I added this post today in an effort to “catch up” since I missed my posting yesterday on account of celebrating my wife’s birthday. Enjoy.
Often times I have heard that the U.S. Constitution is a living document whose meaning changes depending on the age of which we are currently living. This idea cannot be further from the truth. There are several competing beliefs of how we interpret the strict constructionist, and loose constructions. Strict constructionists are often times called following the “Original Intent” of the founders. It is my belief that our Constitution and its amendments must be read with the original intent of the founders in a strict constructionists manner. My arguments are as follows.
First, an example from literature. J.R.R. Tolkien, author of the “Lord of the Rings” books, often said in personal writings and quotes that the book it was story that has many themes and values portrayed within it, but its not to be read as an religious or political allegorical text. Should we go beyond the intent of the author when interpreting and analyzing this fine piece of literature? I would argue that we should not. We have his own words defending the meaning, themes and values of the text. To go beyond that and make up some new analysis that is counter to the author’s intent is a false interpretation of the text. This is how we should also read our Constitution.
The Constitution was completed on September 17, 1787 and submitted to the states for their ratification. Over the next few years it was ratified by all thirteen original colonies and one additional state. During that time period prior to the American Revolution and during the ratification of the Constitution, there was a vast amount of writing about the Constitution and governmental theory. Most of these theories and writings exist today thanks to the invention of the movable type printing press about two hundred years before by Gutenberg (Funny story: The main network printer at my college for my first few years was called Gutey. I swear it took me a couple of semesters to get it). Thanks to the printing press these documents still exist today but are rarely studied in our classrooms. They give us the fullest picture of what was the intent of the founders when they wrote the Constitution. The most prevalent documents I want to refer to are the “Federalist Papers.”
“The Federalists Papers” were written by James Madison, John Jay (Future chief justice of the Supreme Court) and Alexander Hamilton. These documents defended the Constitution and its ratification by the states. It explains why it was needed and some key points that the Anti-Federalists made during the ratification process. These 87 articles give us the clearest picture as to what our constitution means. It is these documents we must consult first, when trying to interpret the Constitution. Why should we ignore the very words used to defend the Constitution in the first place? They are our road map to understanding the original document.
Secondly, we must look at the historical background behind when the words were written. I use this specifically to refer to this historical background of the Amendments. Since most of the amendments were written well after the founding of our nation. I want to use the 14th Amendment as an example. I want to focus my time on the very first clause of the document since it is the most applicable to us today. The other clauses deal primarily with the confederate states after the Civil War and have very little influence on us today.
The first clause of that Amendment reads as such:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The historical fact behind the ratification of this amendment are as such. Previously the Radical Republican had passed the Civil Rights Act of 1886 which made all people born in the United States, except Native Americans, citizens of the U.S.A. They were fearful of the Supreme Court declaring the law unconstitutional so they codified this in the constitution in this amendment. The intent was so that Blacks would be citizens of the U.S., since the Dred Scot Decision ruled that blacks, whether slave or free, were not citizens of the United States. That was the original intent.
Also a key point I want to make in the language of this text. The first phrase makes it clear that the people born in the U.S. or naturalized must be under the jurisdiction or authority of the U.S. Illegal aliens are not technically under the U.S. jurisdiction, they are citizens of another country, under the jurisdiction of that nation. Which is why we deport them when we discover them. The anchor babies of illegals, according to the original intent of this amendment, should not be considered natural born citizens of our nation.
Also, this amendment has been used to incorporate the rights found in the Bill of Rights to apply to the states. But if you look closely at the language you will that the states may not abridge the rights of CITIZENS. Illegals aliens are not citizens and therefore are not afforded the same rights as citizens of the U.S. Constitution. They do deserve due process and equal protection of the laws, but not the same rights.
The point I was trying to make is that the original intent of the writers of the Constitution and its additional amendments should be consulted and used to understand the language and use of the Constitution. Just like we should consider the words of J.R.R. Tolkien when interpreting “The Lord of the Rings.”
During this whole debate on health care reform the idea of unconstitutionality has been thrown around by both sides of the aisle. What scares me is when I hear people say that we can find a way to defend it in the constitution later; lets just get it passed now. These people take an oath to support and defend the Constitution against all enemies, both foreign and domestic. When they have to look to defend a law later then we have serious problems of how we understand the Constitution. Like where is it authorized that the government can regulate schools, give money to foreign nations, or mandate we buy something?
The fact of the matter is none of these powers are expressly given to Congress in the Constitution, nor can they be reasonably implied if you understand implied powers correctly. (Check out this blog posting on that topic for more information). It is time we returned to the tried and true principles and powers granted in the U.S. Constitution, that we ask all leaders to follow it to the letter, and vote only for people who will truly defend it.
Thanks for listening and have a nice day. As always comments are welcome.