortunately, legalists have chosen to ignore that treasure trove of information simply because those intentions were never actually written into the Constitution. The Constitutional scholars have spent nearly as much time navigating between each word of the Constitution to justify alternative law as they have learning the law itself. Just as a worm would weave in and out of the garden soil, these lawyers have laced the Constitution with holes of nothing but semantics; skirting the truth to inflict their own mark upon society.

Roscoe Pound devised his theory of sociological jurisprudence and legal realism at the turn of the 20th Century. Sociological jurisprudence is the school of thought that allows the interpretation of legal language and therefore laws, in contemporary terms. Through sociological jurisprudence, one could alter the law without actually having to go through the legal wrangling of convincing lawmakers to rewrite it. A perfect example of the modern use of sociological jurisprudence is the Constitutional authority to “Regulate” commerce. To regulate, at the time the Constitution was drafted, simply meant to make regular or to make uniform. It was meant to enhance commerce between the states through a uniform standard of currency and through trade laws that would make commerce between any of the states fair and equitable. As time passed, the word “regulate” slowly had additional meanings applied to it including “to license, oversee or control through regulation”. Since the word “regulate” had assumed multiple meanings and there was no clear definition in the actual Constitution, the entire commerce clause was left open to interpretation using any one of those definitions.

Of course we know that today the United States Congress has made a mockery of free trade through their liberal interpretation of the “Commerce clause”. The regulation that Congress prefers is of course, the use of governmental regulations to control, tax and license interstate commerce. FDR used this clause liberally to affect government control of nearly everything during the Depression, including the growth of farm products for personal consumption. Not because that produce was marketed across state lines but because produce grown for personal consumption “may” have an affect on the interstate value of produce if too many people began growing their own food. It was a clear stretch of the imagination and something that would not have been possible without the legal tinkering of one Roscoe Pound.

Pound’s other assault of “Legal Realism” postulated that since man was flawed, that any law written by man was potentially flawed as well. For the first time, the Constitution was under scrutiny; not because of the word of the law and not by using the volumes of information contained in the Federalist papers that spoke not only about the Founders intent but of their character as well. Now the Constitution could be examined based on the sheer speculation that the law possibility contained motives of greed and avarice; that the founders had laced their own interests into the original law and that made modern interpretation a guild-edged priority. For his legal genius, Roscoe Pound was decorated; not by the United States, but by Nazi Germany for giving them the tools they needed to get around some very sticky laws of their own. The real danger in these theories is that the interpretation is left to those in power. Since power is corrupting, these little gems could be used by those in power to justify nearly any action; especially if a crisis warranted the declaration of a state of emergency.

FDR had ascended to the Presidency during the Great Depression in 1933. There is no doubt that this was a time of crisis, even national emergency. Jonathan Alter is a columnist and Senior Editor for Newsweek Magazine. In “The Defining Moment”, his recent song of tribute to his hero, Franklin Roosevelt, Jonathan Alter claims to have made an historical find. He states that in 1932, members of FDR's inner circle had urged the new president to deputize the American Legion. The only purpose Alter could arrive at was for the creation of some form of private army. In prepared remarks to be delivered to a meeting of the American Legion which was also broadcast as his first radio address after his inauguration, FDR was to tell the assembled veterans, "As new commander-in-chief under the oath to which you are still bound, I reserve to myself the right to command you in any phase of the situation which now confronts us." In fact, during his inaugural speech, FDR said quite clearly that he was ready to “assume extraordinary powers if Congress failed to act against the emergency”. This shocking revelation was met with thunderous applaud by the assembled crowd.

Alter's interpretation is entirely plausible for any number of reasons, including FDR's determination to use the World War I-era Trading with the Enemy Act as the legal justification for assuming emergency powers. A memo written at the Democratic Convention by Hugh Johnson, the future head of the NRA (National Recovery Administration) suggested that the entire Congress and Supreme Court be sent into temporary exile while a dictator set the country straight. Liberal Journalist and FDR advisor Walter Lippmann cautioned FDR about the state of the nation and urged him to assume "dictatorial powers." Fortunately for us, Roosevelt recognized that once those steps were taken, the American Constitutional government could never again, emerge intact.

