Monday, January 10, 2011

Reading the Constitution Through the Framers' Eyes

      John Roberts had been an academic star, an outstanding lawyer and a federal judge before becoming chief justice in 2005. Even so, nine months after taking office, Roberts went back to basics by re-reading the U.S. Constitution. “I thought I ought at least to pause for an hour or so and read the original document to see how close we got to what the Framers wrote,” Roberts said in a C-SPAN interview in July 2006.
      If it was good for the chief justice, then it probably did no harm, and may have done some good, for the newly elected U.S. House of Representatives to spend its first full business day last week [Jan. 6] for the first-ever reading of the Constitution from the floor of the chamber. In today’s hyper-partisan climate, the reading naturally provoked a dust-up over the Republican majority’s decision to delete parts that had been “superseded” by amendments — specifically, those sanctioning slavery. Democrats served a valuable purpose by underscoring what Roberts called “the taint” in the original charter and the implicit need for amendment from time to time.
      In addition to the Constitution, Roberts recommended reading the Federalist Papers, the revered but rarely read essays by Alexander Hamilton, James Madison, and John Jay that helped win ratification. With their long paragraphs and sometimes dense history, the papers — available here on the Library of Congress’s THOMAS Web site — are not quite as “easy to read” as Roberts depicted. But they are as important as the Constitution itself in understanding the Framers’ plan for the “more perfect union” the charter was written to establish.
      Together, the founding documents make plain what today’s right-wing constitutionalists seem to forget. The Framers saw an urgent need for a strong central government if the fledgling republic was to survive and prosper. The Articles of Confederation, in their view, had left the so-called United States open to foreign intrigue and domination, interstate conflict and rivalry, and domestic insurrection. Something had to be done.
      Read in that context, the Constitution is hardly the limited-government blueprint that modern-day conservatives picture. The “enumerated” powers given to Congress in Article I encompass virtually every function that a late 18th-century government would have carried out except for local police power.
      Anti-tax activists might want to note that first on the list are the powers “to lay and collect taxes,” “pay the debts and provide for the common defence and general welfare of the United States,” and “borrow money on the credit of the United States.” Yes, tax and spend were the Framers’ very first concerns for a government to replace the confederation, which had left the national government dependent on the states for fiscal survival.
      Immediately following was the power “to regulate commerce with foreign nations, and among the several states . . .” Like the fiscal powers, this new authority for the national government was deemed essential to what Hamilton later called “the management of our NATIONAL INTERESTS” (Federalist No. 23; all-caps in original). Many of the succeeding powers related as well to establishing a national economy, such as coining money, establishing a postal system, and creating a uniform bankruptcy system. That last power implicitly infringed on the state laws then in existence providing for debtor prisons.
      The Federalist Papers make clear the importance that supporters of the Constitution attached to the enhanced powers of the proposed new government. The first 25 of the essays all warn against the dangers of the weak Articles of Confederation government: dangers of “foreign force and influence,” “dissension between the states,” and “domestic faction and insurrection.” Hamilton fears the United States could fall victim to the same rivalries that toppled Athens and Sparta in classical times (No. 6). He complains about the “imbecility” of a national government with no power other than to make “recommendations” to the states (No. 15).
      True, later essays seek to assuage concerns in state capitals by contending that states would have significant advantages in any contest of powers (Madison, No. 46). Overall, however, the Constitution set up a strong government for its day. And today it is clear that without that strong government, the United States might not have become the wealthiest and most powerful country in the world.
      In his interview, Roberts stressed the Framers’ other innovation — the tripartite structure of the national government — as the principal protection for liberty under the new Constitution. The later Federalist essays indeed pointed to this system of checks and balances in trying to ease fears among the anti-ratification forces. The courts were part of that liberty-protecting system from the outset even if Hamilton famously soft-pedaled the role by calling the judiciary “the least dangerous branch” (No. 78).
      Today’s constitutionalists are of two minds on the courts' role. They decry judicial activism in decisions they dislike but are now looking to the courts to overturn laws they dislike — from campaign finance regulations and gun controls to the brand-new health care law that they mock as “Obamacare.” Roberts acknowledged to C-SPAN the judiciary’s role in protecting liberty, but also cautioned against the impulse to take political disagreements to the courts instead of resolving them through democratic means. The health care fight is headed to Roberts’ court; it will be interesting to see how the chief justice balances those sometimes competing considerations.

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