Paul J. Gessing
Michael Hays recently wrote a lengthy column in which he attacked my views of the Constitution. To summarize the debate, he believes in a “living Constitution” and I believe that the Constitution should be read as written as an actual set of instructions forming the basis for our system of governance.
While I disagree with almost every aspect of his attack piece, Hays is certainly correct in stating that the difference between the two viewpoints is absolute and irreconcilable. This article is meant to bolster the case for my view that the Constitution has real meaning as written.
Hays’ first and most unfair accusation is that I am a “reactionary” who is “inescapably racist and sexist.” He bases this on the fact that slavery existed at the time of the founding and that women could not vote for many decades afterwards. This is both outrageous and silly.
My view of the Constitution, whether you call it “originalism” or something else, is that the document proscribes specific mechanisms – in this case, the amendment process – by which the document can be altered for a changing world. This is not to say that the original document has no meaning, but rather to say that the founders, while having great insight into the mind of man, were flawed men who adhered to the views of their era. As times and views changed, the Constitution has rightly been amended to reflect those changes.
Thus, blacks were given equal rights, women the right to vote, and several other pressing issues were addressed. The Constitution is not easily amended, but it can and has been as recently as the 1990s. And, while I may not agree with all of the constitutional amendments that have been adopted over the years, the fact is that such major shifts were undertaken properly and within the outline provided by the document.
But in Hays’ world, the Constitution is “living” and has no actual meaning. The rules of the game cannot be violated because they mean whatever those in power want them to mean. Hays forgets that the Founding Fathers created the Constitution to protect Americans’ liberties from potential abuses on the part of their government. One would think that Hays – who appears to me a man of the left – would be just as concerned as a self-described conservative about giving such broad powers to the authorities.
Pushing priorities to the states
Certainly, under my interpretation of the Constitution, the federal government’s having created myriad government programs and agencies – including, but not limited to – Medicaid, Medicare, the War on Drugs, the Department of Education, and the Department of Housing and Urban Development – are violations of the document’s intent. But that doesn’t mean that such programs are irreconcilably unconstitutional in any form.
Rather, taking specifically the example of the current War on Drugs, when advocates of alcohol prohibition decided to make alcohol illegal nationwide, they amended the Constitution via the 18th Amendment. When that regime failed, the amendment was taken off the books by again amending the Constitution.
Regardless of your particular view on drugs and their legalization, it would seem that an accurate reading of the Constitution would require a similar Amendment in order to provide the federal government the powers it has taken in order to prosecute the “war.” Of course, states would be free under the 9th and 10th amendments to regulate drugs regardless of federal law. The same is true of social safety net programs like Medicare, Medicaid, and Social Security, and education.
More importantly, pushing such priorities to the states would have these salutary impacts:
- Programs demanded by citizens of a particular state would be paid for by those citizens.
- Eliminating the likelihood of massive, permanent deficits such as the $14 trillion debt faced by Washington, as nearly all states have balanced budget amendments.
- Improved program management and accountability as “one-size-fits-all” policies coming from Washington will no longer be the norm.
- Restoring the states as “laboratories of democracy” where policy innovations can be tried and shared with other states.
- And, perhaps most importantly, we’d be undermining the monopolistic powers of the federal government and giving Americans greater ability to “vote with their feet” in search of the policy climates that suit them best.
A work of genius
While Hays seems to think that the Founding Fathers were a bunch of racists and sexists who could not possibly have any useful ideas for us “moderns,” I believe that the Constitution was a work of genius.
If we only paid greater attention to it, America would be a better, more prosperous and more secure place.
Paul J. Gessing is the president of New Mexico’s Rio Grande Foundation, an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility.