December 22, 2005
Congressional Power and the Constitution Game
A little humor can make an important point about the problems with our national government. Recently, SportsPickle.com, a satirical sports newspaper, wrote an article entitled Congress to Investigate Ruling on the Field That It Was a Fumble. This satire points out a sad, but obvious fact: the United State federal government now thinks that every single thing that happens in America is its business.
This satire was reacting to the recent Congressional involvement in the Division I BCS system for choosing college football’s national champion. Seriously, I am not kidding. Congressmen, after getting to be on Sportscenter with their ridiculous steroid hearings, missed the lime-light and decided that whether one team of college kids or another was called a “national champion” was somehow within the powers the founding fathers gave to our national government.
The problem runs deeper than Congressmen’s obsession with attention and sports- it is the fundamental problem ushered in by the New Deal Supreme Court in the 1930s. By relating every aspect of American life to the economy, Congress is allowed to use its so-called “commerce clause” power to reach any object- from species living only in one remote part of one state to a women growing medical pot for her own consumption to a silly game of college football. Thomas Jefferson once warned against using this logic: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who has ever played at 'This is the House that Jack built?'” Two hundred year later, SportsPickle makes the same point- “The NFL is a multibillion dollar industry that plays in taxpayer-funded stadiums… It is most definitely the business of Congress to make sure that they get their fumble rulings correct.”
I started this post off with a silly point, but I end it with a important challenge. Take the Constitution seriously. You may believe in the Endangered Species Act, Social Security and the Department of Education- but ask yourself whether there is anything in the Constitution (actually go read it) that allows the Federal Government to engage in these policies. The real problem highlighted by these frivolous congressional hearings is that few people actually take the limitations in the Constitution seriously anymore. The reach of Congressional power has become a game- and recently, Congress is more and more interested in playing games.
Misha, great point and timely article. Here you tap into the Small Libertarian part of my political psyche.
For me, your article points to a much deeper and more fundamental flaw in our Constitution. FLAW? Did he say FLAW? Everyone knows our Constitution is as flawless as the Holy Bible, right? Well… you get the point.
The flaw is that the Constitution was NOT written to specifically prescribe remedies for national issues of concerns that would arise as the nation evolved. Logically it could not accomodate such a feat, since the Constitution Congress was not made up of crystal ball peering future seers.
So, they did the next best thing. They broadly defined a structure for government that would allow adaptation and evolution of law emanting from a loosely constructed Constitution including an Amemdment process that would allow the Constitution itself to be altered according to the needs and dictates of the American people and their states.
They went a step further to drive home the point by immediately drafting 10 Amendments to attach to the Constitution making it specific for certain realities they perceived in their day about the relationship between the power of government and the rights of the people.
So, your article seems to imply that if we could only return to the initial verbage of the original Constitution, throw out the history of its changes and interpretations, and amendments since its original drafting we would all be much better off.
To that I reply, when you invent a time machine that can place us all back in the 1700’s, I will be fully on board for reverting back to the original Constitution and views of it during that time.
The essence of your argument is turn back time. That of course, is not possible even if the will to was there, and its not. No, the prescription for what ails America is not ignoring history and evolution of our society over the centuries. The prescription for what ails us, is new amendments, or at least mandates at the election polls by clear majorities of the American populace, to restore the central theme of our Constitution: Government of, by, and for the people.
That can happen, but, only if the electorate dump incumbents and in their place, elect politicians who are representative of the people. In other words, dump incumbent lawyers from office, and elect plumbers, electricians, school teachers, and small business entrepreneurs. Then we will have government of, by, and for the people once again.
Until that time, we will continue to have government of the wealthy and powerful, by the wealthy and powerful, and for the wealthy and powerful.
Posted by: David R. Remer at December 22, 2005 04:38 PMP.S. lawyers should be hired by the lay people to instruct them. Lawyers never should have been put in charge of the process of making the very laws they serve up to the lay public. The laws of this land should be decided by the lay public, and represented by lawyers only when such laws contradict each other or lie in dispute with the Constitution or legal precedent. The notion of lawmaking decided by the lawyers instead of the public at large, was a huge turn away from the design of our government originally fashioned.
