Iola High School

Iola, Kansas

Teacher: Loretta Arnold

Our Living Constitution

By Caitlin Brigham

12th Grade

 

 “The best government is that which governs least.” This statement was the motto of The United States Magazine and Democratic Review, and I believe it to be true.  I agree with Pilon’s assertion that what the federal government does is often unconstitutional and that we should remedy this.  Our government should not hold all the power.

 

A government is a man-made entity.  It can be changed and manipulated by people, such as ourselves.  We can make changes, and we should make changes.  These changes should start by more clearly defining the Constitution.

 

The Constitution was written in hopes of having a limited government.  James Madison wished the new government’s powers to be “few and defined.”  Thomas Jefferson was a supporter of the separation between church and state.  [He believed] if the government plays a lesser role in our lives, citizens will be able to govern themselves and then ultimately decide what is best.  Yet, our country has grown so large, that it’s difficult to allow citizens to govern themselves.  The founders of the Constitution probably never could have imagined that they would be writing the foundation for the most powerful country in the world.  Due to this, the Constitution must be more clearly defined….  An excellent example of this focuses on the Second Amendment, which states that a citizen possesses the right to bear arms.  When the Constitution was written, war could happen in one’s own backyard and wild animals could race through one’s own house.  Being able to protect one’s self was vital.  In today’s world, guns are often used as a medium to threaten or kill.  Limitations on weapons are necessary, just as limitations on other amendments must be made to keep up with the changing times.  The Constitution was written finely for it’s time, but in today’s defined society, the vagueness of the Constitution causes much confusion and debate.

 

It’s a simple hope that we practice what we preach.  Yet, in our country today, this is difficult to achieve.  We may not agree with our government’s stance, yet the government consistently takes money from us for what they consider reasonable.  Therefore, democracy makes us monetarily support issues in which we don’t believe.  Henry David Thoreau once refused to pay taxes due in part to his disgust for the state of his country at the time.  He stated, “This people must cease to hold slaves, and to make war on Mexico, though it cost them their existence as a people.”  Citizens should make sound judgements and fight for what they believe in.  Giving up liberties for the exchange of having a better society in the future only seems fair, does it not?

 

We cannot give the government the power to spend billions of dollars as they see fit.  Billions of dollars could revolutionize the world, feed the starving, and change our environment.  Instead, the government spends billions on war, oil, paying cabinent members lofty salaries, and other frivoloities.

 

It is commonly known that our country is in debt.  In fact, in 2001, the federal government could not account for 17.3 billion dollars spent.  Millions of citizens look to the President and members of Congress to help remedy our financial situation.  While it is true that trying to fix such a large-scale problem is not easily done, it must be done.  Our nation’s economy plays a pertinent role throughout the world, reaching far beyond the boundaries of the United States.  Our country’s financial spending is a matter of global importance.

 

While some issues are deemed vital to the country as a whole, such as going to war, many issues should be brought back to a state level.  How does the federal government know which roads to repair in Midwest suburbia?  Local government and states should be responsible for spending local people’s money.  If many issues and organizations were brought back to a state level, the federal government could drastically reduce spending.

 

The government does not follow the Constitution.  We need a better defined Constitution and we need to keep up with the changing times.  Yet, we should also respect the wishes of the men who created the foundation of our country, the Constitution.  The founders of the Constitution would have wanted our government to spend citizen’s money wisely.  Before our country takes a drastically different course than what it was intended to, citizens should make change.  It is up to the future citizens to [honor] the wishes of the past founders.  We must not be apathetic.  We must not be despondent.  We must make change, and we will.  We hold the power.

 

Resources:

·        http://www.bartleby.com/73/753.html

·        http://thoreau.eserver.org/civil1.html

·        U.S. Department of the Treasury, 2001 Financial Report of the United States Government, p. 110, http://www.fms.treas.gov/fr/

 

Answers to the Required Reading Questions

 

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

 Describe what happened in 1938, according to his testimony.

 

“In 1937 the Court eviscerated the doctrine of enumerated powers. Then in 1938 it bifurcated the Bill of Rights and invented a bifurcated theory of judicial review. For the purpose of these hearings, it is one half of the 1937 step that is most important, the rewriting of the General Welfare Clause; but the rest merits a brief discussion as well, to give a more complete picture of this constitutional revolution.”

 

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?

 

“The doctrine of enumerated powers now effectively eviscerated—the floodgates open for the modern redistributive and regulatory state to pour through—only the Bill of Rights stood athwart that unbounded power. So in 1938, in famous footnote 4 of United States v. Carolene Products, 31 the Court addressed that impediment to Leviathan by distinguishing "fundamental" and "non-fundamental" rights, in effect, and inventing a bifurcated theory of judicial review to complement that distinction. If a law implicated "fundamental" rights like speech or voting, the Court would apply "strict scrutiny" and would doubtless find it unconstitutional. By contrast, if a law implicated "non-fundamental" rights like property, contract, or the rights we exercise in ordinary commercial relations, the Court would uphold the law as long as there was some "rational basis" for it. 32 That judicial deference to the political branches regarding economic rights, coupled with strict scrutiny for political rights, amounted to the democratization and to the politicization of the Constitution, to opening the door to political control of economic affairs, public and private alike, beyond anything the Framers could have imagined. 33”

 

Q3- Define:

Enumerated powers

Living constitution

Politicizing the constitution

 

“Taken together, the Preamble, the first sentence of Article I, the inherent structure of the document, and especially the Tenth Amendment indicate that ours is a government of delegated, enumerated, and thus limited powers.”  Enumerated powers are the specific, limited powers that that the government can exercise due to the Constitution.”

” A living constitution," [can] be interpreted to maximize political discretion”

 

“[The] judicial deference to the political branches regarding economic rights, coupled with strict scrutiny for political rights, amounted to the democratization and to the politicization of the Constitution, to opening the door to political control of economic affairs, public and private alike, beyond anything the Framers could have imagined.”

 

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

 

“In fact, a "living constitution," interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain. And how long can "anything goes" for officials go unnoticed by the citizenry? A general decline in respect for law must follow.”

 

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


”First, and perhaps most important, is the loss of legitimacy—moral, political, and legal. Today, we tend to think mainly of political legitimacy, failing to see how the several grounds of legitimacy go together. We imagine that the people, by their periodic votes, tell the government what they want; and to the extent that it responds to that expression of political will, consistent with certain state immunities and individual rights that might check it, the government and its actions are legitimate.”

 

Killing is morally illegitimate.  Obeying the law is legitimately legal, although it may not always be correct.  Lobbyists buying off senators is an example of political illegitimacy.

 

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.

 

“That legacy has many implications. Let me distinguish five. First, and perhaps most important, is the loss of legitimacy—moral, political, and legal.  [The] second untoward implication of our departure from the Constitution is the chaos that follows for law more generally. 39 The judicial methodology the Constitution contemplates for most constitutional questions is really quite simple. Assuming a court has jurisdiction in a case challenging a given federal statute, the first question is whether Congress had authority to enact the statute. If not, that ends the matter. If yes, the next question is whether and how the act may implicate rights, enumerated or unenumerated. Closely related to those two implications is a third: disrespect for the Constitution entails disrespect for the rule of law itself.  Fourth, when constitutional integrity declines we lose the discipline a constitution is designed to impose on government. A constitution makes it harder for government to act, which is one of the main reasons for having one. This implication speaks to one of the basic functions of a constitution, which is not only to empower but to limit the government that is created through it. In the original position, when we created and ratified the Constitution, we agreed to limit the government's power as an act of self-discipline. We could have set no limits on the government's power, of course; but that would have left us to a future determined by the political winds, and experience had taught us the perils of that course. Thus, we struck what we thought was a careful balance, giving the government enough power to do what we thought it should do, but reserving to ourselves the liberty appropriate to a free people.  Finally, and closely related, let me little more than mention the economic implications of effectively unlimited government as I expect that others on the panel will address those more fully. By this point in human history, and especially after the collapse of the socialist experiments of the 20th century, we have a fairly clear understanding of the connection between liberty and prosperity—a connection that Adam Smith articulated so well in 1776, 44 and economists like Mises, Hayek, and Friedman, among many others, have refined and extended in our own time. What that understanding points to, once again, is the prescience of the Framers in drafting a constitution dedicated to securing our liberty and hence our extraordinary prosperity. But neither liberty nor prosperity is guaranteed by a mere parchment, especially by one that is ignored. The American economy has proven resilient enough to withstand the blows imposed by the galloping government of the 20th century—although we will never know how much more prosperous we might have been had that government been better reined. In future, however, to the extent we ignore the lessons of economics we invite the consequences that have befallen so many other nations that have chosen economic planning over economic liberty. And the basic lesson of economics is that liberty, property, and contract are the fundamental preconditions of prosperity.”

Personally, they are all very pertinent, although I feel that the first example is more so.  Legitimacy can apply to many situations.

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?

The 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? 

I don’t know what the Founding Fathers did at that time.  Ruminating upon intentions does not help solve any problems we have today.

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.

“Future generations could adjust that balance, of course, by amending the Constitution, provided sufficient numbers among them wanted to do so. In fact, that is just what happened following the Civil War. Troubled as the Framers were about the institution of slavery, which they recognized only obliquely in the Constitution to ensure union, they left its regulation to the states.  The great constitutional change took place in 1937 and 1938, during the New Deal, all without benefit of constitutional amendment; but the seeds for that change had been sown well before that, during the Progressive Era. 3 Before examining that transition, however, I want to lay a proper foundation by sketching briefly how earlier generations had largely resisted the inevitable pressures to expand government. It is an inspiring story, told best, I have found, in a thin volume written in 1932 by Professor Charles Warren of the Harvard Law School. Aptly titled, Congress as Santa Claus: or National Donations and the General Welfare Clause of the Constitution, this little book documents our slow slide from liberty and limited government to the welfare state—and that was 1932! In truth, however, Warren's despair over that slide notwithstanding, the book is a wonderful account of just how long we lived under the original design, for the most part, before things started to fall apart during the Progressive Era. And so I will share with the subcommittee just a few snippets and themes from the book, along with material from other sources, to convey something of a sense of how things have changed—not only in the law but, more important, in the culture, in our attitude toward the law.”

 

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 ___________________________. (fill in the blank)

Substandard compared to what it could be.

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.

”The history of the last 150 years of the Constitution has been an unending struggle between those who would shrivel the Constitution into a lawyer's document and a lawyer's opportunity for private obstruction, and those true to its conception as a means of founding, maintaining and promoting a great nation in the public good.” 

There is obviously still much struggle occurring today over interpretation.

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 Constitution needs to be clarified, obviously there is too much confusion occurring over interpretation.

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