Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing “liturgical foundation” to the adherents of the point of view that the Constitution is like The Bible: that it’s somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.
But what if that absolutist point of view is absolutely wrong?
What if the Original Intent Of The Founders, that summer in Philadelphia…was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?
What if The Real Original Intent…was that we work it out for ourselves as we go along?
“…you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal…”
--From the song “Gasoline”, by Sheryl Crow
The reason this is coming up today is because I’ve been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.
To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it’s to be done at all, it’s something that should be left to the States. (The 10th Amendment is used to reinforce this point.)
A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no “foreign entanglements” or National Banks…a time when men of the soil worked their farms with no fear of Debt or The Taxman….a time when government worked best by using local wisdom to deal with local problems.
In other words, we’re basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787—and for those who don’t recall, Hamilton won, which reflects the reality that we don’t all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.
To reinforce their arguments “fundamentalists” fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today’s problems would be found by simply allowing the Original Intent to shine through.
I’m here to tell you that couldn’t be more wrong—and to prove my point you need only consider the Civil War.
Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.
Those Founders who supported ending that “peculiar institution” were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by “the various States” there were compromises made, including the 3/5ths Compromise and Article Four’s requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.
The Intent Of The Founders, on the question of slavery, was to let time work it out.
The same kind of “let time work it out” thinking led us to Article 1, Section 8, and the “general welfare” clause.
Congress is empowered to enact legislation that provides for the “common defense and general welfare of the United States”…but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, "unclear phrasing").
Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders’ Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.
We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to “accept” Federal laws…or not.
Over time, of course, we’ve come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop—and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would “find their center”.
The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we’ve seen fit to change that—and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.
Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?
The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn’t really exist as an issue in 1789.
I’m guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)—but they did put that “general welfare” clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.
The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government’s powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.
Can you guess why?
That’s right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of “leave things open” and let time work it out.
Here’s an example of how one of the Founders tried to tried to kill the “Original Intent” argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he’s also credited with being the principal author of the document, possibly because his were the best notes).
Why did he do that? It appears to be because that Founder’s Intent was to make the Constitution’s words stand on their own, without his notes to frame the debate—and in fact the document had been in force for almost 50 years before those notes saw the light of day.
The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situation, are hoping that you’ll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders—and all of that brings us right back to Social Security.
It is true that the Constitution, as it was written in 1789, does not contain the words “you may establish Social Security”—but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.
Congress, acting with the authority to provide for the general welfare, took Roosevelt’s proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here’s part of what they had to say:
Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.
So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.
Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it’s to kick a problem down the road so that something can get done today.
The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful—and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn’t change that even one little bit.
FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.