People complain that government has become too omnipotent and has lost touch with our collective needs. Our Constitution was forged by a nation teetering at almost every turn and trying to shed the yokes of arrogant government. More than two centuries after we adopted a Constitution, our government is perhaps too secure.
Originalists demand we interpret the Constitution literally. That misses our founders’ reality entirely. While I appreciate the bright line literalism affords, it often makes no sense. In fact, the original framers of our Constitution at the Philadelphia Convention specifically stated that evolving interpretations of what they might have meant ought not dictate the course of future generations.
Consider the rights the Constitution and its amendments afford to those charged with a crime. The founding fathers remembered when British rule and its courts were considered arbitrary and capricious. The right to a grand jury, or for that matter, the right to secure counsel, afforded citizens some protection from arbitrary and oppressive government.
Now, a grand jury is considered a tool of prosecutors rather than a shield against intrusive government. On the other hand, the right to counsel is now regarded not as a right, but as an entitlement to a court-appointed lawyer, again not what the founders had in mind if we literally interpret their words.
What the framers meant was a document that offered the security a beleaguered citizenry craved — to be protected from an intrusive and arrogant government. The founders knew the citizenry did not want one imperialist and omnipotent government to replace another.
The Constitution was a delicate balance between the fears of the public and the need to forge an effective federal government that could sustain its separation from its former colonial overlord. Almost every clause in the Constitution tries to strike that balance so important in the late 18th Century for a nation not yet a generation old.
We all know that to balance two forces doesn’t always dictate a point precisely in between. If two equal weights are on a balance scale, the balancing point is in the middle. But, if one weight is much larger than another, Lady Justice must divine a pivot point closer to the lighter, weaker or meeker side. Or, she must place a finger on the scales of justice to redress any imbalances.
The Constitution tried to find that balancing point based on a very weak and fragile federalist union and the sensibilities of citizens wary of federalism.
If we are true originalists, we must instead try to imagine how our founding fathers would forge the Constitution afresh were they try to divine that balance today. Surely, it would not be the same words, clauses and balancing points they divined in 1789.
Look again at the Constitution’s preamble in light of how we live today:
“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.”
Our founders attempted to forge domestic tranquility and individual productivity and ensure that we are forever protected against the sort of violations they had known under British oversight. Yet, they also knew federalism needed nurturing if they were to unite as a people.
Now, federalism is incredibly strong, almost overwhelmingly so. While the founders tried to strike a balance that would keep suspicious states from seceding, there is no such possibility of secession any more. The federalist side of the scale is now massive indeed.
We shouldn’t abandon federalism, though. Instead, we should work harder to protect and nurture individual rights and free-spiritedness. Today, the powerful, be they government, corporations too-big-to fail, the wealthy with a much louder voice and access to the legal system than any of us could conceivably afford, or any such institutions with collective power unimaginable in 1789, now out-swamp the various protections afforded the individual in our Constitution.
This is the light upon which we should consider so many constitutional issues now confronting us. We need to take back government. Lady Justice should help.
Colin Read chairs the finance and economics faculty at SUNY Plattsburgh and has published a dozen books on local and global finance and economics.