There’s been a lot of talk, lately, as to whether the law, particularly the US Constitution should be interpreted to reflect exactly what was written or whether the law adapts with the times. I am an analyst, so I am cursed with need to make sense—to the best of my ability—of issues of importance that are presented to the masses. I do not claim superior intelligence nor do I do believe I have extraordinary understanding of legal subtleties or political intrigues. I do however view myself as a responsible American voter trying to prepare for the time I will spend in the voting booth. I ask questions when I do not know the answers. However, sometimes the best way to find the answers is to ask the right questions. In fact, the questions are often more important than the answers.
Just for the record, I have sworn an oath to protect and defend the US Constitution from enemies foreign and domestic. I will continue to honor that oath for as long as I live. I take the US Constitution seriously, just as it deserves.
There is a mad dash to nominate and approve a new Supreme Court Associate Justice in the weeks before the next presidential election. The primary goal is stated as to appoint an associate justice who will interpret the constitution so as to reflect the exact intention of the those who wrote and signed the original US Constitution in 1787. The founding fathers were responsible for creating the Great American Experiment, which is both wonderful and yet remains an experiment.
A story, which is generally accepted as true tells us: Benjamin Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, with a rejoinder at once witty and ominous: “A republic, if you can keep it.”
I believe we may be facing just that question.
The founding fathers planted the seed; for the past 230 years, those of us who love America have tried to nurture that seedling and the plant as it has grown. In my opinion, some parts of the republic have done well, while others need more tending, including some weeding and pruning, even today.
The thoughts and ideals of the founding fathers were based on their times and their norms, which is why many people today believe that the Constitution should be interpreted based on today’s norms. This is not necessarily a new idea. In fact, Thomas Jefferson, the primary author of the Declaration of Independence and the third US President wrote to James Madison, the fourth US President and who is considered the Father of the Constitution.
“Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right (Emphasis added). It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”
Thomas Jefferson to James Madison, 1789. ME 7:459, Papers 15:396
Inasmuch as Jefferson’s suggestion was never implemented, we have kept the US Constitution, more or less as written. It’s true that there have been 27 amendments, although the 18th amendment (Liquor Abolished) was negated by the 21st Amendment (Amendment 18 Repealed). Therefore, there have actually been 25 changes to the US Constitution since 1787.
The first 10 amendments, commonly referred to as the Bill of Rights, were ratified in 1791, only four years after the main body of the Constitution, and given that they were primarily the work of James Madison, I propose that it is fair to include and accept that they, too, accurately reflect the will of the founding Fathers.
Before we consider some specific passages of the Constitution, let’s first mentally adjust our perspective to social norms of the Founding Fathers in the mid eighteenth century:
- Only gentlemen could exert significant power. A gentleman was first and foremost a landowner. In many cases the land that they held had been granted by the British Crown before the War of Independence.
- A gentleman was invariably white.
- Every signatory of the US Constitution was a male.
- Every signature on the Declaration of Independence also belonged to a man.
- The closest was Mary Katharine Goddard, who was Baltimore’s Postmaster and an important journalist. She was charged with publishing the Declaration, so at the bottom of the broadside, issued in January 1777, the following appeared, “Baltimore, in Maryland: Printed by Mary Katharine Goddard.”
- Suffice to say, women could not vote. I find no record of female judges until Esther Hobart Morris served as a Justice of the Peace in 1870.
- At the time of the Founding Fathers, women were considered chattel (property).
Given these conditions and how they conflict with our norms and mores today (Thank, God) I have a difficult time accepting that strict interpretation is the best approach for the Twenty-first century.
The primary responsibility of the Supreme Court is to review legal decisions to ensure that they agree with the US Constitution. A strict constructionist sees the gold standard as the writings of the Founding Fathers. The Constitution, for example does not address issues concerning communication beyond the printed page. The telegraph, radio, television, internet, and smartphones are outside the instructions left by the Founding Fathers. While the Founding Fathers were well familiar with issues of property and the navigation of the seas, they had no concept of vessels that operate below the seas, in the air above the land, most assuredly of people and equipment that exist and operate above the Earth, on the Moon or on other planets.
Given that, let’s examine some original sections of the US Constitution. The following sections of the original Constitution may have been amended, but the original statement, and therefore strict interpretation best reflects the Founding Fathers’ intention.
- Section 2, third paragraph: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years and excluding Indians not taxed, three fifths of all other Persons.”
- Women counted in the census, although they could not vote.
- Native Americans were excluded from both being counted and voting.
- “Other Persons”—in other words slaves—counted as 3/5th of a person, giving states with slaveowners more clout than other states. The more slaves in a particular state, the more representatives that state would have. At the time of the Revolution, the population of the United States is believed to be somewhere between 2.5 million and 4 million. There were about 450,000 enslaved “other persons,” although I cannot determine how they were enumerated in the total.
- Further down in Section 2, third paragraph, “The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.”
- The 450,000 “other persons” is believed to include an estimated 400,000 slaves brought from Africa to the Colonies plus another 50,000 who had been born in the Colonies.
- Americans in all 50 states owned slaves at that time.
- The “breeding stock” aspect of slavery was a profitable business
- The effect of the headcount of both freemen and the 3/5th count of slaves on representation was not trivial. In 1790, New York had 6 representatives, Pennsylvania had 8, while Virginia had 10. The number of slaves tipped the balance in Virginia’s favor.
- Based on the original verbiage of the US Constitution—“The Number of Representatives shall not exceed one for every thirty Thousand, but each Shall have at least one Representative.” The forefathers were looking at a small number of people in a huge landmass, but today, it’s different. Based on strict interpretation, today, we would be entitled to 11,013 members of the House of Representatives.
- Section 8, paragraph 7 points out that the Congress shall have the Power “To establish Post Offices and Post Roads.” A strict interpretation expected Congress to establish, operate, and maintain a Post Office. Back then, there were not necessarily roads in existence to provide postal communication. The Post Office needed to build and maintain those roads. Nowhere does it say that Congress can abdicate their postal responsibilities onto a pseudo-governmentally-owned-corporation or hand it over to a political sponsor to disenfranchise voters.
- Section 8, paragraph 12 states that Congress has the authority “To raise and support Armies, but no Appropriation of Money to that Use shall be for a Term longer than two Years.” The Founding Fathers did not want a standing Army because of the mischief that standing armies in Europe had caused.
- “To provide and maintain a Navy.” The United States was and is a maritime country. In the time of the Founding Fathers, we were separated from European powers by the ocean, yet we needed to free travel through the ocean in order to maintain trade and commerce.
- “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions
“To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” During the Civil War, for example, the armies of both the North and the South primarily consisted of state militias.
- Besides slavery being legally recognized, the Constitution in Article IV, Section 2, runaway slaves were to be returned to their owners. This was superseded by the 13th Amendment, which was passed in 1865—well after the Founding Fathers had passed into history.
- Since the Bill of Rights was written by the Founding Fathers and reflects their views, the 9th and10th Amendments are especially important:
- Amendment 9 – Construction of the Constitution: The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10 – Powers of the States and the People: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.
The Federal Government has expanded its authority into areas and in ways that would have shocked the Constitution’s signatories. This has resulted in rights of the individual and the state being impacted–sometimes for the better, sometimes not.
To interpret the Constitution as the Founding Fathers intended is not possible. In college, when a question on an exam asked what an author meant by a particular passage, I would answer in two parts:
- No one knows except the original author.
- Having established that, the interpretation that you taught is—and I’d regurgitate whatever the textbook or lecture opined.
If, on the other hand, we consider the Constitution to be a more current document, we would have to include the following conditions added by those who were NOT the Founding Fathers. These are not all-inclusive, but do reflect the most significant changes after the Founding Fathers passed on. A strict constructionist should, by rights, ignore every one of these since they are not from the Founding Fathers.
- The abolition of slavery
- All persons born in America or born anywhere to at least one American parent are citizens.
- Voting cannot be denied or abridged on the basis of sex, race, color, or previous condition of servitude.
- Congress can lay and collect taxes on incomes, from whatever source derived.
- Attempts to legislate morality, such as Prohibition, have not succeeded.
I recommend that we admit that we’re no longer an 18th century agrarian society and act accordingly.