My Convultued Views on Stict & Liberal Constructionists in Regards to Original Intent


A few days ago there was an interesting discussion on Facebook about the views of Ron Paul. It devolved away from the views of candidate into the different methods of interpreting the Constitution. After a long discussion, a revelation about my opinions on was clearer in my mind. Maybe this article will explain more clearly where I was coming from and give a clearer understanding of how I interpret the Constitution and governmental power. Because in all honest all three views listed in the title have a valid and effective meaning for interpreting the Constitution, limiting and expanding the powers of, specifically, the federal government.

Contrary to popular belief these views, these views are not EXACTLY the same thing. When addressing Original Intent the person has to look at what the Founders and the writers of the amendments meant when they were writing the Constitution. How did they define and understand commerce, General welfare, Common defense, and other terms in the Constitution? This is important because these words meant very specific things to the people who wrote them. Also, if you study history you can find precisely what they meant by these phrases. By studying history, like the Founders did, you can understand the intent, purpose and limits behind the powers they granted to the Constitution and more specifically what powers denied to the federal government (If it is not listed in the Constitution it is a power that the federal government has no authority. The Founders said this over and over especially when discussing a bill of rights. Why enumerate rights the people have when there is nothing in the Constitution that says the government has those powers? Anything power not listed belongs to the states or the people, declared in the 10th Amendment at the behest of the states in the ratifying conventions.). This technically does not make a person a strict constructionist.

A strict constructionists adhere to a very narrow view of the powers of the Constitution. A liberal constructionists views the powers of the Constitution in a more terms. Both sides have valid opinions, reasons and arguments. Both are right and wrong when interpreting the Constitution, sometimes at the same time. Let us look at an example.

Jefferson and Hamilton had this disagreement early in our history over the Bank of the United States. Jefferson, a strict constructionist, believed the government had no authority to charter a bank since it was not specifically listed in the Constitution. And he was right. Hamilton, a liberal constructionist, saw that the government may not have had a specific authority to charter the bank, but it could pull its authority from the necessary and proper clause of Article I, Section 8. Both men were right in this scenario. Jefferson was right to protect the people and nation from usurpation of power, not specifically granted in the Constitution. Hamilton was also right. Because the Congress has authority to tax and spend money as granted in the first clause of Article I, Section 8 it is  “necessary and proper” to create a bank to collect the tax revenue and distribute that revenue as directed by the federal budget. Hamilton pulled the authority to create the bank directly from the powers already granted in the Constitution. He did not just change the meaning of a word or phrase to get his way, which is what so often happens today when politicians look at the Constitution and have no idea of what it really meant, it protections and limitations. Enough of the history lesson on with these convoluted views.

There is plenty of room for government to have authority over many areas of our lives with just the authority given to them in the main body of the Constitution and its amendments, with the necessary and proper clause. Where the problem lies is when the politicians ignore the clearly defined limits of those powers in direct contrast with how the document, as written and understood. This is where the idea of original intent comes into play. Politicians read terms like interstate commerce, general welfare, and other key phrases, assuming that means anything that falls under those ideas belongs to the federal government. But this directly contrasted with what the power actually meant. Interstate commerce cannot be used an excuse to regulate 1/6 of the U.S. economy, that technically is an intrastate economic activity. You can’t read general welfare to mean anything you want when we have multiple examples stating that it means the powers specifically listed in the Constitution. This changes a limited government to an unlimited government. But the government still needs to grow to fit to protect the individual and itself. Here is an example.

To a strict constructionist creating the Air Force could be seen as unconstitutional. Why? There is nothing specifically in the constitution that gives the Congress that authority, and they would be right. But the liberal constructionists is also correct. Due to technological expansions we now can fly with assistance. It would be improbable that the Founders could see the day of air planes used as transportation or weapons of war. The necessary and proper clause covers that gap between the authority already granted and the modern needs of the nation. That clause can grant the Congress the ability to raise and support an air force out of the already authorized powers to raise and support an army and navy. The air force is a good and constitutional expansion of Congressional authority because was necessary (absolutely needed) and proper (reasonable) to have an air force to provide for the common defense. The Founders would have agreed that this is necessary and proper to defend the nation, which is why they gave Congress partial authority over the military.

But what about a bad example of liberal constructionist views of expanding government, both sides need should seen clearly. The most favorite topics of liberal constructionists in the 21st century: education, medical care and insurance. Education is often lumped in the idea of “the general welfare.” Unfortunately, there is not direct nor specific enumeration of power that gives the Congress any authority over any level of education. I challenge anyone to find where the specific power listed in the Constitution. The same is true for regulation for medical care and health insurance. One must concede that the founders did not had any clue how medical knowledge and technology would be advanced in the 200+ short years since they left this earth. But just because they did not foresee it does not mean the federal government should have any authority over it. The authority does not exist in the Constitution. The argument could be had that it should. Well great! Get a constitutional amendment passed giving Congress that authority and it will be all good. But most people would rather Congress over step the powers already granted and take that power from whom it really belongs, the people and the states. The Founders would have even disagreed with the educational policies of the federal government. They say it being handled at the state or local authorities or the people themselves. This is their original intent. So a strict constructionist has more authority here than a liberal constructionists, because there is no original authority in the Constitution to make that power grab by the Congress.

A brief side notes on medical insurance and interstate commerce. Health insurance is not interstate commerce. Health insurance is purchased from a properly licensed dealer inside the state, regulated by the state board of health. Some states even have state mandated monopolies of health insurance providers. If Congress were to write a law that would allow open competition across state lines for buying and selling health insurance, then they would be at that point have authority to regulate the industry. But there still is no authority in the Constitution to give the President the authority to tell a company what specific goods or services they have to offer to the consumer.

What is the point of all this? There is value in all three of these philosophical views. I respect all three and use all three in my understanding of government. Let me explain. Congress should have authority to expand its power to meet the changing times and needs of the nation and the people. But it should only expand in those areas that it already has authority using the guide of expansions that are absolutely needed and reasonable. How do we know if the Congress has authorization to write laws about a particular topic? First, you read the Constitution. Then, you research the original intent of the founders to understand those areas that are not clear to a modern audience. The Constitution is broadly written enough for Congress to create laws absolutely needed and reasonable at the federal level. The writings of the Founders and those who wrote the amendments are also very clear on the limits and intent of those powers. If the authority does not exists, take your argument to the Congress and the states to create a constitutional amendment to expand the power Congress into those areas. Then we will have nothing to complain about when Washington sticks its hand into our lives; the people approved it overwhelmingly.

Questions?  Comments?  Concerns?  Class dismissed!

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One thought on “My Convultued Views on Stict & Liberal Constructionists in Regards to Original Intent

  1. Pingback: Retailers look to become lobbying force with $10M campaign « Bitter Harvest

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