Let’s discuss all the “strict constitutionalists,” shall we?
For example, isn’t it funny that all of these self-described constitutional “purists” seem to have a problem with constitutional “interpretation,” which they deride as “judicial activism,” when it comes to any law that demands personal responsibility, which they also claim is important to them? A classic example of this comes with their complaints about the Affordable Care Act, which largely center around two things; the part of the law that requires that insurance companies cover all healthcare and the “individual mandate,” which isn’t actually a “mandate” at all.
See, here’s the thing. With the individual mandate, you still retain the ability to choose whether or not you want to buy health insurance. The only thing that’s changed is, if you decide to not carry insurance, the rest of us won’t have to foot the bill for that choice The funny thing is, that sort of thing is done all of the time. If you decide to smoke or drink liquor, you pay for that choice, which is only fair, since we have no idea whether you’ll stop at 2-3 cigarettes or two drinks a day or you’ll make yourself sick and make the rest of us pay for the costs. Even in Colorado, pot is legal, but if you smoke it, you pay a tax to pay for that decision. The vast majority of us call such decision-making “personal responsibility.” Imagine that.
One problem with “strict constitutionalists is their narrow view of what everything in the document means and their tendency to base their argument on one small section of the Constitution, as if each part operates independently, separately from every other clause in the Constitution. For example, absolutist arguments surrounding the right to keep and bear arms always cite the Second Amendment, as if the rest of the document doesn’t exist. In fact, they act as if half the Amendment doesn’t matter. As a refresher, here’s the Second Amendment text:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Now, I’m not going to get into a gun rights argument in this column, although I will in others. For the purposes of this piece, let’s just stipulate that people have a right to bear arms. Okay? There’s just one problem, and it comes with the rest of the document. For example, this is from Article I, Section 8:
The Congress shall have power to
… provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
That’s right, “strict constitutionalists,” people have the right to bear arms based on the Second Amendment, but the rest of the Constitution says (the government) gets to make the rules regarding arms, to the point that they actually get to tell you which guns you may and may not carry, and how. Hell, a state could conceivably keep all of the community’s guns in arsenals placed around the state, if they thought that was the best idea. In fact, at the time the Constitution was being written, many cities and states did exactly that. Almost all featured an arsenal where weapons were kept and a magazine, where ammunition/gunpowder was kept.
The reality is, no part of the Constitution works on its own, exclusive of every other part, especially when it comes to what is easily the most-neglected section of the Constitution, the Preamble. The Preamble reads as follows:
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.
It’s funny how “strict constitutionalists” not only ignore the Preamble, but if you bring it up, they laugh at you and claim it doesn’t count. Of course, who can blame them? The Preamble contains some seriously progressive ideals. The strange thing is, when you note that the Preamble is basically the statement of “legislative intent” and that it sets out the purpose for creating the Constitution in the first place and does so in absolutely clear terms, “strict constitutionalists” bristle because they know that is right.
The Founders created the government for “the people,” and they meant it for everyone. They knew times would change and that the Constitution would have to keep up. The principles set forth in the Preamble have to be considered when deciding the merits of any law passed by Congress or any other governmental body. If a law fulfills the intent expressed in the Preamble, there is a greater burden to demonstrate a serious overstep on the part of the government. That’s why the Supreme Court and even Chief Justice John Roberts had little choice to uphold the ACA over the objection of “strict constitutionalists” Scalia, Thomas and Alito.
It’s time we honored the Constitution — the entire Constitution — and stopped allowing “strict constitutionalists to use it as toilet paper. If those who proclaim such expertise as to what’s in the document actually read the damn thing, we could have a far more honest debate.