With all the attention paid to the reading of the Constitution in the House it reminds me of the problems I have with so many of the so called Constitutionalists who say they believe in a strict reading of the Constitution. Many of them have no more understanding about what they are talking about than the “keep your government hands of my Medicare” healthcare protesters had on that topic. As for me, I went to one of the few schools that required ALL students to study Constitutional Law since we were going to take an oath to defend it and learning about this period of our history is one of my passions.

While I agree with most of these Constitutionalists that the government is too large and is exceeding its Constitutional powers, that has to be more than a sound bite and talking point. I like to propose to Constitutionalists some mental exercises to help them determine where they really stand rather than just spouting those shallow talking points they heard somebody else spout.

Implied or Explicit Powers?

Are you an explicit powers or implied powers Constitutionalist? This is an important question because if you aren’t an explicit powers person are you really a strict Constitutionalist? You can be but there will be a lot of arguments about where the implied powers line is going to be drawn.

Implied or explicit? Do you thing we should have an Air Force? The Constitution talks about armies and the navy. An Air Force may well be an implied power but it certainly isn’t explicit. How about NASA? Should we have a NASA? Where is it in the Constitution? The FAA?

Make a list of the things you think the government should be doing and should not be doing? Do the things on your list of should be doing appear in the Constitution explicitly? Are they implied? Are they not there at all? If they are not in the Constitution, should we amend the Constitution to allow them? Are you willing to go that route or just let the government keep doing them? Once you go through this exercise most of us will find we really are implied powers folks and not strictly explicit powers people.

How about things you don’t think the government should be doing? Many of the type folks who are on the strict Constitutional reading bandwagon also tend to be against things like the financial reform efforts of the last few years. It is hard to argue that our financial system is not interstate and even international commerce and regulating that is an explicit power of Congress spelled out in the Constitution. If you are against Congress using this power can you really be a strict Constitutionalist? There are plenty of reasons to want a light or heavy hand on this front but it is an interesting question to help you understand where you really stand on Constitutional powers.

Original Intent

Another favorite talking point is original intent. We must abide by the original intent of the founding fathers. Whose original intent? From when? How do we determine the original intent?

Just read the Federalist Papers is a common answer. It’s a good one but there is a problem with it. They were written mostly by Alexander Hamilton and John Madison with some help from John Jay. Hamilton and Madison became bitter opponents and took opposite views of the powers the federal government had under the Constitution. If the two chief authors of the Federalist Papers could not agree on what the Constitution allowed the government to do, how are we to agree on their original intent?  Hamilton and Madison did not just write the Federalist Papers, they were among those who created the Constitution. They were instrumental in getting the Constitutional Convention going in the first place. Which original intent? Hamilton’s expansive federal government powers or Madison’s far more limited intent? We’ve been having that argument since before the Constitution was written and its ratification didn’t stop the argument.

(One of the more ironic parts of this read the Federalist Papers defense is the Federalist Papers were written to counter the anti-federalists and encourage the ratification of the Constitution. Many of today’s Constitutionalists arguments would probably have put them on the anti-federalists side of things.)

Many of the original intent believers tend to be on the much more limited federal government that Madison and Jefferson eventually championed. They didn’t always do that. Madison went into the Constitutional Convention with the intent that the federal government be able to veto state laws. If this founder changed his mind about a power the federal government should have can we really reliably know original intent?

Some founder’s original intent was for proportional representation if they came from large states. Some wanted equal representation because they were from small states. Slave state founders wanted slaves counted while those from non-slave states didn’t. Some wanted an executive committee and not a single executive.

Some of these original intent issues were actually settled in the Constitution through the compromes that allowed it to be completed. We know they intended a President, a two chamber legislature and a judiciary. We know the terms they intended for all of them. There were questions they solved definitively. There were some they put off for later debate. Some like slavery were deliberately delayed. Many others were left vague to help win ratification. What does general welfare allow? What does regulate interstate commerce allow? The founders themselves argued about it in the convention, argued about it while trying to ratify the Constitution and continued arguing about it as soon as the government was formed. We are not going to suddenly find the answers they didn’t find.

More than a Sound Bite

While I agree with the Constitutionalist that our government has exceeded its Constitutional powers in many cases, understanding how and where and how seriously takes far more than a sound bite. Is it Constitutional is a simple question on some topics but on many others it is not.  The people who wrote it argued about it and that argument continues to this day.

If we’re going to have an honest debate the Constitution has to be more than a sound bite. Many Constitutionalists know this but far too many are only regurgitating talking points. They have never really looked at what the Founders really intended. Those Founders had the same debates we are having to today and their one clear intent was to form a government and move forward without having settled all the points. They intended the debate to continue and continue it does. They had more than a sound bite understanding of what they were debating. I wish more of us did.