Column on How To Use the Constitution

How to Use the Constitution


Tibor R. Machan

Many
in the just seated House of Representatives have been clamoring for a
return to the Constitution.  This is what appears to underlie to planned
challenge to Obama care, the massive piece of legislation that
President Obama has been eager to make a part of the law of the land,
legislation that contains provisions that toe many in the new House
appear to be in violation of the U. S. Constitution.  In particular,
objections have been raised against forcing citizens to buy insurance,
something that clearly goes against several principles associated with
the American political tradition, such as freedom of contract, freedom
of trade, etc.  Some of these principles have found a way into the
Constitution but it isn’t always crystal clear just where in the
Constitution they appear–the fifth, the fourth, the ninth, the first or
which amendment or which ruling that contains precedents should
constitutional watchdogs rely as they to issue the proclamation:
“Unconstitutional.”

The
plain fact of the matter is that while the U. S.
Constitution–specifically the Bill of Rights–contains some very
laudable provisions, all of them require a fairly nuanced interpretation
and application to contemporary issues (such as government coercing
people buy health insurance).  While for some citizens this is all a
piece of cake, no problem at all, for others it isn’t a slam dunk by a
long shot.  That’s because these folks focus on the fact that the
principles incorporated in the Bill of Rights are stated in terms that
had a slightly different meaning back when the Constitution was ratified
from how we understand them today.  

Such
development in the meaning of terms is often used as an excuse for
evading constitutional principles but it could also be legitimate.
 Terms do change their meaning, more or less drastically or radically,
even in the physical science–the term “atom” as used today doesn’t mean
what it had been used to mean a hundred years ago.  The more people
involved in the study of those matters for which such terms were coined
come to know–the more information comes to light about the surrounding
facts–the more likely some alteration of meaning is probable.  

Now
this doesn’t mean the ridiculous idea that nothing is constant in the
world, nothing stands still, nothing is stable and dependable, only that
one needs to be sure what is and what isn’t.  Some constitutional
scholarship would track just such developments–have the crucial terms
of the constitution kept the meaning they had back at the time of
ratification or did they change a bit or a lot?  The changes wouldn’t be
arbitrary, with the result that anything goes–which is the result some
of the avid skeptics about the Constitution would try to make us all
believe.  They hold to the doctrine originally ascribed to the ancient
Greek philosopher Heraclitus who held that everything is always in
flux–he is famously held to have said “You cannot step into the same
river twice” because, well, the river is always changing.  And if all of
reality were like the river, we could never count on anything to be
stable or solid, certainly not principles that are supposed to govern
human community life.

But
the American Founders and Framers disagreed and had spelled out
some–few?–principles that do apply to human community life precisely
because it is, after all, human communities that are at issue, not
communities of ants or birds or cows.  And these beings, human ones, are
not all that changeable even over the time span of centuries.  We know
this from anthropology, archeology, history, philology, and other
disciplines that study various aspects of humanity’s past and make
pretty good progress understanding them.  

So
there could well be certain invariable principles, ones that need to be
considered in dealing with or governing people and once these make it
into a constitution, that document could come in very handy in figuring
out public policies and plans.  But none of this would be happening
automatically, not certainly from simply reading the Constitution, not
by a long shot.  Honest constitutional study and understanding would be
needed.  Only then would the imperative to pay heed to the Constitution
come to something valuable, important.

The
reason that objecting to Obama care would appear to be not just
constitutionally misguided but a misguided way of dealing with citizens
is that people are the kind of beings in the world who may not be pushed
around by other people–they must have their sovereignty or rights to
life and liberty well respected and protected.  Unfortunately this idea
is so often and widely violated around the globe and, of course,
throughout human history, that it is difficult for anyone to be loyal to
it.  

Many
people are bent on pushing other people around–always, of course, for
lofty purposes–and so bringing up a constitutional objection to their
doing so would be annoying for them, even undermine their philosophy of
life and their aspirations to be influential in the world.  So they will
then commit to the philosophy of Heraclitus, a philosophy that gives
them
carte blanche
about how to interpret the U. S. Constitution or any other document
containing principles by which communities must be governed.  It’s a
living document, you see, which can be taken to mean whatever one wants
it to me, pragmatically and not according to common reason.

Yes,
it is good to refer to the Constitution but it is even more important
to keep in mind the underlying philosophical clashes and to make sure
which side is right.

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