Thursday, July 5, 2012

The Founders' True Spirit?

As we celebrate our independence this week, liberal Washington Post columnist E.J. Dionne would instruct us all as to "The Founders True Spirit."   Interesting, but I have a few questions for Mr. Dionne.

He writes:
It's entirely appropriate that the week of our July Fourth celebrations should coincide with a moment when the Supreme Court's health care decision has prompted intense debate over the purpose of our government and what the Constitution allows it to do. 
We are a more philosophical people than we give ourselves credit for. Constitutional questions enter the political conversation in the United States more than in most countries because our diverse nation is bound by our founding principles, not by blood, race or ethnicity.
Might it also be the case that we refer to the Constitution so much precisely because we were founded  as a constitutional republic, and whether or not were were also bound by blood, race, or ethnicity is immaterial?

He continues:
This has advantages and disadvantages. The biggest advantages are our openness and the fact that we tend to argue on the basis of high principles. The biggest disadvantage is that differences over policy are often disguised as differences over whether a preferred choice is constitutional or not. When we should be addressing pragmatic questions -- Will this approach work? Will it solve the problem it's designed to solve? Is this a problem government should do something about? -- we instead fall back on rather abstract discussions of whether a given idea violates the Constitution.
Could it be that those "rather abstract discussions" occur because absent the constraints on government afforded by the Constitution, the policy differences among us would too often be decided simply by the raw power of the majority to impose its will on the minority, and to do so whether or not the policy will indeed work or solve the problem?
There's more:
It's not a recent habit. When Treasury Secretary Alexander Hamilton proposed that the federal government establish a Bank of the United States in 1790, his idea was strongly opposed by James Madison, his partner in writing both the Constitution and the Federalist Papers that defended it. 
Madison wasn't just against the bank. Setting a pattern for the future, he insisted that its creation would be unconstitutional. Those who claim we can be so certain of the "original" intentions of the Founders should take note: If two of the original authors of the Constitution came to such a stark point of disagreement so quickly, what exactly does "originalism" mean?
Does Dionne mean to imply (and whether he realizes it or not this is where his logic inevitably leads him) that because even the Founders sometimes disagreed about the Constitution's original meaning, that it never had an original meaning at all?  Is it not possible that Madison or Hamilton or both were wrong about its original meaning?  Might not their partisan passion for their own policy preferences have blinded them to that meaning?
The genius of the Founders is that they created a government designed to act, and so I'd propose a new patriotic ritual involving an annual reading of the preamble to our Constitution:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." 
Yes, the first word of the Constitution is "we," and its purposes include establishing justice and promoting the general welfare. Before we expend enormous energy deciding how many angels can dance on the head of the Commerce Clause, we would usefully keep in mind the broader objectives of our great experiment.
Does Dionne not understand that the Founders, to a man, maintained resolutely that the larger purposes of any good government could only best be achieved precisely by constitutional government?  Moreover, does he not know that the "we" of the very first sentence implies not simply that a mere majority, nor even a super-majority, but rather that the people consented unanimously?  And, that they, and we also, consented unanimously to establish only "this Constitution", not just any constitution, not the constitution of our independent imaginations or convenience, and certainly not no constitution at all?

If our Constitution gets in the way of our government from time to time, it's because the Founders intended for it to do just that, both in spirit and in truth.

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