Time Magazine: Does It Still Matter by Richard Stengel


This week when I got my mail the newest issue of TIME magazine what should assault my eyes?  The wonderful image of the Constitution being shredded and the question “Does it still matter?” being asked by a the author and publication.  The author is the managing editor of TIME and also wrote a small piece in the Inbox of this week’s issue.  This article is a response to that question.  
CITATION NOTE:  Any direct quotes will are taken from the article itself and are the property of TIME magazine and the author Richard Stengel

[Regarding what the founders gave us] the idea that a black person was three-fifths of a human being, that women were not allowed to vote, and that South Dakota should have the same number of Senator as California, which is kind of crazy.

This sentence is full of historical fallacies its not even funny, but that’s par for the course in this article.  First, the three-fifths clause was not stating that imported black slaves from Africa were any less than a person than the other people of the United States.  They were only to be counted as three-fifths of a person when it came to the census and apportioning members to the House of Representatives.  The other two options before the compromise.  One, count the slaves and give the slave holding states an enormous advantage in the House of Representatives.  Two, many slave owning delegates, like George Washington, argued for not counting the slaves to help end the practice sooner, since once they were freed they would be counted in the census for representative apportionment.  So they reached a middle ground, they could count them as part of a person ONLY FOR THE CENSUS WHEN DETERMINING REPRESENTATION.  Their is no implication that this was meant to mean they were only three-fifths of a human being. This issue is dealt with in a past article on this blog.  Check it out.

Secondly, women did not have the right to vote in any society during the eighteenth century.  The idea of denying women the right of suffrage women did not start in the U.S, but the start of the women’s suffrage movement in the U.S. started even before the Constitutional Convention.  Abigail Adams told her husband after signing the Declaration of Independence to not “forget about the women.”

Third, the whole purpose of giving all states equal representation in the Upper House of the U.S. Congress was the result of the Great or Connecticut Compromise.  This was the most contentious argument of the entire Constitutional Convention.  It was put in place to protect the states with smaller populations from the larger states.  It is recognition that not only do the people need to be represented but so do the states.  The idea that the individual states are no greater or lesser than each other in the country so they should be represented equally in the legislature.

“The Constitution was written explicitly for one purpose–to restrain the federal government” (Ron Paul).  In fact, the framers did the precise opposite.  They strengthened the center and weakened the states.

The author is right on one point but wrong on the other.  The constitution  was written to strengthen the federal government because of the weaknesses of the Articles of Confederation.  He is wrong in that it weakened the states.  If you were to do even some cursory research on the views of the founders and their views of state’s powers in relation to federal power, even they would say in the unamended Constitution that the states have more power.  The Constitution had very specific and explicit powers.  Anything that was not directly forbidden by the Constitution belonged to the states.  They could write laws about everything else not expressly mentioned in the Constitution.

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.

Everyone I meet that misreads this one section of the Constitution.  In fact, I did a whole article on this one clause several years ago.  This does not expand the government’s power in any way, shape or form.  It only allows the government to make additional laws to carry out the powers in this Constitution.  It does not state they can change the meaning of the words, or add any authority not already explicitly given.  It limits to government only to those things already listed.

The War Powers Resolution is a check on presidential power, but the President seeks to balance this by, well, ignoring it. That’s not unconstitutional; that’s how our system works. The larger question is whether the War Powers Resolution is constitutional.

If the President is ignoring the law and refusing the enforce it, his actions are unconstitutional.  He swore an oath to faithfully execute the office of President, which includes enforcing all federal laws, even the ones with which he does not agree or like.  The War Powers Resolution is federal law; he is in violation of the laws of this nation and his oath of office.  The War Powers Resolution could very well be deemed unconstitutional by the Supreme Court in the future but it has not yet and until such time it is valid U.S. law to the enforced by the President of the United States.

The government does require us to pay taxes, serve on juries, register for the draft. The government also compels us to buy car insurance (if we want to legally drive our car), which is a product from a private company. George Washington once signed a bill asking Americans to buy a musket and ammunition.

The first three powers mentioned by the author are clearly expressed powers in the Constitution. (Taxes = Article I, Section 8, Paragraph 1; juries = Article III, Section 2 under the necessary and proper clause; draft = raising and maintaining an army and navy, Article I, Section 8, Paragraph 12).  The last one is a power of the state governments not the federal.  This is one of those areas where the state governments are superior and more powerful than the federal government.  There is no authority granted in the Constitution to force someone to buy a product.  I challenge someone to find and share the authority.  Also, the whole point of requiring a person to purchase auto insurance is to protect the people who are not at fault in an accident.  Lastly, Washington asked Americans to buy a musket, he did not require them by law, to do so.

No one really disputes Congress’s power to regulate interstate commerce, and it’s silly to argue that health care — which accounts for 17% of the U.S. economy — doesn’t involve interstate commerce.  Your doctor’s stethoscope was made in one state and was shipped to and sold in another.

