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January 25, 2011 8:13 am

AMEND CORNER: Is the Constitution alive or dead?

Written by Don Amend

Recently, at the opening of Congress, our good representatives took the time to read the Constitution out loud on the floor of Congress.

That’s not a bad thing. If anybody should read the Constitution, it’s the members of Congress. It is, after all, the basis for our government.

But there’s an underlying assumption to this reading, which was insisted upon by the Republican majority at the urging of the recently arisen TEA party. That assumption is that the rest of us haven’t read the Constitution, and if we would only read it, we would all magically be converted to their point of view. We would have a small government with states’ rights, and everything would be OK.

The corollary to this thinking is the belief that the Constitution is a perfect, even a sacred, document, written by a bunch of superior beings with guidance from above, and there can be no argument about what it says.

Well, in the real world, the Founding Fathers themselves were a bit conflicted about just what they had turned out there in Philadelphia, and they argued about it quite robustly.

Take, for example, James Madison’s letter to Thomas Jefferson, in which he wrote, “I hazard an opinion that the plan, should it be adopted, will neither effectively answer the national object nor prevent the local mischiefs which everywhere excite disgust against the state governments.”

Now I find it unlikely that a guy who was disgusted with state governments was really much of a supporter of states’ rights. His complaint sounds more like an argument for a stronger central government with weaker states. And Madison was an ally of the big guy, George Washington, who was one of the big forces in the way the Constitution turned out.

On the other, hand Patrick Henry, who had nothing to do with writing the Constitution, fought hard to kill it because he saw it as creating a big central government with unlimited powers. He predicted that the Constitution would create “a great and mighty president with the powers of a king.” Further, he predicted that the document would give Congress the power to enact unlimited direct taxes and to “counteract and suspend state laws,” including the laws protecting slavery.

Actually, many members of the Constitutional Convention weren’t quite sure just what they had created. Ben Franklin, for example, in a fine example of political waffling, said, “I confess that I do not entirely approve of this Constitution at present: but, Sir, I am not sure that I shall never approve it; for having lived long, I have experienced many instances of being obliged, by better information or fuller consideration, to change my opinion even on important subjects, which I once thought right, but found to be otherwise ... Thus I consent, Sir, to this Constitution, because I expect no better and because I am not sure that it is not the best.”

As it happened, Henry’s words came true pretty early. The ink on the Constitution was barely dry when Congress imposed an excise tax on whiskey in 1791, a direct tax which, prior to the 16th Amendment, was probably unconstitutional. When farmers in Pennsylvania rebelled against it, George Washington sent the militia to put down the rebellion.

Further, the government under Washington created a national bank, though such a bank is not specifically listed among its powers, and it got into the real estate business under Jefferson with the purchase of Louisiana Territory, even though such a purchase is not listed among the powers of either the president or Congress.

In short, the stretching of the federal government’s powers began under the same Founding Fathers whom conservatives idolize for creating limited government. Our earliest presidents in many ways set the precedent for a flexible reading of the Constitution by the actions they took.

A British historian and liberal politician, Thomas Macaulay, realized that when he took a look at the Constitution. Macaulay is said to have remarked to an American friend, “Your Constitution is all sail and no anchor.”

What Macaulay saw is that the Constitution was not a fixed, inflexible document. It would change direction with time in the face of new realities and the will of the people. That flexibility has enabled the document to adapt to economic, demographic and social realities undreamed of in 1788, when the Constitution was ratified, not to mention the changes in the world order and our position in that order. The Constitution has evolved in response to those changes, and conservatives have driven as much of that evolution as have liberals.

The Constitution exists, not in some mythical past, but in real life, and, as with anything in life, our interpretation has, and will, unavoidably change as our national situation changes. There are those who object to the concept of a living Constitution, but, in reality, a living Constitution is vital to our continuing as a nation.

If it isn’t living, after all, it must be dead.

1 Comment

  • Comment Link February 01, 2011 12:48 pm posted by Jay Thorington

    If the constitution is a "living document" tell me why then the founders included a provision to amend said constitution? Why would it be necessary if the U. S. Constitution is an evolving document? Just proclaim a different meaning. By definition a constitution is not ever-chaning "•fundamental law: law determining the fundamental political principles of a government." I find it ironic the author of this piece has a last name of "Amend".

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