The Issue of Constitutionality

An issue that has recently been rolling off people’s tongues in connection with a whole host of government initiatives is the question of constitutionality. Some actions are clearly unconstitutional and are enacted because of ignorance or “in your face” attitudes. Other actions are too close to call and will eventually be decided by our court system. Whereas, others are clearly constitutional; but, in order to gain partisan talking points and/or to fan the flames of criticism, constitutionality is questioned. In my opinion, these claims often stem from lack of understanding of the U.S. Constitution.

There are two distinct time periods leading to the creation of the U.S. Constitution. The first is the revolutionary period beginning in the middle of the 1770’s with the “real tea partiers”, complaints of “taxation without representation”, slogans like “don’t tread on me”, and the insistence on powers being given to the states - this led to the Revolutionary War and Declaration of Independence. With the successful establishment of our own nation, our Founding Fathers moved into the second period where they created their own governments. This group of men had extensive experience in writing documents creating governments. Some had been involved in writing colonial governments. After the Revolutionary War, they wrote new state constitutions (in some cases more than one); plus, our first national government – The Articles of Confederation. It failed because it was too weak and gave too much power to the States.

Finally, in 1787, the Constitutional Convention was held where our forefathers designed maybe the best system that could be achieved at that moment in time – the U.S. Constitution. They had matured over the proceeding 10 + years and this time crafted a document that created a strong national government which many of the revolutionaries of their day opposed. In these Founding Father’s discussions and correspondence, they made it clear that this document was intended for their time and place in history. They undoubtedly would be surprised and maybe aghast that we still have the same constitution in place 223 years later. Most would not be comfortable with a common claim today that it was divinely inspired – it wasn’t.

In fact, we sometimes lose sight that this highly regarded document was a long way from perfect:
It didn’t include a Bill of Rights – this was added as the first 10 amendments soon after
ratification. They had to rewrite the way the President and VP were elected in 1804. Slavery was allowed until 1865. It wasn’t until 1868 that states were denied the power to “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” People were denied the right to vote because of race, color, and previous condition of servitude until 1870. Income taxes were not allowed until 1913. The people couldn’t vote directly for U.S. Senators until 1913. Then, we had the liquor debacle that was on in 1919 and off in 1933. Women were finally allowed to vote in 1920. People living in Washington DC weren’t allowed to vote for President and VP until 1961. The poll tax was used to restrict voting for President, VP, and Congressmen until 1964. We finally clarified the sticky issue of Presidential succession in event of disability, death, and/or resignation in 1967. Citizens 18 years of age were finally allowed to vote in 1971. And, in 1992,
increased compensation for services of Senators and Representatives could not take affect until after an election.

The above represent amendments added to correct problems with the U.S. Constitution. This is a very difficult process. If we were limited to this for every change in our government, the U.S. Constitution would be unwieldy. Therefore, right from the beginning with our first Congress, first President, and first Supreme Court, changes were accomplished through legislation, executive action, and court decisions. Quite frankly, this is what our Founding Fathers intended and why the Constitution is so short and concise. They expected the government to be modified to meet the special needs of changing times. The U.S. Constitution is a living, evolving, changing document and has always been that way.

Whenever I hear someone suggesting that this or that can’t be done because the U.S. Constitution doesn’t speak to that issue, it immediately raises a “red flag.” Within reason, our government is what we want it to be. That is what a democratic/republican system is all about. Basic principles like civil rights and check and balance system are important and must be maintained. But, we must remember that the U.S. Constitution on purpose does not promote any religious theology; does not promote any economic ideology; does not even mention political parties; and by design, national law preempts state and local law. It is purposely vague on the details on how our government runs its day-to-day operations. It is up to us and our elected officials to fill in all the details.

When constitutionality is questioned, I would suggest that we listen critically. There is an unhealthy tendency for some in our society to “brew” up a mix that includes opposition to taxation of any kind, endorsement of the unrestricted free-market/capitalistic system, the need for us to “reestablish our roots” in the Christian religion, a demand for smaller and weaker national government, and an insistence on the view that state and local government should take a leading role in governing our great nation. When it is suggested that the U.S. Constitution supports this conservative “brew”, it is simply inaccurate spin that was not the intention of our Founding Fathers nor should it be used this way today.