Alter would have praised FDR regardless of what he had found but this time he was on the right side of the issue. Alter’s praise was for the man that resisted the call to assume such awesome powers. Not that it wasn’t tempting for Roosevelt, it was. Having seen the amount of power Roosevelt harvested using the legalist tactic of sociological jurisprudence, he came close enough as it was. Incidentally, I find it ironic that FDR was the descendent of another noted person in history. I don’t mean Theodore Roosevelt; that would be too easy. I mean another relative of great ambition, Benedict Arnold.

Seeing the fragility of the Constitution when it is allowed to be subject to such broad and yes, subjective interpretation, perhaps it is time that the definitions that are so obviously absent in this document are finally added so that we can read it in the context that the founders intended. The Federal government would be responsible for the defense of the United States against foreign aggression. We would not be engaged in “nation building” nor would we enter into wars that were not in direct defense of American territory, resources or vital interests. It would insure that trade between the States was free of corruption and that business between the States is conducted with a uniform currency and a uniform code of laws to insure ethical business practices. It would arbitrate disputes between the States and enforce the Constitutional laws that all States agreed to when they entered the Union. The Federal government, as now, would enter into treaties with foreign powers provided the treaties are ratified as prescribed in the Constitution.

Since the States retained all rights of self governance excluding the enumerated powers granted to the Federal government; there would be no Federal agencies for education, health and human services, labor, environmental protection, social security, agriculture, international development, on and on and on. The complete list can be found here and I strongly suggest you take a look at it since you probably have no idea half of these even existed: http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml

Fear not, the elderly would not perish in the streets, the lakes and streams would not become acidic and disease would not race through the streets. With Progressives, Socialists and extreme Liberals handcuffed by a strong Constitution, the States, being free of oppressive Federal mandates would begin to flourish. The agencies that wastefully consume so much of this nation’s wealth would be gone, freeing that money for economic expansion. Local economies would finally possess the means to provide the services that their residents feel strongly enough to approve through their electoral might. Good ideas never remain hidden or stagnant and as the States test those ideas, the best ones would rise and be sought by the residents of other States. Instead of a one size fits all Federal mandate, States would adopt programs at their own discretion that are tailored to their special needs. Best of all, the people of each State would retain direct control over their destinies instead of being saddled with national burdens imposed by the overwhelming number of number of Congressional representatives from California, Illinois, New York and Florida.

Paul

A Constitutional Government? What a Concept!

Let’s play a game! I’d like to pretend for a moment that the Progressive movement doesn’t exist; that the subsequent Liberals never discovered Karl Marx or Friedrich Nietzsche. Let’s imagine an America where we had the foresight and courage to block Soviet Russia’s attempts to demoralize America by infiltrating the American press, film industries and educational systems. Let’s ponder the future as if our past had followed a course that more closely resembled the government our founding fathers had meant for us to have. Before we can actually play that game, we must start at the beginning with a review of what that government was supposed to look like. Only then can we remap the last two hundred years and perhaps, speculate on the next two hundred.

The people that founded the American colonies were for the most part, British émigrés, people that sought to escape religious persecution or leave the crowded streets of England’s urban centers and seek new fortunes by settling a vast, new and relatively uninhabited land. There were spacious tracts of land and seemingly limitless resources to be exploited by adventurous men that were fit and industrious. Living in a pre-industrial, agrarian world, uses for many of the “new world’s” resources were still largely unknown but they would certainly come into play later. By the time the British colonies were firmly established in America, the Spanish myths about cities of gold had been disproven and fur trade, fertile lands and natural ports were considered to be America’s greatest assets.

While many still traveled back and forth to England, the American born descendants of the original settlers had mostly taken their father’s places by the turn of the 18th Century. They were beginning to create an identity separate from their British heritage mainly because the British Crown treated them as second class citizens. England had fought several skirmishes with Spain since the inception of the colonies and was actively sparring with France on the borders of the American colonies by the time the mid 1700’s had arrived. England had stationed a number of troops to guard the colonies against French incursion but the British Treasury was under pressure and the cost to maintain a protective force in numbers was becoming prohibitive. The English population was already overtaxed and on the verge of revolt so England turned to her second class citizens in America to carry the financial burden of her own protection.

