Edwin Meese III, the 75th Attorney General of the United States, writes in an essay entitled, “The Meaning of the Constitution,” that “Part of the reason for the Constitution’s enduring strength is that it is the complement of the Declaration of Independence. The Declaration provided the philosophical basis for a government that exercises legitimate power by “the consent of the governed,” and it defined the conditions of a free people, whose rights and liberty are derived from their Creator. The Constitution delineated the structure of government and the rules for its operation, consistent with the creed of human liberty proclaimed in the Declaration.”
Further, Meese writes, “By the diffusion of power – horizontally among the three separate branches of the federal government, and vertically in the allocation of power between the central government and the states – the Constitution’s Framers devised a structure of government strong enough to ensure the nation’s future strength and prosperity but without sufficient power to threaten the liberty of the people.”
President Obama took the following oath, as prescribed in Article II, Section 8, —“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” [emphasis added] Therefore, he should begin by remembering that our freedom rests in several important themes as established by the Constitution*:
The first, reflecting the mandate of the Declaration of Independence, is that the ultimate authority of a legitimate government depends on the consent of a free people;
A second fundamental element of the Constitution is the concept of checks and balances. The principle of separation of powers, as James Madison put it in The Federalist No. 47, the “preservation of liberty requires that the three great departments of power should be separate and distinct,” for, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”; and
Thirdly, the concept of Federalism was as equally important to constitutional design. The institutional design was to divide sovereignty between two different levels of political entities, the nation and the states. This would prevent an unhealthy concentration of power in a single government. It would provide, as Madison said in The Federalist No. 51, a “double security…to the rights of the people.”
Mr. Meese concludes his essay by writing, “The Constitution – the original document of 1787 plus its amendments – is and must be understood to be the standard against which all laws, policies, and interpretations should be measured. It is our fundamental law because it represents the settled and deliberate will of the people, against which the actions of government officials must be squared. In the end, the continued success and viability of our democratic Republic depends on our fidelity to, and the faithful exposition and interpretation of, the Constitution, our great charter of liberty.” [Emphasis added]
For Freedom’s Sake!
* The three themes are gleaned from the essay by Edwin Meese entitled, “The Meaning of the Constitution”, published in, “The Heritage Guide To The Constitution”. Copyright 2005 by the Heritage Foundation
4 Comments
Question:
Do you believe that the Constitution is meant to be a dynamic or a static document? Why/why not, and doesn’t it seem that as times change, some Constitutional laws must be amended?
Thanks for the question Jen. Too busy for a “good” thoughtful answer right now. Will get to it tonight or tomorrow.
For Freedom’s Sake
Jen, I am going to give you a short answer, if you don’t mind, to your questions. First, let me thank you for engaging in this blog with a thoughtful post, you are the kind of reader that we are looking for, weather we agree or not.
Your question, “Do you believe that the Constitution is meant to be a dynamic or a static document?” Since I don’t know exactly what you may mean by “dynamic” or “static” document, let me say I am in the “Originalist” camp. I will provide 6 summary statements as to why I am in that camp that I have taken from the work of David R. Forte, the Charles R. Emrick, Jr.-Chlfee Halter & Griswold Professor of Law at Cleveland State University (that is a mouthful). Forte is a graduate of Harvard College, and holds a Ph.D. from the University of Toronto and a law degree from Columbia University.
Dr. Forte writes, “Originalism is championed for a number of fundamental reasons:
First, it comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times. The Framers of the Constitution of 1787 knew what they were abbout, forming a frame of government for “ourselves and our Posterity.”
Second, originalism supports legitimate popular government that is accountable. The Framers believed that a form of government accountable to the people, leaving them fundamentally in charge of their own destinies, best protected human liberty….Originalism sits in frank gratitude for the political, economic, and spiritual prosperity midwifed by the Constitution and the trust the Constitution places in the people to correct their own errors.
Third, originalism accords with the constitutional purpose of limiting government. It understands the several psrts of the federal government to be creatures of the Constitution, and to have no legitimate existence outside of the Constitution. The authority of these various entities extends no further thatn what was devolved upon them by the Constitution. “[I]n all free States the Constitution is fixd,” Samuel Adams wrote, “& as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation.” (Yea, the Framers has a funny way of writing)
Fourth, it follows that originalism limits the judiciary. It prevents the Supreme Court from asserting its will over the careful mix of institutional arrangements that are charged with making policy, each accountable in various ways to the people. Chief Justice John Marshall, overtly deferring to the intention of the Framers, insisted that “that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” In words that judges and academics might well contemplate today, Marshall said,
“Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” (Marbury v. Madison)
Fifth, supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified that document. It affirms that the Constitution is a coherent and interrelated document, with subtle balances incorporated throughout. Reflecting the Founders’ understanding of the self-motivated impulses of human nature, the Constitution erected devices that work to frustrate those impulses while leaving open channels for effective and mutually supporting collaboration. Is is, in short, a remarkable historical achievement, and unbalancing part of it could dismantle the sophisticated devices it erected to protect the people’s liberty.
Finally, originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so. If evidence demonstrates that the Framers understood the commerce power, for example, to be broader than we might wish, then the originalist ethically must accept the conclusion. If evidence shows that the commerce power was to be more limited than it is permitted to be today, then the originalist can legitimately criticize governmental institutions for neglecting their constitutional duty….The concept of the Constitution of 1787 as a good first draft in need of constant revision and updating – encapsulated in vague phrases such as the “living Constitution” – merely turns the Constitution into an unwritten charter to be developed by the contemporary values of sitting judges. [Emphasis added}
In short, Jen, this is where I stand. The Constitution prescribes how it is to be amended for correcting injustices. This process is to be run through the legislative branch and/or through the prescribed Constitutional amendment process. However, judges are not to legislate from the bench. The principle of the separation of powers, wonderfully woven into the Constitution, is designed to protect our freedoms from the whims of those currently holding the reins of power. I am grateful for that.
For Freedom’s Sake
The Constitution can be amended … but the process for amending it is formidable … the founders structured it that way so that it could be changed only with a massive and broad support from all parts of our society: urban, rural, north, south, east, and west. This would make the Constitution more static than dynamic.