(Thanks to David Flanders for this idea)
The Constitution is a constraint on the Government, not the people. Nowhere in the Constitution does it allow for “a compelling interest” on the part of government. The rights listed in the Bill of Rights are the Rights the Government is not allowed to touch. The Federal Government is only allowed to do what the Constitution states they are allowed to do. As per the Tenth Amendment all other things are left to the States or THE PEOPLE. The Fourteenth Amendment prohibits the states from usurping the people’s Constitutionally protected rights. In other words, the States cannot deny the people their rights under the Bill of Rights.
I’m not a Constitutional scholar, so I’m not going to expound on the legal aspect of this anonymous opinion. Judging by the language, I’m going to take a leap and guess the person behind this opinion is a Constitutional literalist, someone who believe the Constitution should be accepted and enforced AS IS- no interpretation allowed. It either says something or it doesn’t. Fair enough; at least we know where we’re starting from, eh?
This raises the question of what the Constitution actually is- a living, dynamic, flexible document that should change and adapt (though never in a cavalier fashion) to the world we actually live in…or a static, fixed, and inflexible document whose meaning and intent is strictly limited to its language? That’s long been a matter of some considerable debate among Constitutional scholars far more intellectually nimble than myself, so I’m going to sidestep that academic argument. I’ll just declare my prejudice and state that I believe the Constitution can only be held to hold relevance for America if we believe and accept that it must change and adapt as our world does.
At the invitation of a reader, I’m going to attempt to provide a response by breaking down this anonymous opinion, which (and this should surprise no one who knows me or has read my opinions for any length of time) I consider distressingly short-sighted, inflexible, and impractical. My opinion, based as it is on my education and experience, reflects a practical approach to the document most important to who we are as a political entity. So, without further ado:
Nowhere in the Constitution does it allow for “a compelling interest” on the part of government.
This argument depends on a couple of things:
What is the definition of a “compelling interest?” Is this held to be government looking out for itself? Or is it government doing what it’s charged to do on behalf of the American People? Do we cynically assume that government exists primarily to further its own purpose? Or do we accept former Congressman Barney Frank’s definition, which is that government is merely what we decide to do together?
What of the argument that government can only do what the Constitution expressly states? Given that it’s a product of the 18th-century world in which it was written, can (and should) we enforce the letter of the Consitution in our 21st-century world?
The Constitution may not contain the words “compelling interest,” but I believe that flexibility based on legal precedent must be the basis for interpreting the Constitution…and yes, I do believe that interpretation is a must for a 300+-year-old document.
The rights listed in the Bill of Rights are the Rights the Government is not allowed to touch. The Federal Government is only allowed to do what the Constitution states they are allowed to do.
Rights are crucial, and changing or eliminating rights is something that should be done with great care and an excess of caution. Rights, once lost, are not easily recovered and restored, so yes, this is kind of a big deal. That said, assuming that rights are immutable and unalterable is to ignore the reality of our changing world. The most obvious example is the 2nd Amendment, which I’ll leave for another time…except to ask whether 21st-century America is a place where well-regulated militias are to be considered a necessity? (Feel free to discuss among yourselves after class.)
As per the Tenth Amendment all other things are left to the States or THE PEOPLE.
As anyone with even a passing understanding of the course of American history will understand, our 21st-century world is far different than the world the Founding Fathers lived in. The relationship between the federal and state governments is today far more complex and fraught with friction and conflict than was true in the late 18th century. The 10th Amendment, which defines the relationship between the federal and state governments address the world the Founding Fathers lived…not so much the world we live in today.
The Tenth Amendment helps to define the concept of federalism, the relationship between Federal and state governments. As Federal activity has increased, so too has the problem of reconciling state and national interests as they apply to the Federal powers to tax, to police, and to regulations such as wage and hour laws, disclosure of personal information in recordkeeping systems, and laws related to strip-mining.
As Constitutional Amendments go, the 10th Amendment is the soul of brevity…the result of which is that, 300+ years later, it begs the question: Literal or flexible?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Surely, the Founding Fathers had no inkling of what the country they were laying the framework for would face. If you accept the argument that the Constitution limits the federal government to the realm of economic policy, foreign policy, and defense, with every else being left to the states, that would seem a recipe for chaos. Can you imagine 50 states each setting their own Internet policies, for instance? I could go on, but the point remains the same. How can we reasonably assume that if a power- any power- wasn’t expressly delegated to the federal government by the Founding Fathers, it devolves to the states? At some point, we have to recognize that our world is much different from the one inhabit by those who framed the Constitution…or accept a world in which chaos increasingly becomes the rule.
The Fourteenth Amendment prohibits the states from usurping the people’s Constitutionally protected rights. In other words, the States cannot deny the people their rights under the Bill of Rights.
The 14th Amendment, among other things, defines citizenship and the rights of citizens. In other words, what is the definition of American citizenship? And what rights are thus conferred upon one who meets said definition? It was proposed and passed in response to the end of the Civil War, when it became necessary to address the legal status of freed slaves.
Our anonymous commenter takes some liberties with the language of the 14th Amendment, which is interesting for someone so otherwise seemingly committed to Constitution literalism. He’s certainly correct in his interpretation of the language of the amendment, but you can’t believe in interpretation in one instance and literalism the next, depending on what’s necessary to support your argument. A Conservative interpretation (as with a more Liberal one) of the Constitution, to be credible, must perforce be consistent in its application. One shouldn’t be able to interpret the Constitution in some instances while insisting on literalism in others. For this reason, I have a difficult time accepting his argument as a serious attempt at a debate.
For my part, hewing inflexibly to the belief that the Constitution must be interpreted literally without accommodation for the world we live in is impractical. While such interpretation must be undertaken with great caution and collaboration, we must have the flexibility to adapt and adjust to our current reality. To believe otherwise is to believe in an America in which men still fire muskets and fight off attacks from hostile natives on horseback fighting with bows and arrows.
A Constitution written in the 18th century is absolutely practical and applicable to today’s world…but only if we recognize and accept that literalism doesn’t serve the interest of 21st-century America. If we can’t view the Constitution as a living, dynamic document that must (carefully and cautiously) change to reflect a world in constant flux, we have no hope of remaining a strong, coherent political and economic system ready to lead the world into the future. In the final analysis, literalism is a recipe for chaos and ultimate disaster. We cannot hope to address 21st-century issues using 18th-century rules.