For many, it may seem proper that the beneficiaries of that protection should pay for it but this story could not be written if Britain had not taken that principal too far. Strict limits were placed on the manufacture of American goods so that British made goods would still be in demand. While one new tax after another was levied on colonial trade, the colonies were continually denied the representation in Parliament that British citizens had enjoyed for centuries. The troops sent by England to guard the colonies were slowly assuming the duties of suppressing the anger that was slowly brewing against the unfair restrictions and tariffs. The troops themselves became the center of the controversy as colonists were forced to house and feed the soldiers at their own expense.

All of this would boil over into open insurrection and finally result in a bloody revolt against British rule. The Declaration of Independence would have had no more historical significance than an advertising poster for fertilizing manure had the colonies not defied all odds and emerged victorious. With their independence from England, the colonies would use their proclamation of natural rights and the list of grievances in that declaration to create an entirely new form of government.

The new government would be founded on the principal that man’s fundamental rights descended directly from God and were irrevocable; that these rights had always existed and were not an act of kindness granted by a beneficent government. The basic structure of the government they created borrowed the most historically successful parts from a variety of cultures. It would contain a body of civilian representatives as found in the British Parliament; a Senate as found in the Roman Empire and a democratically elected leader as part of the experiment. All of these would be restrained by law and for the first time in the history of the planet, the word of law shackled the reach government and the citizens retained supreme rule over all of it.

Central to the formation of the new government was the principal that the States remained sovereign and self governing. The Constitution created a governing body that would unify the States while each retained autonomy and that would not be an easy trick. They achieved this through a “bottom up” strategy. The people retained direct control over State government through the electoral process and the State would govern its citizens by laws enacted with the consent of the governed. The individual States would freely enter into a Union of States whose governing body would be comprised of elected representatives from each State and a President elected by the citizens of all of the States in the Union. It would be a Republic, with the electorate selecting representatives based on their principals and those representatives would vote for or against legislation on their behalf.

Each State would have to agree to abide by the United States Constitution in order to enter the Union. The Constitution is a document that not only reaffirms the State’s sovereign rule but clearly defines the powers that the States would delegate to the Federal government; strictly limiting the Federal government to those powers alone. As part of the Union, the States would agree to obey the laws passed by the Federal government so long as those laws pertained to the responsibilities delegated to the Federal government by the Constitution. A Supreme Court was established that would rule on any Federal law that was challenged by a State or citizen that could prove harm.

Curiously, the Bill of Rights were added as the first ten amendments to the Constitution and not written into the original document. It is not that the Founding Fathers considered those rights as an afterthought; indeed they considered those rights supreme. They did not add them because they did not feel they embodied the Federal government with any power sufficient to threaten those rights. We now know the confidence they had in the Constitutional limits placed on the Federal government was overstated and the Supreme Court spends much of its time hearing cases surrounding those sacred rights. While visionaries, the Founding Fathers saw that power is corruptible and did the best they could to see that the Federal government was correctly restrained. What they did not envision were the future generation of Constitutional scholars dedicated to finding pathways around those restraints and that would inevitably bring us to a point where the Federal government it threatening to become the master and not the servant of the people.

The Founding Fathers were geniuses but alas, they were still mere mortals. If they possessed the powers of clairvoyance perhaps they could have avoided the mess we are in today with a simple table of definitions added as an appendix to the Constitution. That would certainly have taken the wind out of the sails of those prominent Constitutional lawyers and closed the loopholes that they are now driving trucks through. Those definitions already exist in the Federalist Papers, a series of letters and correspondence penned by the founders that clearly detail their intent and place the language contained in the Constitution in context. Unfortunately, since those letters are not part of the actual Constitution they bear no weight in the actual review of the law as it is written. Armies of legalist attorneys now argue each and every word written in the Constitution and assign modern interpretations that shatter what were once considered iron chains on the power of the Federal government.

Tomorrow we begin our experiment in earnest. We will imagine that the Founders did include that table of definitions in the actual Constitution and that there is no longer any question as to the role of the Federal government. Make sure you wear a helmet and elbow pads because it’s going to be one hell of a ride!

Paul