Law is but one subset of a body of knowledge known as the humanities. Our founding fathers were men of letters, with broad education in arts, philosophy, business, and history. Very especially history. They were not specialists. They were generalists, capable of wholistic thinking which produced wholistic solutions like how to found a nation and a Constitution for the greatest benefit of all persons of that nation at that time.
It is up to us to refashion this nation and Constitution wholistically, for the greatest benefit of all persons of our nation in our time. This is precisely why the founding fathers designed judicial interpretation and an amendment process into the Constitution.
Misha,
A Lawyer once tolf me that it was the duty of a Lawyer to make money for our society. However, I laughed at him and said that a Lawyers job is to find ways within the Laws of the Land to allow me as a Consumer to have what I need and want for that was my right as a Citizen.
Although I am spliting hairs at that point, it does show the natural gap that exist in the Human Mind when it comes to governing by the Judgement of The Law of the Land. For the items you list as complaints only shows the side of “I the Corporation” that our Elders placed over the Law; however, or I should say because of our willingness as a Society to be industrailist this programs are put in place to ensure Equal and Fair access to the Market (i.e. “I the Consume”) does it not?
Congress and Society being blinded by the Truth might learn someday that the easiest way to solve today’s problems is to design and build our Government and Society so that it serves us not Humanity serving Society like many still today want to claim. Because can you give my one good reason that by Civil and Constitutional Rights the “Poorest Consumer” who adds positively to the function of society should be refused the right to be a potentail economically viable customer to all American Corporations? Thats the difference between a Lawyers view of the Law and a Layman’s Right to Survival.
Posted by: Henry Schlatman at December 22, 2005 10:14 PMDavid:
“Everyone knows our Constitution is as flawless as the Holy Bible, right?”
Well, clearly W doesn’t have quite so high of an opinion of it. Despite the fact that the president is supposed to ‘preserve, protect and defend the Constitution of the United States’, its become painfully clear that this administration thinks that this “piece of paper” which was designed to be the guarantor of our liberty can be easily circumvented whenever they say so, just because they want to.
“The flaw is that the Constitution was NOT written to specifically prescribe remedies for national issues of concerns that would arise as the nation evolved.”
Jefferson strongly advocated having the Constitution evolve with us, but like a few other wise and brilliant ideas the man had, he met enough resistance so that nothing ever came of it. His idea was that America should examine and then possibly alter the Constitution to reflect the progressive views and ideas of each succeeding generation — and set the timeframe for that to take place every nineteen years (not sure why he didn’t just round it off to twenty, but for some reason that was his conception of the correct number of years).
“No, the prescription for what ails America is not ignoring history and evolution of our society over the centuries. The prescription for what ails us, is new amendments, or at least mandates at the election polls by clear majorities of the American populace, to restore the central theme of our Constitution: Government of, by, and for the people.”
I agree. But what are some of the people to do when ideas seem to be going backward rather than forward? This president’s ideas about amendments have been more geared toward taking away rights, or reinforcing narrowminded prejudices in order to deny rights to some people, rather than to initiate progress or expand rights. And his party has a media/propaganda machine that has been steadily endorsing these ideas and marketing them to the people. In Bush’s world and among his followers, obviously all men and women are NOT created equal, nor are they considered equally deserving when it comes to life, liberty, and the pursuit of happiness. What is a minority supposed to do if rather than restore the central theme of our Constitution, they instead convince a majority to actually abandon our founding priniciples with their Amendments?
I can’t help but think that if it was made easier to amend the Constitution, things might become one hell of a lot more contentious than they currently are.
Adrienne, I would not advocate making amendments easier either. I would just advocate more attempts to pass them. Such actions would tend to settle issues. If it passes, it is settled. If it fails, it is settled.
Posted by: David R. Remer at December 23, 2005 01:17 PMDoesn’t look like our comments to Misha piqued his interest in responding.
Posted by: David R. Remer at December 26, 2005 08:06 AMDavid- I apologize, as I was off skiing with my family over the last 3 days after this post.
