Recently, I was asked a rather thought provoking question, one that is being bandied about more and more, especially by those people quite left of the political spectrum. The question was this:
Is the United States Constitution outdated and should it be re-written? If it were to be re-written, who among us is qualified to do it?
A fascinating question, one that might engender multiple books. I’m sure there are scholars out there, constitutional scholars that have their academic take, historians, who I’m beginning to trust less and less based on their collegiate affiliation (more on that in another article), or law students, bathed in far left liberal universities (it is documented, quite extensively, how left law schools have become, with some calling it a coming crisis) who also have their bent (yes, it’s outdated-many of them will say).
I, however, your humble but opinionated thought dispenser, also have thoughts on that question, my many years of teaching history and government, as well as continuing study, serving as the basis for my opinion.
The basis of the United States Constitution is rooted in the ideals of the 18th century Enlightenment, ideals that were anathema to the time, and considered by many as treasonous. The world changed in 1455 when Gutenberg invented moveable type, allowing books, some with what were considered subversive ideas, to be printed in bulk and distributed widely. Hence, the notion of free speech, for example, was not something the governments of the day, mostly monarchy, were in favor of. Ideas, easily spread and antithetical to the rule of a king or queen through word of mouth, or worse, print medium, were as much a danger as sword and early firearms.
If one considers the importance of people falling in line as a pillar for monarchical rule, one also understands the importance of restricting free speech. As such, monarchs took pains to ensure this radical notion, among others, was suppressed. The philosophes, those enlightened thinkers took issue with said suppression and still wrote their ideas about the human condition and how to improve it. Even the Catholic Church, the dominant religious organization of the period, took pains to suppress free speech with the creation of the Index of Prohibited Books, in force from 1563 until 1966.
John Locke, maybe the most influential thinker for the Founders, wrote about individual rights, rights we’re born with, referred to as ‘natural rights’. The reader might recognize Locke’s words when Jefferson wrote, inalienable rights. Locke also wrote of the people’s right to a government they so choose, and if that government is not serving the people, they have the right to form a new government based on what they prefer. Again, Mr. Jefferson echoed those thoughts in the Declaration of Independence.
There were a great many thinkers who influenced our Founders as they wrote the Constitution, thinkers who formed the foundation of the Enlightenment movement. But if one makes a close examination of the document itself, there are a few things that are the bedrock of that outstanding document.
First, protecting the rights of the individual. Yes, those rights are enshrined in the Bill of Rights (1791), and were added later as a ‘guarantee’, but not contained in the original version of the Constitution. Why? Generally because the Founders did not think it was necessary…the entire document was designed to protect those rights—they were considered inherent in the Constitution. Others wanted a guarantee anyway, so the Bill of Rights was added. The very idea that the Bill of Rights was not added initially indicates the inherent nature of our natural rights as outlined in the Constitution itself.
There is nothing outdated about protecting one’s natural rights.
Second, it was designed to ensure that States’ rights were protected, shielded from federal government overreach. Specifically, the federal government’s reach was to be small, deliberately small, for the Founders knew the natural tendency of government is to expand, as the tentacles of an octopus entraps its prey. Once those tentacles are allowed to extend their reach, it is quite difficult to force them to withdraw.
That is why the 9th and 10th amendments exist, the two amendments given short shrift in government classes. Specifically, those two amendments dictate that if powers given to the federal government are not specifically stated in the Constitution, those powers are reserved to the people and the states respectively. There is no debate about this.
Those two amendments were designed to truncate the power of the federal government. However, through creative argument, as well as the need to generate an economy for the fledgling nation, Alexander Hamilton, one of the more brilliant, if not mercurial, members of government and the nation’s first Treasury Secretary, found ways to skirt those limitations, expanding the power of the government, much to the dismay of Jefferson, causing a rift that was not only to last a lifetime, but even unto death. When Hamilton was killed during the dual with Burr, and Jefferson was informed, Jefferson paid no mind, not giving him a second thought. John Adams was reputed to have said, “Vice, folly, and villainy are not to be forgotten because the guilty wretch repented in his dying moments” Such was the nature of their dislike not only for Hamilton, but what Hamilton stood for.
Hamilton was often called a “monarchist”, a slur of epic proportions in the early days of the Republic, as the sins of the British against the colonies were fresh in their minds. Such a slur directed towards Hamilton was a direct reflection of his intentional growth of the federal government.
