Monday, October 20, 2008

Making It Up

"Rarely do we hear a message of sacrifice -- unless it is a justification for more taxation and transfers of wealth to others. Nor do we hear from leaders or politicians the message that there is something larger and more important than the government providing for all of our needs and wants -- large and small." — U.S. Supreme Court Justice Clarence Thomas

Anyone that actually cares about our nation's Constitution likely feels that it has been incrementally amended without proper consent over the past few decades to mean something very different than was originally intended. If you feel this way, you're not alone. U.S. Supreme Court Justice Clarence Thomas recently lamented this course in a speech, part of which is recounted here.

Justice Thomas suggests that we as citizens have become overly focused on ourselves. By turning Kennedy's call for service on its head, Thomas says, "The message today seems more like: Ask not what you can do for yourselves or your country, but what your country must do for you."

This attitude is reflected in our law. Our Constitution has only been successfully amended 27 times, and two of those amendments cancel each other out. Today we no longer bother to amend the Constitution when we want to change how our government does business. We just simply pass laws that are blatantly out of line with the document's original intent. We get five justices to decide that we (or even other nations) now think differently, so the document has magically changed meaning. Why go through the pain of attempting an amendment when these other avenues are much easier?

Thomas admits that "there is no one accepted way of interpreting" the Constitution. But that does not mean that he thinks this is an acceptable situation. He bluntly says, "Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up."

As a nation, we have increasingly been following this latter course of action. We've been making it up as we go along. Imagine if we did that with any other legal document. Lawyers and judges would go berserk if we suggested that we can simply change the original intent of a document at our whim. (Although some of our politicians want to let judges do this with mortgage contracts.) This would destroy our ability to make plans and decisions, since any agreement could be capriciously re-interpreted.

I had a friend ask why the framers' original intent is any more important than what we think today, and why we should consider ourselves bound by words written down by people that are long dead.

The Constitution is the document upon which our government functions. If you don't have that, you don't have a valid governing system. In the absence of a document with solid meaning there is no reason for any citizen to submit to the demands of government or to consider such demands to have any validity, except on the basis of tyranny and fear.

The framers of the Constitution never intended that their word would be the last word on the matter. That's why they established a method for amending the document. If we're going to constantly make end runs around that method — in essence amending the Constitution by stealth rather than by the consent of the governed — we no longer have any valid basis for government.

Before we condone making it up as we go along, we ought to consider Thomas' caution:
"No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial."
It seems that Americans in general are quite ignorant of what the Constitution says and how it impacts their lives. Thomas says:
"As I have traveled across the country, I have been astounded just how many of our fellow citizens feel strongly about their constitutional rights but have no idea what they are, or for that matter, what the Constitution says. ... [I]f one feels strongly about his or her rights, it does make sense to know generally what the Constitution says about them. It is at least as easy to understand as a cell phone contract -- and vastly more important."
Instead, we seem to develop some kind of emotional meaning about how something ought to be done without any consideration of the total impact such a course of action might have. We want what we want. We want it now. And we want somebody to provide it for us. As Thomas puts it, "Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . ."

The fruits of our me-now attitude is that we get the kind of government we deserve.


Chris said...

I have been mulling over the same question your friend asked recently too. It's clear to anybody that knows anything about the Constitution that we no longer even pretend to follow the principles laid down by the founders. I've always felt this was the case, but never formulated a response nearly as good as Thomas's. Thanks for the post.

Tom said...

Well done. It ties in with some of what I've been studying of group behavior, and the importance of a common and explicit set of ground rules.

Scott Hinrichs said...

I have noted that my third-grader likes to make up games for he and my Kindergartener to play. He often changes the rules during the game (to his benefit, of course). The Kindergartener ends up getting frustrated because she finds that no matter what she does, there's no way she can ever win or even plan to do what it takes to win.

Something like this happens in financial markets as well when the government interferes enough to change the rules of the game while the game is in play.

We do need a commonly accepted set of rules to play by upon which there is broad agreement. Without that, there is no legitimacy.

Anonymous said...

I just wrote an article on the same subject:

Let me know what you think!