One document, under siege
June 30th, 2011
01:07 PM ET

One document, under siege

By Richard Stengal, TIME

Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn't even dream that man could fly, much less use a global-positioning satellite to aim a missile, it's hard to say what he would think. What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress's authority under the commerce clause?

Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it's difficult to know what he would say. And what would Thomas Jefferson, a man who owned slaves and is believed to have fathered children with at least one of them, think about a half-white, half-black American President born in Hawaii (a state that did not exist)? Again, hard to say.

(See the 10 amendments come to life in video.)

The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy. And I'm not even going to mention the Electoral College. They did not give us income taxes. Or Prohibition. Those came later.

Americans have debated the Constitution since the day it was signed, but seldom have so many disagreed so fiercely about so much. Would it be unconstitutional to default on our debt? Should we have a balanced-budget amendment? Is it constitutional to ask illegal immigrants to carry documents? The past decade, beginning with the disputed election of 2000, has been a long national civics class about what the Constitution means — and how much it still matters. For eight years under George W. Bush, the nation wrestled with the balance between privacy and security (an issue the framers contended with) while the left portrayed the country as moving toward tyranny. For the past three years under President Obama, we have weighed issues of individual freedom vs. government control while the right has portrayed the country as moving toward a socialist welfare state.

(See pictures of Tea Party tax protests.)

Where's the Crisis?

A new focus on the Constitution is at the center of our political stage with the rise of the Tea Party and its almost fanatical focus on the founding document. The new Republican Congress organized a reading of all 7,200 words of an amended version of the Constitution on the House floor to open its first session. As a counterpoint to the rise of constitutional originalists (those who believe the document should be interpreted only as the drafters understood it), liberal legal scholars analyze the text just as closely to find the elasticity they believe the framers intended. Everywhere there seems to be debate about the scope and meaning and message of the Constitution. This is a healthy thing. Even the framers would agree on that.

So, are we in a constitutional crisis? In a word, no. The Constitution was born in crisis. It was written in secret and in violation of the existing one, the Articles of Confederation, at a time when no one knew whether America would survive. The Constitution has never not been under threat. Benjamin Franklin was skeptical that it would work at all. Alexander Hamilton wondered whether Washington should be a king. Jefferson questioned the constitutionality of his own Louisiana Purchase.

(Read about the cult of the Constitution.)

Today's debates represent conflict, not crisis. Conflict is at the core of our politics, and the Constitution is designed to manage it. There have been few conflicts in American history greater than the internal debates the framers had about the Constitution. For better or for worse — and I would argue that it is for better — the Constitution allows and even encourages deep arguments about the most basic democratic issues. A crisis is when the Constitution breaks down. We're not in danger of that.

Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: "The Constitution was written explicitly for one purpose — to restrain the federal government." Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.

(See portraits of the Tea Party movement.)

If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the "necessary and proper" clause, which delegates to Congress the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Limited government indeed.

Read the rest of this article over at TIME.

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soundoff (8 Responses)
  1. j. von hettlingen

    To be exact, there are 51 constitutions in the United States. One federal constitution and fifty state constitutions.

    June 30, 2011 at 5:20 pm | Reply
    • j. von hettlingen

      The question is, which one is more important for ordinary citizens on day-to-day basis, the state constitution or the federal one?

      June 30, 2011 at 6:24 pm | Reply
    • j. von hettlingen

      The Federalists and the Republicans divided the country already 200 years ago. The fight still goes on, if not more intense.

      July 2, 2011 at 5:52 pm | Reply
  2. GOPisGreedOverPeople

    Of the Rich, For the Rich, and By the Rich.

    June 30, 2011 at 10:09 pm | Reply
  3. pgm3

    The Constitution also bans the peacetime military and protects the "right" of a foreign terrorist to bring a bomb onto a planeful of schoolchildren. It wasn't until Marberry v. Madsion that the Supreme Court even presumed the power of interpretation, and we should all be greatful for that.

    It was created to "form a more perfect Union", in order to promote welfare - that is, the well-being of all. It is not an individualist document written by an Ayn Rand anarcho-capitalist, and its interpretation has not trended that way, historically.

    By the by, California has proportional representaion in the House. It should, in fact, have two senators like everyone else, lest the large states lord it over the small.

    July 1, 2011 at 10:04 am | Reply
  4. stagecoach

    “but they also gave us the idea that a black person was three-fifths of a human being”

    The Three-Fifths compromise was a compromise between Southern and Northern states reached during the Philadelphia Convention of 1787 in which three-fifths of the population of slaves would be counted for enumeration purposes regarding both the distribution of taxes and the apportionment of the members of the United States House of Representatives.

    Antislavery states did not want to count slaves at all when it came to representatives. Slavery states wanted to count all persons, including slaves. This was simply a compromise between the two agendas and did not consider slaves “three-fifths of a human being” It considered them 3/5 of a population.

    July 2, 2011 at 8:35 am | Reply
  5. jrh0

    Wow, this guy sounds like he flunked local state and national government in high school. There is a reason CA has the same number of Senators as MD for example, and its offset by their large number of representatives. Read a book on politics before opining on them.

    The 3/5 compromise NEVER said blacks were 3/5 of a person. It merely said that Southern states could not claim full representation in congress for a group of people, who weren't actually being allowed to direct that representation.

    This op-ed needs some seriously quality control.

    March 27, 2013 at 3:44 pm | Reply

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