Michael L. Hays
Fifty years ago, in A History of the Modern World, then the standard for introductory college modern history courses, R. R. Palmer used a striking analogy to explain the Catholic Church’s reaction to the protestant idea of an individual’s right to read the Bible, interpret it for himself, and live by his interpretation, without regard to the Catholic Church.
He invited readers to imagine the American people’s reaction to the idea of an individual’s right to read the Constitution, interpret it for himself, and live by his interpretation, without regard to the Supreme Court. He assumed that Americans would be horrified and thus would understand the Catholic Church’s reaction.
What Palmer offered as a theoretical possibility has become a practical reality. I was never bothered that, from the beginning, Americans have argued about the meaning of its foundational documents and court interpretations. For, with few exceptions – the issue of slavery being one of them – generations of Americans have accepted their legal answers to legal questions.
The consensus has enabled America to move forward, although a few fringe groups have continued to inveigh against this or that amendment or ruling. Occasionally, the court does reverse itself, as it did when, in Brown versus Board of Education of Topeka (1954), it overruled Plessy versus Ferguson (1896).
But I find myself bothered by a radical shift in the nature of the discussions of this foundational document. Previously, discussions have involved not only the Constitution itself, but also its historical context and court interpretations. Originalists believe that it had a first and a final meaning defined when written and ratified; they believe that the work of the Supreme Court is to apply that original intent to later cases.
Others believe that it had a first meaning which, in its provisions for amendment and interpretation, denied a final meaning; they believe that the court’s work is to apply meanings that reflect an evolving understanding of them and changing circumstances to later cases.
The division is absolute; one must take sides, not pick and choose, lest one commit the fallacy of special pleading.
Rejecting originalism
I accept the latter, prevalent, and traditional view; indeed, I can make no sense of originalism. Theoretically, later readers of an earlier document can never be sure to accurately and comprehensively understand its original meaning. Practically, the large majority of Americans reject original provisions in the Constitution.
One case in point: Originalism accepts the constitutional provision for slaves, which explicitly includes them in the census but tacitly excludes them from the franchise. Another: It accepts the constitutional silence excluding women from the franchise and rejects the Nineteenth Amendment.
These cases show originalism to be inescapably racist and sexist, as the drafters of the Constitution themselves likely were. Originalism cannot make adjustments in such cases without undermining its basic principles and endorsing constitutional evolutionism. (One irony: Many of those who have insisted on a respect for precedent and opposed judicial activism but have become originalists are advocating aggressive judicial activism in overturning most precedents of settled law.)
The shift is that Republicans, tea partiers, and other reactionaries read the Constitution in ways distorted by their political convictions, partisan criticism of current laws, or special interests. They may claim to be originalists, but they are really contortionists. They offer ideological interpretations retrojecting their desires into the Constitution and producing distorted interpretations that serve special moral or religious, or economic, interests.
Moral or religious zealots are sincere in supporting such interpretations as the means justifying their ends. Economic self-servers are cynical in supporting them as a means glossing their greed with seeming constitutional sanction.
Gessing’s argument
I have glancingly addressed issues associated with the Constitution in other columns and blogs, but I directly address Paul Gessing’s recent column, “Federalism is key to America’s future,” because it is a local example of interpretations of the constitution tailored to serve special interests.
Gessing is the executive director of the Rio Grande Foundation, which is largely funded by oil and gas industries. These and other large corporations prefer state governments to have more, the federal government to have less, power because they can exert more influence on the former than on the latter.
Gessing’s first four paragraphs on federalism, most of which I quote, should be read in this light:
…Federalism, at least as conceived by the Founding Fathers in the Constitution, meant that the central government in Washington had a few, strictly-limited powers, but that an overwhelming majority of what was to be done was to be left to the states and people.
The belief that Washington’s powers were few and limited was so important to the founders that two separate amendments essentially re-stated this. The 10th amendment clarifies the issue, simply stating, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
To say that we have strayed far from this concept over the past 225 years or so would be an understatement. Federal policies now dictate state actions in education, health care, environmental policy, and a wide variety of other regulatory powers (to name just a few).
None of the aforementioned policy areas were named in the Constitution and, given the strict limits placed on federal activities, it seems worthwhile to at least discuss whether Washington has a role in these policy areas at all. But we have obviously crossed that bridge in the courts and Congress, and now we have a $14 trillion federal debt to show for it.
