The Constitution: What did the Founders really intend?

Triumphant Republicans thought they were reaffirming their “fealty to the framers” by reading the Constitution aloud to open the 112th Congress, said Dana Milbank in The Washington Post. They contended that this symbolic display—to be supported by a new rule requiring that all proposed legislation cite its basis in the Constitution—would herald a new era of limited government and a return to the nation’s first principles. But instead of the real thing, GOP legislators read a “sanitized Constitution” with certain passages omitted—a founding document from “a fanciful land” that never condoned slavery, never considered a black person as three fifths of a person, and never denied women the right to vote. It’s kind of strange to show respect for the Constitution by censoring the embarrassing, backward parts, don’t you think? said Sherrilyn A. Ifill in TheRoot.com. The reality is that the Framers never intended every word in the Constitution to be frozen in time; that’s why they provided a mechanism for amending it, and why “the necessary and proper clause” gives Congress authority “to make all laws which shall be necessary and proper.”

The Founders did not, however, give either Congress or the president unlimited powers, said Charles Krauthammer in The Washington Post. The reading of the Constitution reflected the national feeling, powerfully expressed in the midterm elections, that since Barack Obama took office, we’ve moved too far from government “constitutionally limited by its enumerated powers” to one “constrained only by social need.” If the federal government can fine anyone who doesn’t buy health insurance, is there anything government can’t do? Apparently not, in the progressive worldview, said Andrew C. McCarthy in National Review Online. The Supreme Court, in the liberal Earl Warren era, managed to discern a “penumbra” in the Constitution that somehow guaranteed women a right to abortion. Have liberals failed to notice that this document says nothing about giving hundreds of billions of taxpayer dollars to private corporations, or government taking ownership of car companies, not to mention a Federal Interagency Committee for the Management of Noxious and Exotic Weeds? For the Left, the Constitution “can be twisted to mean whatever progressives want it to mean.”

It’s conservatives who are willfully misreading the Constitution, said Michael Lind in Salon.com. Their view of it as “the stone tablets of the Ten Commandments” arises from a Protestant tradition that is deeply suspicious of any authority that dares to interpret scripture, be it the pope in Rome or the Supreme Court. This political theology has become linked to the Tea Party’s “neo-Confederate ideology,” with the “political heirs” of the segregationist South denouncing federal authority as illegitimate—especially since it’s now in the hands of “a black Yankee from Abraham Lincoln’s Illinois.” What the Right is really pining for, said Rex Nutting in Marketwatch.com, is the “weak government” Americans had before 1787 under the Articles of Confederation. The nation’s Founders, however, recognized that a loosely organized confederacy of states was a political and economic “disaster,” leaving the new nation factionalized, powerless, and in danger of “being gobbled up by European powers.” The Constitution was deliberately framed to create a “strong central government.”

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Not as strong as it has become, said Charles W. Kadlec in Forbes.com. The country went off track in the 1930s, when the progressive movement exploited the Great Depression to overthrow limited government. The vehicle for this “counter-revolution” was a liberal Supreme Court, which decided that the Commerce Clause empowered the federal government to regulate any activity that even indirectly affected interstate commerce. In 1942, the court ruled, in Wickard v. Filburn, that the federal government’s powers extended even to stopping farmer Roscoe Filburn from feeding his own wheat to his own chickens. That case opened the door to the creation of some 300 federal agencies, which enforce regulations Congress never voted on. Is it “radical” to object to this?

There will be no end to this dispute, said Dahlia Lithwick in Slate.com, and that’s just as it should be. It turns out that the Constitution’s “enduring genius” is that it’s open-ended enough “to infuriate all Americans almost equally.” Good luck to those who insist they know exactly what it means, said the New York Daily News in an editorial. Does the First Amendment give Julian Assange the right to upload anything he likes onto WikiLeaks? Does the Second Amendment guarantee that any nut can buy an assault weapon with a 50-round clip? “In a world never imagined by the Founders, the answers are not clearly written in parchment, much less in stone.”