Burlington High School
Burlington, Kansas
Teacher: Mrs. Devra Parker

 

 
The Living Constitution: The Living Death of a Country?
By: Christine Fraker
12th Grade
 
“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.” 
 
The preamble of the Constitution is, in fact, the most important paragraph connected to this country that was ever written.  In 1787 the “Framers of the Constitution,” who were also the creators and most brilliant minds of their time, met to establish some sort of sense of government for this prospering country.  Unbeknown to them, the legacy of good politics and democratic ideas has lasted for over two centuries.  Although, many do not realize what is going on in our government on a daily basis.  If someone was to look into the proceedings, he/she would be appalled.
 
Mr. Roger Pilon is the vice president of a company that conducts constitutional studies. This is where he gets his expertise in the matter of constitutionality versus unconstitutionality.  After reading his testimony that was presented in front of a congressional committee, I agreed with him as far as stating that Congress oversteps its boundaries.  Although I am one who does not watch the actions of our government closely, I have an idea of what occurs.  Each day I attend high school, my government teacher passionately explains each article of the Constitution in a way that puts us students in the great legal and political minds of the Framers.  He lets us know why each section is important. What is sad about Congress today is they forget the fundamentals of what they are doing.  In order to do their job correctly, each legislator must rely on Article one, Section eight of the United States Constitution.  This part explains what our Congressional body has the legal right to do.  We, as a people, do not understand that when either the Senate or the House of Representatives makes a law pertaining to a Constitutional right, it affects us also.  Each time we vote a new president in or for new Congressional members, we believe that we are giving our input for almost everything. This view it very misconstrued because, even though we believe we are having the power, the people we select for office are doing what is right for that certain individual.  In order to fix this, major steps must be taken.
 
Mr. Pilon explains that in order to mend current inequities, ratification is the right way to go.  I do not agree with him in this aspect.  I do, however, agree with the fact that though the congressman who makes a bad decision may claim he knows not what he was doing at the time, he was doing exactly what he wanted to do.  These selfish acts occur in many instances.  The congressmen and women’s views about law and life in general have been narrowed because of their line of work; they do not see what they wish not to see and vice versa. 
 
When Mr. Pilon talks of legitimacy of morals, politics, and law, he believes it does not exist in our government as it once did.  I agree with him when he says that only certain branches uphold our Constitution the way the framer’s dreamed.  Congress, on the other hand, believes that if they perform an act of duty that is not outlined in the Constitution, it is still okay because it is implied.  This makes our legislative document one of a “living” matter. Thus, it changes all the time to fit the needs of the age and not the people.  Yes, our country is still prosperous in the technological field and all parts that go along with it, but that has nothing to do with what is in the Constitution.  They are not looking at the big picture of what is happening on a daily basis.  One will not do something his/her parents do not want him/her to do even though he/she do not say so.  Not every action excluded from the Constitution that Congress would like to act on is implied. 
 
Thus, instead of living with a governing body that controls the people and is controlled by no one, we should look back and think about what the framers wanted our country to be like.  They envisioned a people who had a say in what happens to their country and wanted the Constitution to control the government instead of the other way around. Since we are under the impression that there is no way to change and we might as well live as we are, the people of America have lost hope in all of our government.  Although we have established justice, we have in no way insured domestic tranquility.
 
Questions Based on the Required Reading and
Your Personal Internet Research
 

Q1- Explain what Roger Pilon means when he speaks of a bifurcated Bill of Rights.

 Describe what happened in 1938, according to his testimony. 

He speaks about how in 1938, after the New Deal presented by President Roosevelt that called for “Court-Packing” the Supreme Court, some court members attempted to revise and re-write the constitution.  By doing so, they wanted to split the Bill of Rights in two and dissect it into parts which would also create a two-part theory of judicial review which would look over the proceedings. 

 

Q2- Give three examples of what is described in the testimony as fundamental rights and three examples of non-fundamental rights. Which of these rights do you, after reading portions of Dr. Pilon's testimony, believe should be subjected to strict scrutiny?

 A. Fundamental Rights

1.The right to vote

2. Freedom of Speech

3. Freedom of Religion

B. Non-Fundamental Rights

1. Property

2. Contract

3. Ordinary Commercial Relations

I believe that if the courts would submit our fundamental rights to “strict scrutiny” then non-fundamentals should be submitted also.  It does not seem right to me that the rights that we receive from our Constitution, the “Supreme Law of the Land,” should be investigated and possibly found unconstitutional, why not the laws we take for granted like property, contract and other ordinary commercial relations? 

 

Q3- Define:

Enumerated powers- In the Constitution, Article One, Section Eight provides the guidelines for the powers endowed to Congress by the authors.  There are a total of 18 specific ideas that uphold our legislative body.

Living constitution is a phrase that describes the ability to change and evolve our Constitution through the amendment process on a day to day or similar basis. The term is used loosely when describing what has been done in the past. Some prefer to think that our country would be better off with a Living Constitution. 

Politicizing the constitution is also a phrase that describes what many do to the Supreme Law of the Land, making a political/controversial issue out of the Articles and Sections that are the guidelines for our government.