The first thing to say is that no connection whatsoever exists between the size of the federal deficit and government policies claimed to be constitutionally improper. At any time, the federal government could have adopted tax or spending policies that would have prevented or eliminated any deficit. In fact, the Clinton administration did exactly so; had its policies been continued, they would have eliminated the deficit by 2010.
The second thing to say is that no credence whatsoever attaches to a claim that “we” – millions of Americans, thousands of elected federal officials, and hundreds of federal judges – have “strayed far from this concept” of limited federal powers. Democracy can make mistakes, but it is rather audacious, if not arrogant, for anyone to imply that everyone else has been wrong about everything important for over two centuries.
A reactionary’s discontent
In raising these two non-constitutional issues, Gessing reveals a reactionary’s discontent with things as they are. In purporting to offer a federalism for the future, he actually offers a tendentious redefinition of it based on four common fallacies of reactionary constitutional interpretation – to which I now turn.
One, Gessing reads the Constitution without regard to its historical context. A significant part of that context is its predecessor document, the Articles of Confederation (1781), which, as its name implies, defined the American polity as a loose association of states. The failures of that political arrangement were its inabilities to deal with matters of foreign policy and of domestic relations within and among the states.
Political leaders recognized the need for a strong central government that could provide a unified approach to relations with other countries and a government capable of ensuring stable intra- and inter-state relationships and of regulating interstate trade. They convened the Constitutional Convention to that end and created the Constitution articulating it.
Two, Gessing reads the Constitution selectively, to cite the provisions that serve his point and to skirt the others. He ignores the Preamble, which states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.”
He avoids the first purpose for the Constitution: “to form a more perfect Union,” not a more perfect confederation. This phrase implies predominant powers for the federal government in its preference for national unity over state multiplicity.
Three, Gessing reads the Constitution perversely, with a “reverse rhetoric;” what comes first counts for less than what comes last. The Constitution ratified in 1788 specifies the three branches of the federal government and their powers. The Bill of Rights, the first 10 amendments, ratified in 1791, places some restrictions on the government largely in favor of individual rights; the Tenth Amendment reserves to the states whatever powers the Constitution does not grant to the federal government or deny to state governments.
His strange argument makes this afterthought the foremost concern of the founders in drafting the Constitution and the Bill of Rights. (He asserts that two other amendments limit federal power without naming them or later identifying them when asked to do so.) Those like Gessing, who use this amendment as a standard to judge the constitutionality of federal legislation might appropriately be dubbed “Tenthers.”
Four, Gessing pretends that the general language of the Constitution precludes specific legislation reflecting its preamble’s concerns. That the Constitution does not mention “education, health care, environmental policy, and a wide variety of other regulatory powers” does not imply that the federal government has no powers in these areas. (What makes these and other areas “regulatory” only? Why are his choices not cases of special pleading?)
Obviously, a phrase of purpose like “promote the general Welfare” can be meaningful only if the government creates laws and agencies to serve this end.
The irony
Ironically, by paltering with language and logic in this way, Gessing undermines the rationale for federal government support of the special interests that contribute to his organization. For, if a phrase of purpose precludes specific federal powers in areas related to it, then the absence of a phrase of purpose also precludes specific federal powers in areas related to it.
Ergo, according to his logic, if the preamble says nothing about a constitutional purpose to promote prosperity, the federal government has no powers of any kind to assist private interests, which constitute a large part of the economy – bye, bye, subsidies, tax benefits, waivers, exceptions, etc.
Of late, reactionaries have been urging distorted interpretations of the Constitution and its amendments as part of their more general effort to “take the country back.” This serviceable ambiguity means both of two things: taking it “back” from others and taking it “back” to a past. Which is to say, reactionaries want the country to go backward, not forward, into the future.
They repudiate the modern world – its demographic diversity, its mixed economy, its sciences, its arts, among others – and propound flawed arguments to persuade the unhappy or the unwary that the Constitution sanctions a return to some Garden of Eden or Golden Age. These fictions are myths of the past, not maps for the future. For that, we need the federalism defined by the Constitution of traditional American consensus to help us move forward.
Michael L. Hays (Ph.D., English) is a retired consultant in defense, energy and environment; former high school and college teacher; and continuing civic activist. His bi-monthly Saturday column appears in the Las Cruces Sun-News; his bi-monthly blog, First Impressions & Second Thoughts, appears on the intervening Saturdays at firstimpressionssecondthoughts.blogspot.com.