Burlington High School

Burlington Kansas

Teacher: Mrs. Devra Parker

Open to Interpretation

By: Lacy Lawrence

12^th grade

There are many types of governments in this world today.  Some are secular and some are non-secular.  Some are dictatorships and some are democracies. However, it didn’t always used to be this way.  Back in the 1700’s monarchies were the main [method] of rule.  The American government was the first to break away and form a democracy.  Part of the reason our way of running this country works so well is because the flexibility our Founding Fathers wrote into the Constitution.  I believe that incorporating a living Constitution with the enumerated powers is the best way to govern a country.

Now, Roger Pilon believes today that Congress abuses the Constitution and has interpreted it incorrectly.  I don’t believe this is so.  The men who wrote this document purposely allowed the possibility for different interpretations. They did this because they understood the advances of technology and ideas throughout time would change.  Also, it was evident the Constitution would need to change, or it could not last.  The biggest proof of their preparation for these changes is article 1, section 8, clause 18:  "[The Congress shall have Power] . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

This clause is often called the “Necessary and Proper Clause” or the “Elastic Clause.”  It is called this for many reasons.  One reason is that it can be interpreted to either broaden or shorten Congress’ ability to make laws.  However, I believe it was written to allow Congress to make laws on things not specifically added into the Constitution.  A good example of this is the controversy over illegal downloading on the internet.  Of course there is nothing in the Constitution about this subject, but the Elastic Clause allows congress to pass laws accordingly.

Roger Pilon argues that this clause would give unlimited power of making laws to Congress.  However, with the checks and balances written into our government, I don’t think anything unreasonable would get passed; especially as easily as he makes it sound.  It can take years to make a bill into a law, and it is so easy to get the bill shot down in committee in either House.

Pilon brings up that Madison and the other Fore Fathers did not intend the vagueness [of] the Constitution to be used in this way.  He uses such examples as the New Deal in Franklin Delanor Roosevelt’s presidency, and also the General Welfare Clause.  However, I believe such instances are exactly why the Constitution what written the way it was.  FDR’s New Deal helped greatly with the Depression.  It allowed jobs for people and gave new hope. Why would the Founding Fathers want to prevent something like this?

If we were to eliminate the living Constitution, our government would crumble.  Our Constitution thrives on having both types, enumerated and living.  That is what makes our government so unique and great.  It’s like macaroni and cheese; we can’t have one without the other.

I do understand the fear that Pilon has.  He is afraid of a more corrupt government than what we already have.  And, yes, it is possible, and the living Constitution does make that easier.  However, if we followed the constitution strictly, then a lot of privileges we people have might be lost.  America prides itself in being advanced in democracy and that wouldn’t be possible without the living Constitution.  Risks are a part of life; sometimes one has to take chances in order to do something good.

Many people think the government has too much power, but the more time I spend studying the Constitution, I see all the limitations there are.  In Article One, there are two sections dedicated to what is not allowed.  Once again, I believe our Founding Fathers knew that things would change with the time.  Some things they saw necessary to forbid, but some things were able to change if needed.  This is what allowed the Constitution to last as long as it has, and for many more years to come.

Thus, I believe our Founding Fathers intentionally created our Constitution with possibilities of different interpretations.  This is how they knew this document would last more than a just a few years.  Roger Pilon’s fears are legitimate but a little extreme.  He forgets about all the checks and balances written in.  The Constitution is a great document open to interpretation, just as the Fore Fathers intended.

Answers To Questions Prompted By The Required Reading

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

 Describe what happened in 1938, according to his testimony.

·       A bifurcated Bill of Rights is when the Bill is separated into two parts.  When Roger Pilon uses this terminology, he is comparing the enumerated powers to the living constitution; both of which are in our constitution.  In 1937 the Court removed vital parts to the doctrine of enumerated powers.  This flowed over into 1938 where it was decided to have the two parts to the constitution and also led into the split judicial review.

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

·       Three fundamental rights are, speech, voting, and a fair trial.

·       Three non-fundamental rights are, property, contract, or ordinary commercial relations.

·       Non-fundamental

Q3- Define:

Enumerated powers- Powers written down

Living constitution-Implied powers

Politicizing the constitution- Making the constitution more political

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

·       He claims that a living constitution is worse than no constitution because a living constitution allows to much lenience and allows for the respect of law to dwindle.

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

·       Moral legitimacy is what one thinks and believes is correct; such as gay marriage. 

·       Political Legitimacy is what politicians promote; such as tax deduction

·       Legal legitimacy is what the law dictates; such as running a red light

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.

·       Loss of Legitimacy

·       Judicial Methodology

·       Disrespect for the Constitution

·       Constitutional Integrity

·       Economic Implications of effectively unlimited government

·       I think that constitutional integrity

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?

·       Constitution’s preordained destiny as a living document

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

·       Yes, because they were very fearful of having a central government that was too powerful.

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.

·       Both changed similarly due to the advancements in technology in both of these time

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 ____is to prevent too much power to one person _______. (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.

·       We need to become one nation, and be like our fore fathers; not so separated.   We should have one or the other, but not both constitutions

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.

·       I believe the new deal has affected the constitution greatly

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