Jim was the featured speaker at the Lake Oswego "Return to the Constitution" Candidate Forum on Monday, September 13, 2010. Here is the final version of his speech.
Brief Commentaries on the Occasion of Constitution Day 2010.
The United States Constitution is, I believe, the most significant legal document in human history. Yet many Americans, including many who serve as public officials in national, state and local government, have lost sight of the Constitution’s fundamental principles and values. A “whatever it takes” philosophy has come to dominate our political debates and policy solutions. Pragmatism and partisanship have overtaken principle.
Over the past six months while campaigning in every county in Oregon, I have witnessed a pervasive and impassioned desire to rededicate our nation to the founding constitutional principles of limited government, federalism and individual freedom. During the week leading up to Constitution Day on September 17, and throughout the year, I encourage Oregonians to reflect on the historical foundations and core principles of the United States Constitution.
I have recorded five short commentaries to encourage and facilitate this week of reflection on, and rededication to, constitutional government in this great nation. The topics include:
- Historic origins and fundamental values of the U.S. Constitution
- A government of limited powers in a federal system
- The Bill of Rights and the protection of freedom
- Economic liberties and human prosperity
- Restoring constitutional government
Historic Origins and Fundamental Values of the United States Constitution
The true founders of the United States Constitution were the people of 18th Century America. Through their representatives in the Continental Congress, they declared themselves independent from their British rulers. They then fought to break the bonds of tyranny and to secure their “unalienable rights,” including “life, liberty, and the pursuit of happiness.” That they had the right and authority to declare themselves independent followed from the fundamental principle affirmed in the Declaration of Independence that governments derive “their just powers from the consent of the governed.”
The first constitution of the United States was the Articles of Confederation enacted by Congress in 1777 and finally ratified by all thirteen states in 1781. The Articles established a government of the United States, while recognizing the continuing sovereignty of each state. This government was successful in prosecuting the revolutionary war, but after the British surrender in 1783 the weaknesses of the Articles became apparent. Central among those weaknesses were the national government’s limited authority to raise revenue through taxation and its inability to prevent the states from engaging in trade wars among themselves and with foreign nations.
A convention to address the need for national regulation of interstate and foreign commerce was called for Annapolis, Maryland, in 1786. Only twelve delegates from four states attended the Annapolis meeting, but their efforts led to the Philadelphia Convention of 1787 at which the Constitution was drafted
A proposed Constitution emerged from the Philadelphia Convention only after a long, hot, summer of intense negotiation and serious compromise. The so-called Great Compromise resolved tensions between the large and small states by proposing a bicameral legislature in which representation in the House was based on population while each state would have equal representation in the Senate.
Once that was agreed to, the core point of disagreement was over the balance of power between the national and state governments. Some delegates, led by Alexander Hamilton of New York, sought to centralize power in the national government. Other delegates, led by George Mason of Virginia, urged a strict limitation on national power. Ultimately, the delegates agreed to a national government of enumerated powers with all other powers to remain in the states.
The proposed Constitution provided that it would take effect in the ratifying states once conventions elected by the people of at least nine states had agreed. On June 21, 1788, New Hampshire became the ninth state to ratify. By May of 1790 all thirteen states had agreed, but not without significant opposition from the so-called Anti-Federalists who feared too much power in the national government. They also were concerned with the absence of a Bill of Rights. Indeed, some states, including New York, only agreed to ratify the Constitution on the promise that Congress’s first order of business would be to propose a Bill of Rights in the form of amendments to the Constitution.
The lengthy debates over the summer of 1787 in Philadelphia involved many issues and sometimes threatened to result in failure. But the final proposal, as ratified by the people of all thirteen states, reflected three basic principles. First, government authority in the United States is divided between the national and state governments in a federal system. Second, the powers of the national government are limited to those enumerated in the Constitution, for the most part in Article I, Section 8. Third, the core purpose of government is to secure the equal liberties of the people. The first two principles are directly related to the third, because every expansion of government power is a necessary intrusion upon the freedoms of the people.