Just because a piece of medical equipment is made in one state and shipped to another does not give the government the authority to regulate that company or even one-sixth of the U.S. economy.  Health insurance is not  interstate commerce.  I am only allowed to buy health insurance from companies allowed to do business in my state.  Some states have only one company their citizens can buy from.  Congress would have the authority to write a law that stated any health insurance company, could set up shop in any state, as long as they follow the appropriate state laws.  That would be in the spirit and original intent of the Founders.  The interstate commerce clause was to ensure free and unrestricted trade among the states in the Union.  Meaning one state cannot stop a company from another state from doing business in its border.  Its intent was not to give the government authority to regulate any business that makes widgets in one state and ships them to another.

But what happens when that healthy, young uninsured woman goes skiing and tears her anterior cruciate ligament and has to have emergency surgery? She can’t afford to pay the full fee, and the hospital absorbs much of the cost.

That is one thing you could do.  The other thing is you could make the person responsible for paying the bill.  Allow hospitals to go after those who do not pay their bills.  It is a matter of personal responsibility; you run up a bill you have to pay for it.

The remedy for bad laws is elections.

Which explains the “shackling” the Democrats took in the 2010 midterm elections.  The American people spoke out clearly against the bad laws that were being written in the first two years of Obama’s term.

Some opponents of birthright citizenship argue that illegal immigrants are not under U.S. jurisdiction and therefore their children should not automatically become citizens, but this argument doesn’t hold up under scrutiny.

Firstly, the author never explains why this argument does not hold up under scrutiny.  Seconly, he ignores a large part of the 14th Amendment that explains that jurisdiction.  Let’s read the 14th Amendment:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” The clause clearly states that only the born or naturalized in the United States are citizens and therefore subject to the jurisdiction of the United States.

Another interesting aspect of this Amendment is the last clause: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  What this means is Congress can by “appropriate legislation” define the limits of born and naturalization.  They have done this before.  That is one of the contentions of why birthers argue President Obama is not a natural born citizen.  When he was born his mother may not have been old enough to confer natural born citizenship upon him since his father was not a citizen of our nation.  A colleague stated that when she was in England in the 1960s and 70s she had a kid and her kid was not allowed automatic U.S. citizenship because she was not old enough when she had him to confer citizenship by blood.

It’s equally strange to me that a nation that was forged through immigration — and is still formed by immigration — is also a nation that makes it constitutionally impossible for someone who was not physically born here to run for President. (Yes, the framers had their reasons for that, but those reasons have long since vanished.)

I have to respectfully disagree with the author for the need for only natural born citizens to be the constitutionally allowed citizens  to run for President.  Even my students in U.S. Government understand the motivation behind this clause.  It was written to prevent the installation or election of a king or other foreign national from becoming President.  It is still important today whether the author thinks those reasons are valid or not.

We need to make legal immigration easier, faster and cheaper so that illegal immigration becomes harder and less desirable.

Agreed but we still need to have good legislation to only allow the best and the brightest to be welcomed here.  We still need to keep out the criminals and others, which Congress has the authority to do under Article I, Section 8.

The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

The Constitution is not “so general.”  Look at the hundreds of documents and newspapers articles that were written, and the speeches that were given during its ratification and you will find the author is so wrong.  The Founders knew what each phrase meant and its meanings can be easily discerned with a little bit of research by looking at these documents, like the Federalists Papers or even the transcripts of the Constitutional Convention by James Madison.  And that is the major problem I have with this author. He states in “What Would the Framers Say?” from the Editor’s desk feature earlier in the magazine:

Politicians ask all the time, What would the Framers say?  The truth is, we don’t know, and they’re not around to prove anyone wrong.

WRONG! WRONG! WRONG!  As I stated above the founders words and intent can be found with a little bit of research.  The Founders may not have known about airplanes, terrorist attacks, the internet, Ipods or anything else that has sprung up in the 222 years since the ratification of the Constitution.  I guarantee the principles, intent and solutions behind all of these modern problems and items can be found in their writings.

They gave the government specific powers of foreign relations and commerce both with foreign nations and between the states.  That was their main goals at the convention:  protect the nation from foreign invaders and from internal squabbling.  Let me give you an example of how modern issues can be solved with original intent with the Internet and its appropriate commerce.

Did you know when  you buy a product from Amazon, in most states you are still required to pay the state sales tax even if the company did not already charge you that percentage?  Now you do.  The Constitution was written to help free and unrestricted trade among the states, under Article I, Section 8.  Congress has the authority require force internet based companies that operate in the U.S. selling goods and services to incur that sales tax on the citizen that bought the item and submit that tax revenue to the appropriate state.  My wife and I had a discussion on this about how do you determine what state sets the tax rate and receives the revenue.  My contention is that the state where the person is buying the product is the state with the greater jurisdiction, even if it is shipped to another state.  If buy a product here in Nevada and then move it to another state I am not required to pay sales tax again.  There is one example; give me others and lets work on them together on whether Constitution deals with that inside is words.  And if it doesn’t then those are the nearly unlimited powers of the state and local governments.

Point being, the Constitution still matters.  It is the rule above all rules in our nation.  If it does not matter than the limits on the government and protections it provides the citizens of this nation do not matter.  We are a people not bound by ethnicity or nationality, but by this document its limits on the government and its protections regardless of the era in which we are living.  But one thing to remember is even if these document did not exists…

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,that among these are life, liberty and the pursuit of happiness.  That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security.

Questions?  Comments?  Concerns?  Thanks for reading and lets all wish a happy 235th birthday to the U.S.A.!  Class dismissed.

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