So I was thinking about the Constitution as I drifted off to sleep last night. You might think it an odd thing to think of at bed time, but I find it to be comforting and somewhat reassuring. You hear a lot about it these days, about the Constitution.... the “Founding Fathers”. But who were those men, really? Washington, Jefferson, Adams, Madison, Franklin and many more. Names that you knew once but have long since forgotten. The men who produced the Constitution in the summer of 1778 differed in many ways, but they had two things in common: they all loved, and had fought for liberty, and they all feared the tyranny of a large and unchecked federal government. They all, to a man, believed that government was the enemy of freedom. But they understood too that some strong, but limited government was necessary to the survival of the nation. The idea was known then that a people are forced to trade some liberty and independence for the services and protections that a central government is uniquely able to provide: the common defense; commercial regulation; things whose necessity is hard to argue. They debated all that summer and were barely able to agree on what we call our Constitution. Fitting I suppose, and prescient somehow that a bare majority of delegates carried the day for the Federalists.
Since the beginning of the last century there have been efforts to progress beyond the Constitution, to build the government bigger, and away from the support provided by the foundation. The government began to be seen by many to be the solution to all of the problems of mankind. The economic cycles of feast and famine seemed to be within the control of government. This was a time of great social change around the world and many began to see value in a system where a benevolent, but all powerful government would direct resources and distribute the fruits of society’s labors equally amongst the citizens, providing a comfortable lifetime of shelter from the harsh reality of life on Earth. But this was not the intent of our founders. They had too much experience with a government that decided who was allowed to succeed and how high a station they could reach. Thomas Jefferson wrote in the Declaration of Independence “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it,”. These are beautiful words, and they were codified in the Constitution. The Bill of Rights, the first ten amendments to the Constitution, were added to specify some of those rights, and Article V provides a means to change the Constitution if desired. The method is clear and straight forward, but it’s difficult, amendments requiring the ratification by no fewer than three fourths of the state legislatures. That’s why it happens so infrequently. It’s hard. The majority of the people really have to want it.
Now what’s taking place is what I’ll call Constitutional creep. That is the making of laws that are farther and farther away from the foundational support of the Constitution. Laws get passed, signed into law and if no one is materially damaged or can afford to hire a team of lawyers the Supreme Court isn’t able to rule on the actual constitutionality of the legislation, and even in instances were cases do reach the Court, the Commerce Clause has been used frequently in recent years to allow all types of questionable legislation to stand. And so what was a strong foundation for a limited government has been covered and surrounded by un, or barely supported structure.
From time to time when you read of Supreme Court decisions you hear people mention “the intention of the Founders”. Justices know the Constitution, and parse the journals and correspondence of the principles, and they study past case law to tap the wisdom and thinking of great Americans passed to try and know what we should now do. One thing is clear. The men who debated, wrote, and finally ratified the Constitution feared an over powerful federal government. Can it be that it has now taken 210 years for their fears to be realized?
And that’s what an average guy thinks.