Loose Constructionism and the United States Constitution
A couple of weeks ago, Justice Antonin Scalia gave a speech about the Constitution (http://www.foxnews.com/politics/2014/03/15/justice-scalia-constitution-is-not-living-organism/) in which he claimed that the Constitution is not a living document. There are those who argue that it is, referred to as loose constructionism. We live in a day and age where the Constitution is constantly under fire, and the interpretation is based on whim, depending on the agenda.
Take Obamacare, for instance.
The whole purpose behind universal healthcare, or Obamacare, is constitutional, supporters claim. It falls under the General Welfare Clause:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The Founders did not mean the government should provide for healthcare, only they should provide for the general welfare. By general, they meant general health (making sure the food supply isn’t making people sick, etc), general happiness, and the ability to work, be educated, be as safe as we can and to live free. It is not, as some have suggested, the concern of the government for us to be moral. You want to be moral? Go to church. Leave it out of the government.
One of the key phrases in the Constitution is whether a bill is Necessary and Proper, something that is never debated today. The President has taken to issuing executive orders in place of law passed by Congress to try to move his agenda forward. The Constitution not does not give him this power, but doing this would be considered, as James Madison put it, unnecessary and improper. Does it become an impeachable offense? Probably not, and it needs to be challenged in front of the Supreme Court to put a stop to it.
For example, is Social Security necessary? Is it Proper for the Federal government to be behind this program?
If we already have these programs in place for the elderly and the poor, why do we need Obamacare? Aren’t most of the people signing up being sent to Medicaid anyway? So why do the rest of us have to purchase health insurance if we don’t want to?
The problem stems from this concept that the Constitution is a living document, a document that changes in meaning as society changes. I had a long discussion with a local radio personality about whether the Constitution was a living document or not. It was his contention that since the Constitution could be amended, that makes it a living document.
In reality, that is not what it means when someone refers to the Constitution as a living document.
Take the Second Amendment, for example.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Today, schools are trying to teach that you have the right to keep and bear arms, only if you are in a militia, only if you register them, only if you have not been in prison, and it restricts you to only certain types of weapons.
Wow. Does anyone else see all that in those words?
As I pointed out in my section on the Second Amendment (under the Meet the Constitution tab), the States feared that the Federal government would stop funding the State militias, leaving them defenseless against invaders, and the government itself, not these crazy stories about fearing slave revolts or squads of men hunting fugitive slaves. After all, New York, a State that had abolished slavery, was one of the primary forces behind this amendment. Yes, it means that people in each State can keep and bear arms for defense, self defense; defense of the community, defense of the State, and if needed, defense of the nation. That the State militias were evolved into the National Guard does not render this amendment invalid. The key words are shall not be infringed.
I’ve argued before that the Second Amendment does not limit the types of arms you may own, arguing that it includes cannon, aircraft, tanks, and explosives. Of course the government disagrees with that, but they have their own agenda. I found this interesting website that explains the Constitution to kids, and found this under the Second Amendment:
Bear arms: When the Second Amendment was written, arms meant weapons. [Editor’s Note: It still does] The word arms did not necessarily only mean guns, but it definitely included guns. The Second Amendment did not specifically explain what categories or types of arms nor did it list what weapons were considered arms. When you bear arms, this means you physically carry weapon. You may have arms in your home as well as on your person.
Shall not be infringed: The Second Amendment does not grant any right to bear arms. Furthermore, the rest of the Bill of Rights does not describe any right to do so. These rights are thought of as natural rights or God-given rights. In the Bill of Rights, the Second Amendment is just a reminder to the government that they should not try to stop people from having this right.
What they said is true, to a point, but they stopped short. The Second Amendment does not categorize weapons, because there are no categories. A weapon is a weapon, this goes for a rifle as well as a cannon. Plus, they are incorrect about their definition. To bear does mean to carry, but it also mean to bring, to possess, to have and to use. And the Second Amendment is not a reminder to the government, it is a prohibition upon the government to keep them from taking the arms from private citizens.
This is the idea of a living document. The notion that we can change the meaning of the words by parsing commas and semicolons, or in the case cited above, by leaving out certain definitions. That we can sit here and say that the Founding Fathers only meant muskets, which is an absurd notion, considering, by that logic, the First Amendment does not apply to social media, the internet, television, radio, etc.
Is not the FCC, government controllers of the airwaves, an anti-First Amendment agency? Does it not say that there are certain things you cannot say on broadcast television, or on the radio, and fines you if such things are said?
I know people who say that the Second Amendment should be abolished, that if we take all of the weapons from law abiding citizens, then somehow, criminals and murderers will never get them. This too, is absurd and naive.
As with most things, people don’t ask “is this Necessary? Is it Proper?” They just jump on the party bandwagon and off they go.
People spend too much time parsing the words on the paper that they tend to forget that the Bill of Rights is not a be all, end all list of rights, and those rights are not subject to the whims of the government.
We tend to forget the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Just because it is not listed in the Bill of Rights does not mean that other rights do not exist.
But it isn’t just those on the left who do things like this. I have friends on the right who do this sort of thing as well.
Let’s go back to the Second Amendment.
California is putting several gun control laws into place. My friends on the right are screaming “California is violating our rights!”
Here’s the problem. The Second Amendment applies only to the Federal government, unless otherwise specified! If you look at Article I, Section 10 of the Constitution, the States are specifically forbidden from doing certain activities:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The Bill of Rights are a set of guarantees that the Federal government shall not do certain things. In other words, the States are not required to guarantee your right to bear arms. Why not?
The Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The problem extends back to the Warren Court of the 1950s and 60s, when they began to apply the whole of the Constitution to the States. This is a gross misinterpretation and misrepresentation of the United States Constitution. They took the concept of the living document to a whole new level.
While I think that what California is doing is wrong, I think the government is well within its power, until such time as California’s constitution is amended. If the United States Constitution applies to all of the States, what is the point of each State having its own Constitution?
Connecticut, on the other hand, is violating its own Constitution by even threatening citizens who don’t register their arms with confiscation and imprisonment. Connecticut does guarantee the right to keep and bear arms.
The Constitution is not a living document, to be interpreted as we see fit. There is no need to divine the Founders intentions, it is all right there in plain English.
But it is also not a document of convenience, that it somehow does not apply when it doesn’t fit our world view.