A National Government of Limited Powers in a Federal System
The framers of our Constitution adopted a federal system for three reasons. First, most people agreed on the need for a national authority to overcome the state enacted trade barriers that were crippling the economy. Second, the political reality of thirteen independent states with widely varying interests made the retention of power by state governments a practical necessity. Third, the framers understood that individual freedom is better protected when the powers of government are divided. This was accomplished in part by the horizontal separation of powers within the federal government, but of equal importance to liberty is the vertical division of powers among the national, state and local governments.
The relationship between the allocation of government power in the federal system and individual liberty is often overlooked. Advocates for greater state power often speak in terms of “states’ rights” and federal excesses. While the historic powers of state governments have been compromised over the last century and we should be concerned to restore a proper balance between national and state authority, we should also remember that the biggest threat to liberty is the concentration of power in any single government.
Although we tend to think of the federal system as dividing power between the state and federal governments, the reality of American government is far more complex. We have a vast array of local governments including counties, municipalities, school districts, irrigation districts, library districts and many more. This rich array of government entities divides authority to better serve the public needs while reducing the possibilities for abuse of power. As a general principle we should prefer local to state, and state to national, for both of these reasons – better government with less threat to liberty.
At the same time we must be attentive to the constitutional principle of separation of powers within federal and state governments. The framers of the Constitution understood well the importance to liberty in separating the distinct functions of the legislative, executive and judicial branches of government. With the rise of the administrative state since the New Deal we have witnessed a steady growth in the powers of the bureaucracy at the expense of Congressional authority and popular sovereignty.
The New Deal also marked the beginning of a long decline in state power and individual freedom as Federal powers have expanded. In an effort the pull the nation out of the Great Depression, the Roosevelt Administration pushed for vast federal programs and new regulations. All of this growth in federal power was based upon the commerce and general welfare clauses of the Constitution. Ever since, the commerce clause, which authorizes Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” has been found by the Supreme Court to authorize most Federal economic, environmental, health and safety regulations. In only two cases since the New Deal has the Supreme Court invalidated legislation as exceeding the commerce power.
The pending challenge, brought by over twenty states, to the new health care bill’s individual mandate to purchase health insurance, will determine whether or not there are any remaining limits on Federal power. Federal regulations in the name of regulating interstate commerce have reached to the most local of commercial activity, but never before has Congress mandated that individuals participate in commerce. The outcome of this lawsuit is critical to the future of American federalism and individual freedom.
The Bill of Rights and the Protection of Individual Liberty
As originally proposed by the Philadelphia Convention, the Constitution did not include a bill of rights. The decision not to include a bill of rights was conscious. Most of the delegates, including James Madison, feared that an enumeration of rights in the Constitution would be understood to mean that American citizens had only those rights listed.
The idea that individual liberties in relation to the federal government are limited to those enumerated in a bill of rights was in direct conflict with the beliefs of every delegate to the convention. The framing generation adhered to the “self-evident” truth expressed in the Declaration of Independence that “all Men are created equal, [and] that they are endowed by their Creator with certain unalienable Rights. . . .” The framers believed in natural rights, and to a person rejected the idea that rights are granted by a constitution or any other legal document. People have rights because they are people.
A majority of delegates to a few state conventions, notably New York, opposed ratification of the Constitution in the absence of a bill of rights. They agreed to ratify the Constitution on the promise that Congress would propose a Bill of Rights as one of its first actions. In an act of supreme good faith, Congress submitted a Bill of Rights to the States in the form of ten amendments to the Constitution. The Bill of Rights took effect when three fourths of the states had ratified it in 1791.
It is important to note that the Bill of Rights and subsequent amendments are not the only expression of liberty in the Constitution. Article I, Section 9 recognizes the right to habeas corpus and the right not to be subject to bills of attainder or ex post factor laws. Article I, Section 10 affirms that the right of contract will not be violated by the state governments. The right to trial by jury is recognized in Article III, Section 2, and Article IV, Section 2 requires each state to recognize the privileges and immunities of citizens of all states.
