Tuesday, November 26, 2013

Constitutional Dichotomy

“What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established.” Constitutional delegate William Paterson, author of the New Jersey Plan

What does the Constitution mean? What is its purpose? Is it meant to be followed verbatim or is it a living document? With a few inconsequential exceptions, all Americans revere the Constitution. But people see it differently. Very differently.

Tempest at Dawn
National Constitution Center 

Perspectives on the Constitution generally fall into two classes.

The first group sees the Constitution primarily as a set of hard rules to restrict government action. They endorse the Framers intent to harness government with balanced powers, potent checks, enumerated powers, powers unspecified being reserved to the states, and with the people reigning supreme. The Bill of Rights is viewed as further restrictions on government action. Rights are unalienable individual rights. Changes to the Constitution should be made per the prescribed amendment process. Meaning is determined by looking to the original document and the Framers’ intent.

The second group views the Constitution proper as a malleable outline of government organization. They tend to see this base document as a vehicle to carry a Bill of Rights, believing that protecting rights is the primary purpose of a constitution. They place greater emphasis on collective rights to make life fairer. This group sees the Constitution as a government guarantee of rights, and these rights can and should be expanded whenever injustice is encountered. The judiciary is the fairest agent to change the Constitutional through interpretation of the instrument as a living document.

Each group venerates the Constitution, but is it any wonder that they so often find themselves in disagreement. One sees the Constitution as a safeguard against government tyranny, the other views the Constitution as protection against unfair treatment by other citizens. One sees government as the threat, the other sees threats all around that only the government can thwart.

This Dichotomy is why it’s so difficult to have a rational conversation about the Constitution. These two views never intersect. It’s why some see grave constitutional violations, while others see nothing improper.

Which is right? Some might say it depends on what kind of country you want. This is an error. The Framers did not want the country to remain in 1787, they wanted to protect against human lust for power. They knew the country would evolve and change and they built a system to accommodate change controlled by the people. A living Constitutional approach may temporarily build a more just society, but as the requisite power becomes ever more concentrated, those who wield this unchecked power will thwart idealistic goals. The desired society will soon be trampled. Power and retention of this vast power will become far more important than the people out in the hinterlands.

The Framers did not hate government, they feared an overly powerful government. The Framers did everything their intellect could conjure to insure that an elite coterie would never become ensconced as rulers. Their system generally worked for two and a quarter centuries.

What would be the basis to judge them wrong?

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