Tuesday, June 28, 2011
Making a Fetish of the Constitution
The next time you hear someone rhapsodizing about the sanctity and brilliance of the U.S. Constitution, you might want to ask a simple question. Would anyone outside a lunatic asylum be saying such a thing if the South had won the Civil War — as it very nearly did?
Of course not, and to ask that question is to raise a point that ought to be fairly obvious. The Constitution has survived as long as it has and served as well as it has because subsequent generations were able to interpret it in light of their times and change it when necessary.
The outcome of the Civil War enabled passage of the 13th, 14th and 15th Amendments, which outlawed slavery, established the principle of equal protection under law and forbade racial discrimination in voting. It took another century to make that last one a reality, but let’s not quibble. Would a Constitution without those amendments (or the ones empowering women to vote and popular election of U.S. Senators) carry any moral weight today?
There really isn’t any other way to say it — the Founders punted the issue of slavery to posterity. Historians of a sharply leftist bent tend to be critical of that decision, but it was probably the best they could have done. Lucky for our country and their reputations that Lincoln came along when he did.
It is often assumed — wrongly, I believe — that the purpose of the Constitution was to limit what the federal government could do. More accurately, its purpose was to limit the damage that could be done by individuals, factions, and popular sentiment run riot. It was not so much about creating a narrow definition of the government’s role as it was about creating a process, full of checks, balances, and speed bumps, to ensure proper deliberation and a cooling-down period before government acted.
James Madison, widely regarded as the Father of the Constitution, came to the convention of 1787 determined to get a document that would allow the federal government to override any state law that was deemed inconsistent with the new constitution. He had George Washington on his side, but the states-rights crowd wasn’t having any of it. Madison later flipped on that point when he realized that a strong central government would probably speed the end of slavery. Three decades after his death, slavery ended and the 14th Amendment pretty much incorporated his original idea.
A liberal and broad interpretation over the years has also been essential to the continuing utility of the Constitution, and that sort of expansive approach has been aided by the vagueness of the document. Consider the following sentence from Alexander Hamilton’s “Report on Manufactures” to the U.S. Congress December 5, 1791. Arguing that federal support of manufacturers was permissible under the general welfare clause of the Constitution, Hamilton wrote:
“The terms ‘general welfare’ were doubtless intended to signify more than was expressed or imported in those (powers of Congress) which preceded; otherwise numerous exigencies incident to the affairs of a nation would have been left without a provision.” In other words, Congress can do just about anything it deems necessary or desirable for the common good.
Interestingly, when the Constitution was being debated, the vagueness of the general welfare clause was one of the things opponents pointed to as giving the new government too much power. They were right about the vagueness, but wrong about the too much; the process has pretty much kept that in check. But the anti-Federalists’ arguments live on today, most prominently vocalized by the contemporary Tea Partiers, who, ironically, profess their undying love for a Constitution that exists mostly in their imaginations.