What is the “original intent” of the US Constitution?

constitutionWith the recent US Senate hearings on the confirmation of newly appointed US Supreme Court Justice Elena Kagan, there is much discussion about the “original intent” of those who wrote our Constitution.

For example, did the guys who wrote our Constutition create a “Christian” nation?

To some folks one has to stick to the “original intent” of the folks who wrote our Constitution.

To other folks the Constitution is a “living” document that has worked remarkably well for over 200 years because we can take the words of , for example, Article 1 …and deal with modern issues.

“Article 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

We can look at these words in the context of the original writers back in 1791 when Article 1 was drafted and try and conjure up a strict construction based on original intent in a world with no radio, television or the Internet.

But the words were written in a time when the people of America had decided that “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.”

They set down a system of government that wasn’t run by a King, and that made it clear the power of government came from the people to be exercised by the people for the benefit of the people. This was pretty radical stuff. Most of the world still hasn’t agreed with this idea.

The Constitution created three branches of government, each with the power to frustrate and stymie the other. Congress can pass a law, but the President can veto it. Even if the President signs the Congressional Bill into law, the Supreme Court can kill it. Try and explain our system of government to anyone else in the world. I actually heard a top foreign government official ask” What do you mean your President can sign a Treaty and your Congress can kill it?”

Lots of people get upset when the Supreme Court rules a law unconstitutional. They argue that the “will of the people” is expressed solely by Congress.

But an interesting aspect of the history of America at the time the Constitution was written was the philosophy that a majority might not be right, and one must protect the ultimate “right” from being overrun by a “tyranny of the majority”. This comes from John Stuart Mill and the Utilitarians.

The majority at one point in our history allowed a lot of things we would not accept today, like slavery and blatant racial discrimination. The Supreme Court, citing the Constitution, ended that.

The First Amendment is a core of who and what we are as Americans.

You can practice whatever religion you want, and I can practice mine, and no state or federal legislature is going to give your religion the right to stomp on mine and not let me worship God however I want. Or maybe even not believe in God at all.

These few words in our Constitution were a huge departure from the norm in the 1790’s. It had been a given for thousands of years that a government, whether the Roman Empire or Great Britain, could establish a religion and enforce it on non-believers. Why do you think the Pilgrims boogied off to Plymouth Rock? Did your ancestors come to America seeking the freedom to practice their religion?

Separating Church and State was a hugely radical idea in the 1790s.

Looking at the world today, what the heck do you think the rise of Islamic Fundamentalism is all about? Taking over governments so the “true believers” can cram their religious views at gun point down the throats of everyone else in a country. What do you think the fight between the Shiites and the Sunnis is all about?

How many millions of people have died because of the merging of religion and government, and using the power of the state to crush the infidels?

The folks who wrote our Constitution saw what a really bad idea it was allowing religion and state to become one.

They could not, however, have foreseen specifically how this conflict would manifest itself two hundred years into the future. They put the words down on paper short and sweet. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

And contrary to modern claims, the United States was never a “Christian” country. There were obviously a lot of Christians in the country, and Christian values obviously are embedded in a lot of our laws. But just because Christians might be a majority of the population doesn’t give them exclusivity to decide what the government will or will not do. And the Constitution sure as heck prevents the government from adopting Christian laws that deny Jews and Muslims the right to their religious views in the country. And then, assuming you want to argue there is a Christian version…. which version? Catholic? Baptist? Methodist?

The Catholics and Protestants fight all over the place for governmental control and have been doing that for hundreds of years. Northern Ireland anyone?

Again, protecting the rights of minority views against tyranny of the majority.

Lets consider another part of the First Amendment: “Congress shall make no law …. prohibiting the abridging the freedom of speech, or of the press…”

Denying people the right to disagree with their government, and print that disagreement has been a major problem in the world for a long time. The folks who wrote the US Constitution wanted to make it absolutely clear our country wasn’t going there. Again, protect the minority view from tyranny of the majority.

If one viewed the Constitution as a static document that could only be understood in the context of literally what the writers were thinking in the 1790s, how do you think Ben Franklin would have dealt with the Internet?

Under “strict construction” could you see a case that freedom of speech does not apply to the Internet?” And how can one fathom the “strict constructionists” on the Supreme Court giving free speech rights to corporations?

Maybe the answer really is lets clone nine of the guys who wrote our Constitution, put them on the Supreme Court, and let them decide what the Constitution means today. Of course there would be a fight about which one of them to clone, and why there were no women writing the Constitution….


About Hugh Holub

Attorney and writer.
This entry was posted in 10th amendment, 14th amendment, 2nd amendment, hugh holub, national politics and tagged , , , . Bookmark the permalink.

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