 

Q4- Why does Roger Pilon claim a living constitution is worse than no constitution at all? 

Mr. Pilon sees a government that alters its interpretation of its founding document as the demise of a country.  One country that keeps many of its proceedings, as far as appropriations go, from the people who actually uphold the government, will, just as Mr. Pilon suggests, be the end of our democratic society. 

 

Q5- Explain what is meant by moral legitimacy, political legitimacy and legal legitimacy. Give your own example of each.

 

Legitimacy, from every perspective, is being brutally honest.  As far as politics go, the congressional body of our government is supposed to choose what is right and what is wrong in a legal sense according to the Constitution.  A specific example is the separation of church and state being taken to an extreme. Also, “turning the Constitution on its head” is in no way politically legitimate.  Moral legitimacy within our government seems to not exist. Although an item of business seems as if it’s politically legitimate, using “dirty politics” to gain power of any sort is not morally reasonable.  Lastly, legal legitimacy pertains to not which is political but that of which is legal.  If someone in the government does something illegal and then turns around a lies to the American people and Congress about it, he/she in fact as no legal legitimacy whatsoever.

 

Q6- Dr. Pilon spends some time enumerating five implications of an illegitimate constitution. Name the five implications and state why one seems to be the most serious in your personal opinion.

 

The first, and perhaps the most important, implication that Dr. Pilon points out is the problem of the loss of legality of the Constitution.  The people who make this way are the ones who create the laws by which our land is governed.  We the people have no way of knowing if what Congress is deciding is right for we people as a whole.  The second is that the Constitution is supposed to keep order.  If Congress believes that with the Enumerated powers they can extend the boundaries or “stretch” them in any way, they have the right to do so, when in all actuality, they do not.  If, under the Constitution “anything goes,” then order goes too, and with it comes chaos.  The next implication is along the lines of disrespect for the Constitution and all that it entails. This, to me is the most significant.  If disrespect exists for the Constitution, our whole legal system will have no faith from the people or the government and will, as predicted, shrivel while the whole world watches.  Fourth, is the idea of when constitutional truthfulness declines, the discipline a constitution is designed to enforce is lost.  Finally, there are the economic implications of effective unlimited government.  These show that there are many countries that focus more on economic planning than economic liberty which is sad because the basic lesson of economics is that liberty, property, and contract are the fundamental prerequisites of prosperity.

 

Q7- When he says "those true to its conception as a means of founding, maintaining and promoting a great nation in the public good.", is Mr. Frankfurter talking about the wisdom of enumerated powers or the constitution's preordained destiny as a living document?

 

I believe that Mr. Frankfurter is talking about the wisdom of enumerated powers. He made it seem as if FDR is truly interested in the fact that our Constitution was set up a certain way when really it was The New Deal that lead us to the point where we are now; in trying to decide what our next move is. 

 

Q8- Do you agree, with Felix Frankfurter, that the Founding Fathers refused to write limitations and qualifications into the U.S. Constitution? 

 

I don’t agree as far as refusing to write them into the Constitution because although hidden to some, there really are limitations and qualifications written.  Almost everyday I hear from my government teacher, Mr. Reed, the limitations of each branch which are outlined in Articles I-III. 

 

Q9- Compare the manner in which the U.S. Constitution was changed after the Civil War with the way changes were made to the Constitution during the New Deal era.

 

 After the Civil War, the Constitution was changed by the people’s vote and obviously since we had fought a war over the issue of slavery, they almost had to have a say because they were the ones that fought so hard for what was believed by each party.  During the New Deal era, the Constitution was changed under the peoples’ noses when FDR made everyone think that they had a say in what was happening; also, he gave the impression that the people knew exactly what was going on. 

 

Q10- U.S. Constitution prevents legislators from making the needs of Americans their priority. This paragraph claims that the expressed purpose of the U. S. Constitution is to form a more perfect union and provide for the general welfare. (fill in the blank)

 

Q11- FDR made a political speech for the times; the eve of WW II. References were made in his speech that may be relevant to our position in the world today. Comment on the similarities.

 

 FDR spoke about the people who see what the government is doing all the time and sees this as unconstitutional.  He also spoke about the way the government is run and what rights and freedoms we can enjoy that are enabled to be changed.  FDR said that the founding fathers make the constitution so that it could fit the needs of the people in any generation.  He believes that it is not to be misinterpreted but is what we should live by as a whole because it will change to fit the people’s needs, wants, and desires.

 

Q12- Comment on whether you think the "new idea" come to "dominate thought about government" is still the dominate idea or has the past 70 years turned it into an old idea that needs to be reformed? Make these comments brief as this question is the crux of the paper you will be preparing for submittal.

 

Although the government “controls” the people, it is ruled by the Constitution. Congress has the amendment powers that allow almost any type of spending to be necessary. My thoughts are that the people of this great nation will someday lose faith in our government and when they do, it will be a catastrophe.  America is always changing and finding new integrations that the citizens of the past could never even dream, somehow, the Constitution was designed to fit those needs the way it was originally written.  When the government acts in an inappropriate way and it’s proceedings are not precisely written in the Constitution, the outcome is unknown.  

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