Taking the Constitution Seriously

[North Country]

From a local paper, in reference to the 112th congress being opened by a reading of the Constitution:

Congress is obligated to interpret the Constitution, and Congress, no less than the other branches, ought to be be guided by the Constitution. But how will that affirmation of Constitutionalism affect lawmaking? For an answer, we could look back to Senator Robert A. Taft (1889-1953), the last American lawmaker of any stature to define himself as a Constitutionalist. When debating policy, Taft asked whether the federal government, and which branch, possessed the constitutional authority to act, not what useful purpose the action served. During the Korean War, for example, Taft adopted Congress’ side of the long-standing quarrel about the executive’s powers to make war; he did not question the expediency of assisting South Korea, merely the right of the president to take action without Congressional participation. The Constitutional means by which the legislature defends its powers include a share in the work of of the other branches, and Taft exhorted Congrsss to exercise its foreign policy and war powers and not to abdicate them. To allow the president to arrogate those powers to himself, Taft said, was to give the executive a permanent grant of power. If today’s Congress is serious about restoring its relationship to the Constitution, it will exercise its constitutional authority to make laws to benefit the health and welfare of the country, rather than devoting its time to making arguments that health care reform, for example, is unconstitutional, arguments that will not withstand scrutiny, judicial or otherwise. To do otherwise is to abdicate its constitutional powers and allow them to be weakened. The constitution, Taft believed, limits the manner by which government acts; it does not limit government from doing the things it has to do.

http://www.lakegeorgemirror.com/news...ion-seriously/

[debo]

Interesting take. I'm not well-versed enough on the constitution to put my opinion on one side or another, but yeah...interesting...lol.

[Yendil]

I have lost faith in congress to follow the constitution, they only cherry pick parts of it to make themselves look better while discounting other parts of it. I would love for the 112th to adhere to the constitution but if the last decade has taught us anything they won't. If they did, I for one would be shocked.

[Patsfan56]

Well, in part this article is right, to a point, if by using the term constitutionalist, we are to assume it means the same thing Taft thought it did as reflected in this article. According to this, Taft care more about what roles were approved by the Constitution more than the meat of whatthe constitution meant. Interesting way to look at it. And I could see the argument for leaving helath care alone and letting the courts decide the constitutionality of the legislation, had this bill not just been voted on. I can see the interpretation of (Well, this was a clear mistake, and since it doesn;t go into full effect until (what, 2013/14?), we need to act now to correct this mistake. Or, better yet, look for ways permissable in the constitution to modify the law to better serve the people and make it, in their perspective, constitutional. They could, undre this interpretation, aslo look for other laws that violate this constitutionality issue and modify them as well.

I also don;t think this will impact the rules regarding the vice president and congress, given they were changed when John Adams served. It would be interesting (not positive, IMO) if tey did, but with Biden, I highly doubt it happens).

[dbroncos78087]

I feel like we should institute a "Constitutional audit". Something similar to what the Chief Justice does every year (in the state of the judiciary), but more in depth and more encompassing. All the judiciary would come together and scour the laws of the country and make recommendations on the constitutionality of the laws. I know it would put a lot of power in their hands, but we essentially do that anyways by letting judges make decisions. So i think it would be in better hands than the legislators.

[Labgrownmangoat]

I feel like we should institute a "Constitutional audit". Something similar to what the Chief Justice does every year (in the state of the judiciary), but more in depth and more encompassing. All the judiciary would come together and scour the laws of the country and make recommendations on the constitutionality of the laws. I know it would put a lot of power in their hands, but we essentially do that anyways by letting judges make decisions. So i think it would be in better hands than the legislators.

So you would like a far, far more activist judiciary? This approach would turn our judicial system on its head and make our government far less accountable to voters. Judges are plenty powerful already, in my opinion.

[dbroncos78087]

So you would like a far, far more activist judiciary? This approach would turn our judicial system on its head and make our government far less accountable to voters. Judges are plenty powerful already, in my opinion.

I dont see how an audit creates an activist judiciary. It creates accountability for both past and present laws.

[cabernetluver]

There have been many books written about the "true" meaning of the Constitution and different parts of it. Many of these books have been written by well respected scholars. These two sentences should exist without any argument.

The reason for the word "true" being in parenthesis, is that many of these well respected scholars have taken distinctly different views as to what the "truth" is.

For instance, Justice Scalia, is a self described "origianallist" in viewing the meaning of the Constitution. Someone please show me where in the original document Corporations were given personhood, (not Scalia's doing) and given expanded rights to contribute to political campaigns? Don't do interpreting, I mean find those exact words. I am not presenting this as a one sided argument, I am only pointing out that it is not really as simple as it sounds.

[Labgrownmangoat]

I dont see how an audit creates an activist judiciary. It creates accountability for both past and present laws.

It is not the duty of the judiciary branch to create accountability, it is the duty of the voters. It is the duty of the judiciary branch to ensure that people are not damaged by inconsistencies in our laws. To draw the notice of the judiciary branch, someone must be damaged. This limits the scope of their power to relevant matters. There may well (in fact we know there are) laws that say absurd things out there, however if they do no tangible damage. . .
---

To play off of Cab's comments, the Constitution is a guideline, not the word of an omniscient being. Following it slavishly is impossible and pretending to do so is inadvisable as it inevitably leads to hypocrisy. "Following the Constitution" necessarily involves interpretation, and the way people interpret it and our laws is shaped by their political views, to say the least. That is why we saw 5 "pro-state's rights" justices rule against the independence of states and 4 "anti-state's rights" justices rule in favor of the independence of states in Bush v. Gore, for example.

The biggest hypocrites are those who purport (to use a Palin word) to be strict constructionists, closely following the constitution. The clear fact of the matter is that nobody closely follows the Constitution when it comes to complex matters, because the Constitution generally has little to nothing to say about most cases that come before courts. Pretending that it does is, at best the equivalent trying to predict the future using pig entrails, and at worst a naked exercise of political activism.

In short "taking the Constitution seriously" is as open to interpretation as "taking the Bible seriously." As soon as all Christians agree on what the latter means, I am sure all Americans will all be able to agree on what the former means.