One of the ongoing controversies that have plagued us for the past two hundred or so years is how we should interpret the Constitution. Should it be interpreted literally or in some esoteric fashion? I suppose we should not be too upset that we have not solved the problem in over two hundred years. The same controversy also surrounds the Bible and it is thousands of years old.
It has always struck me that those who attempt to interpret the written word in some abstruse manner are arguing against the purpose of language. As the popular wordsmith, Rush Limbaugh often points out, words have meaning, otherwise they are of no use in transferring thought from one person to another. On the other hand, if words could only be seen from one perspective, those who practice the mysterious art of literary criticism would be out of work and we might have another class of citizens feeding at the public trough.
The problem with departing from the literal interpretation of the Constitution is that you destroy its value as a legal document once you stray from the clear meaning of its words. The Constitution is a contract governing the relationship between three entities, the federal government, the state governments and the people governed.
Every person agrees to accept that contract when they assume the role of citizenship, whether by birth or naturalization. Every public official agrees to it when they take the oath of office. No savvy person would agree to be party to a contract if the meaning of that contract could be changed at the whim of one party but not the other.
I was reminded of this a couple of days ago when I posted a comment relating the Constitution to the “social contract” theories of John Locke on another blog and got the following response from a fellow reader.
“I agree with you on the Constitution functioning like a social contract, but should we really INTERPRET it like a contract? Is it a smart idea to narrowly and strictly interpret a government-founding document that lasts as long as our country does? Some things the founders were explicit about — the amount in controversy required to have a right to a jury, for example. But other stuff was left purposefully vague because they realized this document needed to be flexible to survive the test of time.”
How else would one interpret a contract other than as a contract? We have seen the dangers of “flexible contracts” in our current financial troubles. The Constitution is not an “adjustable rate mortgage” designed to change with the needs of the marketplace. The value of a Constitution is that it does not change with every episode in the political life of the country. Otherwise, why have a constitution? Why not simply allow the legislative bodies to decide what the supreme law of the land is at any given time?
The idea that the Constitution purposely contains vague passages in order to provide a flexible document that would adjust to circumstances over time comports well with our new President-Elect’s view of the Constitution, but it has no demonstrable basis in reality. The idea is not new, however. It forms the basis for the concept of a “living Constitution”.
The clause most often used to support the flexibility of the Constitution is the so-called “elastic clause” found at the end of Article I, Section 8. It gives to Congress the power to make…
“…all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Adherents to the “living constitution” theory focus on the words “necessary and proper”. We would all be better served if they would focus first on the words, “foregoing powers” and “vested by this Constitution”. There is nothing ambiguous or flexible in this clause.
It does give Congress some latitude in determining what is “necessary and proper”, but only in “carrying into execution the foregoing powers” and “all other powers vested by this Constitution in the government”.
“Foregoing powers” obviously refers to the powers just enumerated in the preceding portion of Section Eight. “All other powers”, refers to powers found in other sections of the Constitution. These relate to the powers given to the Judiciary and Legislative branches, also quite specific and limited. The only two references to Congressional power aside from section 8 are found in Article III, Section 3 giving Congress limited power to declare the punishment for treason, and Article 4, Section 3 giving it the power to make laws governing territories and other properties belonging to the United States.
Other examples of the authority of Congress to make laws, authorizes it to modify or prescribe processes for implementing specific requirements of the Constitution such as the removal, death or resignation of the President and Vice-President and implementing the “full faith and credit” clause in Article IV, Section 1.
Readers can easily establish for themselves the specificity and limitations on Congressional Powers by pulling up a single-page copy of the Constitution and doing a word search by opening the edit tab on their browser, clicking on “find” and typing in the word “Congress”. Repeat with the word “Power”.
The argument is often made that circumstances require the federal government to become involved in issues not specifically covered by the Constitution. Education, healthcare and energy are three of the most common ones of the past few decades. Fortunately the First Congress of 1789 provided for this argument in the Tenth Amendment ratified in 1791 under pressure from the Anti-Federalists.
“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”
~Constitutional Amendment 10
There is nothing ambiguous or non-specific about this or any other part of the Constitution. The Constitution does not require interpretation. It requires application. Those who have trouble understanding the meaning of its language should invest in a good dictionary.
Certainly the founders understood that time and progress might place new requirements on the government. They provided for this in Article V setting forth the requirements for constitutional amendments. If the proponents for expanding the power of government cannot muster up enough political support for their cause to successfully navigate the requirements for an amendment, it’s a pretty good sign that it is not necessary or desirable. That’s the way the founders intended it to be.