Contrary to the assertions of critics of the original intent approach to the Constitution, super majority rules, such as requiring a two-thirds majority to amend the Constitution, “tend to produce desirable constitutional provisions” such as granting blacks voting rights and women as well, Michael Rappaport, a law professor at the University of San Diego, said recently in remarks at the Cato Institute.
Rappaport coauthored the recently released book, Originalism and the Good Constitution, with John McGinnis of Northwestern University’s Law School, who also appeared in the seminar at Cato. McGinnis also noted that the problem with the original Constitution, regarding the exclusion of blacks and women, “has largely been corrected.”
McGinnis said that critics of the original intent interpretation of the Constitution have “an objection to constitutionalism.” To them, the “dead hand theory,” as it is known among law professors, “doesn’t make a lot of sense,” said McGinnis.
Critics contended that writing the Constitution was far easier for the Framers while they were writing it and could avoid the problems we face today like needing a super majority to change the Constitution. But, McGinnis said the writing process for the document “was a serious super majoritarian process.” The resulting “informal advantage” of the framers “is inevitable in a world where time goes one way,” said McGinnis, “We reap the advantages of the stability [that] the Framers gave us.”
But, McGinnis said that we must take into account the alternatives: We abandon the current Constitution and write another, or we enforce the current document and make corrections, or we enforce the “imperfect Constitution” as it is without making changes. “It’s very difficult to suggest that we go with a whole new Constitution,” McGinnis said.
Although the Constitution may seem outdated, Rappaport said that it would require significant time and resources to map out a detailed analysis of the Framers’ intentions when the Constitution was written. McGinnis said, “The Framers never forgot that it was a constitution that they were creating” and built a mechanism for change within the document . Federalism, which gives states flexibility, “can have tremendous benefits for liberty.” Like Rappaport, McGinnis said that concentrating power in the hands of a few (such as the Supreme Court), “makes people suspicious of the amendment process.”
He criticized the judicial branch, particularly the Supreme Court, because their decisions are not super majoritarian by nature. Instead, the Supreme Court justices rely on past court decisions to interpret the cases of the present.
“Every word of a constitution is the difference between power and freedom.”- James Madison
Since we’re studying the Constitution in the next week or two, I wanted to look at places where you might find this document, written over 225 years ago, still relevant in your lives.
As you know, the Constitution is broken up into several articles which describe the powers of each of the branches of our federal government – legislative (Article 1), executive (Article 2), and judicial (Article 3). The document is further broken down to amend some of the weaknesses of the Articles of Confederation, like the economic, social and political relationships between the states (Article 4), the amendment process (Article 5), supremacy of the Constitution over state and local laws (Article 6), and the process by which this framework document would be ratified after the conclusion of the convention in Philadelphia in 1787 (Article 7).
One of the main criticisms of the Constitution, when it was originally written, was that it did not contain a list of accumulated civil rights that each American has, and so quickly the Bill of Rights was added as a further bulwark to prevent abuses. The first ten Amendments to the Constitution contain many of our essential rights, like the freedom of speech, religion and press; the right to bear arms; right to privacy and to be free of unreasonable search and seizure; a speedy trial by jury of our peers; due process; prevention of excessive fines and punishments; and then rights reserved to the states and individual.
Since 1790, there have been 17 additional Amendments passed to further clarify our rights, provide additional guarantees to our liberties, or to make amends for those left out by the original document and the Bill of Rights. Some of these include the right for women and African-Americans to vote, the failed attempt at Prohibition, lowering the voting age, term restrictions for the President, income taxes, and direct election of U.S. Senators.
But where do we see the Constitution in action? Just about everywhere you see it in action, though you may not realize it. In the separation of state, local and federal powers, you see the concept of federalism. For instance, different levels of government may have paid for road repairs – a big source of frustration in Michigan. The presidential election coming up in November is mandated by the Constitution, yet there’s nothing in there about political parties or the billions being collected and spent by both groups and their supporters. A Supreme Court case in 2010, Citizens United v. FEC, allowed for the unlimited, record-breaking spending that we’re seeing in this year’s election cycle. In addition, the right to vote is guaranteed by the 15th and 19th Amendments, but some states are trying to make it more difficult for people to vote in the name of voter fraud. State supreme courts have been deciding the legality of these ID voting laws as we speak.
The current health care act, Patient Protection and Affordable Care Act (“Obamacare”) is being challenged in the Supreme Court on Constitutional issues – how much power should be allowed by the federal government. http://www.washingtonpost.com/politics/supreme-court-considers-main-constitutional-question-in-health-care-law/2012/03/26/gIQAkyKWdS_story.html
Another issue was whether or not children born in the United States are actually citizens if they are born of parents who are here illegally. http://constitutionalprogressives.org/the-constitutional-a-todays-issues/79-born-under-the-constitution-why-recent-attacks-on-birthright-citizenship-are-unfounded These so-called “anchor babies” have come under attack by conservative critics who question the legality of the 14th Amendment (1868) which was originally passed to ensure citizenship and equal protection under the law for freed slaves after the Civil War.
What does “general welfare” mean in the preamble and in Article 1, Section 8? Does it mean that the government helps individuals who are down on their luck? Is the government going beyond its Constitutional powers by doing so? Does Social Security violate the Constitution? Former House of Representative and presidential candidate Ron Paul thinks so even though the Supreme Court has approved of Social Security in 1937 (Helvering v. Davis). http://www.nolanchart.com/article8669-ron-paul-schools-chris-wallace-on-the-constitution.html If Social Security is to be considered unconstitutional, then what other kinds of spending programs also go beyond the limits of our government’s powers? The American military? Welfare? Medicaid? Even some parts of the government itself?
What these arguments really boil down to are whether you interpret the Constitution as is or you try to infer what it could mean today (or what the Founders had originally intended)? The first concept, as is, is called strict interpretation. The latter concept, inferring, is called loose interpretation. For instance, the 2nd Amendment states that our right to bear arms is protected. But by today’s standards, are any and all gun laws unconstitutional? What about the types of guns today? It’s hard to imagine Alexander Hamilton or James Madison envisioning a .50 caliber machine gun that could cut cars in half and them saying that it’s o.k. to own one.
This current law professor at Rutgers University believes that some of our current governmental problems can be solved by some amendments: http://blog.nj.com/njv_guest_blog/2011/08/constitutional_amendments_need.html
Take a moment or two to review some of the links included here to discuss where you think the Constitution is still relevant today. If you come up with another idea, please include some links to sources that you find / use. Also, discuss this topic with your parents and see what they come up.
Due Friday, October 12 by class time. 300 words minimum.
Info about the VFW contest:
https://www.vfw.org/uploadedFiles/VFW.org/News_and_Events/2012%20VOD%20Winning%20Speech.pdf = example of last year’s winning essay. The theme was, “Is there pride in serving in the military?”
Posted October 10, 2012 by geoffwickersham in category Blogs