In later years, President Woodrow Wilson, as well as President Franklin Delano Roosevelt, would grow the federal government significantly, Wilson instituting the income tax, purportedly to pay for World War I, but never to leave, allowing the federal government to siphon off even more money from its citizens. In Roosevelt’s case, at least economically, the growth of the federal government exceeded the bounds of the Constitution exponentially. On more than one occasion, Roosevelt engaged in unconstitutional legislation, with much of his ballyhooed New Deal being found unconstitutional. His answer? Pack the Supreme Court in order to get his proposed legislation passed. Needless to say, a significant number of members of Congress did not support such a proposal and it was summarily quashed.
Still, Mr. Roosevelt remained undeterred, instituting programs such as Social Security that have become pillars in the American way of life…a pillar outside of Constitutional purview. If something like that should be done, it should be done at the state level as there is nothing in the Constitution that allows for Social Security’s creation*.
That’s where the rub is in all of this, and why so many, mostly on the left, believe that the Constitution is outdated. Should one cast their political partisanship aside and look at proposals regarding the Constitution, most involve expanding the reach of the federal government, lessening state power. Think about it. When something goes wrong locally, what do most people say? “Where is the President?” “What’s the President going to do about it?”
When crime is rising in cities, many critics say, “How come (insert federal congressperson here) isn’t doing anything about it? Here’s why…it’s not their purview. It is local and state government that is responsible, not federal. The more the “feds” are invited to solve local and state problems, the more expansive the federal government gets…something the Constitution explicitly was designed to avoid.
There is a reason some wish to expand the Supreme Court…in order to force, politically, the expansion of the federal government, federal government programs, and with it, the federal government’s power over the states. Little of this is constitutional, and certainly not in line with the 9th and 10th Amendments.
Over time, governments, even democracies (or Republics, in our case) will tend to drift toward some form of large government control. This phenomenon is documented in an excellent work entitled Soft Despotism, Democracy’s Drift by Paul Rahe. It is the unfortunate nature of people, over time, to delegate more and more power to the central government, despite our unwillingness to be governed.
The Founders understood this, being students of history and philosophy, and, consequently, set up the Constitution to avoid that scenario. They wrote the designated powers of the federal government down specificallyto provide a virtual wall to the aforementioned “drift”. Only through subversion, creative legislation, or outright disregarding of that document can said “drift” happen. Unfortunately, that is precisely what is happening, and right before our eyes.
So, in answer to the initial question, “Is the Constitution outdated?”, the answer is no. Not only is it not outdated, it is almost perfect with regard to the separation of powers between the federal government and the state. Delineating boundaries, setting up walls, and defining limitations of “big government”. So, if that’s the case, what’s the problem?
We are the problem.
We are the ones allowing subversion to take place. We, the voters, are the problem, continually voting for people who wish the expansion of government in order to gain control. We are the ones not standing up for what’s in the Constitution because so many don’t really know what it stands for, and neither do so many on Congress. When we have representatives espousing total equality of outcome, rather than opportunity, it is an indication of said ignorance.
When the federal government imposes regulation after regulation, it is simply another form of Constitutional subversion under the guise of “protection”, something that has been happening at an alarming rate.
When we have representatives pushing for expansion of the Supreme Court because they don’t like the decisions of the Court, decisions based on strict constitutional interpretation rather than activist interpretation, that is a danger to the Republic.
When we have a population that consistently looks toward the federal government and its minions to solve problems at the state level, rather than holding state officials responsible, we are inviting said expansion, an expansion that will impact our individual freedoms, no matter our race, color, creed, or religion.
When we have schools, and teachers, at the collegiate and high school levels, who blatantly disregard what the Constitution says, or fail in total to teach properly what’s in the Constitution, or students that simply don’t care, or both, we are in dire straits. It is decay from within, on all counts, and it is OUR fault and no one else’s.
No, there’s nothing wrong with the Constitution. There’s something wrong with us.
*Although the Court and a number of “massaged” decisions, beginning in 1937, did support the creation of Social Security and the governments right to tax in support of it. Still, there is nothing explicitly in the Constitution itself. Some scholars believe those decisions were made in favor of Social Security because of the threat of the court packing Roosevelt threatened.