The major problem with David’s analysis is that it leaves no room for principled constitutionalism. If the constitution is supposed to CHANGE WITHOUT AMENDMENT, then the entire amendment process, and the very idea of having a written constitution, becomes useless.
In that case liberals can “change” the commerce clause to mean anything the federal government wnats. Bush can change the fourth amendment to not include foreigners. After all, the war on terror is a new paradigm, so why cant that “change” the Constitution if we think it is supposed to “evolve”?
You see, this comes together with Adrienne’s point rather nicely. Bush doesnt respect the constitution- but clearly liberals have no way to attack him because they have long abandoned the constitution in their quest for unlimited government power via the commerce clause. We need to restore respect for the entire constitution, by both parties, and not just the parts that you happen to like.
Finally, the founders did NOT design two processes to change the constitution, as david hints. They designed one- Article V ammendment. Any other change is just twisting the Constitution and making it something it is not to fit your temporary political goals.
Posted by: Misha Tseytlin at December 27, 2005 05:35 PMMisha said: “If the constitution is supposed to CHANGE WITHOUT AMENDMENT, then the entire amendment process, and the very idea of having a written constitution, becomes useless.”
Of course the implication of your position is that we should lower the hurdles for amendments and permit far more swaying of political opinion to direct government to and fro. For a government which is not adaptable to rapidly changing times, will inevitably become an outlaw government out of necessity.
Please quote my text implying two processes to change the Constitution. The Constitution was written for a society that no longer exists in so many ways, Misha. They had no intellectual property rights issues like we face today, they had no instantaneous non-secure and unregulated internet to contend with. They didn’t have 50 states and 296 million citizens to contend with or even contemplate at that time.
Interpretation of the Constitution to accodate circumstances and problems between citizens and their government undreamed of in the 18th century is the only alternative to Constitutional Amendment, unless, you want to make Constitutional amendments easy and a bi-annual affair as now occurs in the rediculously constructed Constitutional state of Texas. Here in Texas we have a nightmare of amendments revoking and amending amendments layers deep and no one knows which way the Constitution is blowing from year to year.
A few months ago we had a Constitutional Amendment to allow a municipality to sell public land. How absurd is that? Necessary because of previous amendments regarding public trusts, which amended former amendments regarding imminent domain. It is a hugely, hugely wasteful method of public resources to allow such easy and drifting amendments to a Constitution, not to mention making the very Constitution itself unknowable by any single person or organization.
Posted by: David R. Remer at December 29, 2005 03:38 AM“This is precisely why the founding fathers designed judicial interpretation and an amendment process into the Constitution.”
This is the text I was referring to. Nothing, absolutely nothing, in the the constitution can reasonably be read to give our government unlimited powers which it currently has under the “interpritation” of the commerce clause. You complain about too many amendments if we lower the hurdle- currently we have amendment via supreme court “interpritation”. The Constitution is a worthless paper protection of our liberty if 9 judges can strip away its protections and safegaurds because they feel the times have changed.
We have 9/11, so lets say freedom of speech, Habeas Corpus ect. ect. really “mean” no protection at all. This would be the intellectual equivalent of what the Supreme Court did with the Constitution in the face of the great depression.
The Constitution only works when we respect it and the process it set up. If we allow “intepritation” to change what the Constitution requires, we have no Consitution at all- just a parchment that sits in Washington, that people pay homage to while spitting on it.
Posted by: Misha Tseytlin at January 1, 2006 11:52 AMMisha, then the only other option is to lower the hurdle for Amendments, allowing law to sway with public wind breezes.
It is indeed one of the weaknesses of our Constitution. Great as it is, it is not perfect, especially when one asks it meet challenges centuries later.
Your choice would limit growth and evolution of our society. My choice opens the door for, as you say, 9 Justices to amend the Constitution for 294 million people who get no vote in the matter. Welcome to the concept of a Republic. We voted for the Presidents and Senators who chose the Justices, and that is our vote on this matter. Now we have to live with our choices.
Posted by: David R. Remer at January 3, 2006 07:22 AM