But most individual rights are enumerated in the Bill of Rights and a few subsequent amendments. The 14th Amendment affirms that the states must not infringe the rights to equal protection, due process and the privileges and immunities of national citizenship. The 15th, 16th, 24th and 26th Amendments all extend the right to vote and thus reaffirm the framer’s commitment to natural rights. But the clearest statement of the natural rights philosophy, and the clearest rejection of the idea that rights are granted by government or by the Constitution, is the 9th Amendment which states that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Until 1897, the Bill of Rights was understood to apply only as against the federal government. This followed from the statement in the 1st Amendment that “Congress shall make no law. . . .” Claims of constitutional right against state governments had to rely on appeal to state constitutions and state courts. But in 1897 the Supreme Court held that the takings clause of the 5th Amendment, as applied to the states through the due process clause of the 14th Amendment, required state governments to provide just compensation when taking private property for a public purpose. Over the ensuing half century most provisions of the Bill of Rights were held to apply to state governments on the theory that they were incorporated in the 14th Amendment due process clause.
The gradual and steady expansion in the scope of individual rights guaranteed from infringement by both the federal and state government has been offset to some extent over the past half century by a growing reliance by the courts on balancing tests. Although the rights recognized in the Constitution and the Bill of Rights are generally stated as absolutes, the Supreme Court has increasingly resorted to balancing individual rights claims against public interest claims by the government. Thus, an individual’s property might be taken without compensation if a court finds that the public interest served outweighs the burden on the individual. Or an individual’s right to equal protection of the laws might be compromised if the government has a “substantial” or a “compelling” interest. Regrettably, this balancing of individual and public interests by unelected judges generally favors the state and thus erodes the liberties of American citizens.
Economic Liberties and Human Prosperity
Discussions of liberty and individual rights generally have reference to political and civil liberties like freedom of speech, the right to vote and the rights of the accused in criminal proceedings. These liberties are fundamental in a democratic republic founded on the belief that legitimate government power derives from the consent of the governed. Individuals must be free to express their opinions, vote as they choose, and suffer no fear of intimidation or coercion by government.
But in their day to day lives, individuals are most impacted by their economic liberties. The rights to acquire, possess and use property; to enter into and enforce agreements with others; to expect that government regulations will treat similarly all similarly situated individuals; and to reap the rewards of one’s creations and labors – these are the stuff of everyday life and the foundation for human prosperity and strong communities.
The right to property is protected by the 5th Amendment which provides that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The second portion of the provision is sometimes referred to as the “takings clause” or the “eminent domain clause.” It is a recognition that the government can take private property, but only if it is for a public purpose and if just compensation is paid. Regrettably, this fundamental guarantee has been more honored in the breach than the observance. Compensation is seldom required where regulations clearly limit vested property rights, and the public use requirement has come to impose no constraint on private gain through eminent domain abuse.
Freedom of contract has been similarly abandoned to public regulations altering existing contractual agreements. Despite early case law confirming that the rights to engage in gainful employment and private enterprise are among the privileges and immunities protected by the Constitution, the Supreme Court has generally avoided reliance on the Constitution’s privileges and immunities clauses as affirmation of these individual liberties.
The recognition and protection of these economic liberties are essential to a free enterprise system. People will not invest in the development and improvement of land and other natural resources without a reasonable expectation that they will benefit from their investment. Property rights are the basis for such expectations. Nor will people engage in commercial transactions without assurance that contractual agreements will be respected and enforced. The framers of the Constitution understood that property and contract are the critical elements of any free market economy.
At least since the New Deal, however, there has been a gradual erosion of the Constitutional protection of these economic liberties. Over time, the Supreme Court has come to accept the idea that economic liberty claims are deserving of lesser protection than other liberty claims. This view is rooted in the conclusion that economic liberties are less important than political and civil liberties. But there is no basis for this second class status of economic liberties. In the words of Justice Potter Stewart, “the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right, . . .”
Respect for economic liberties, like constitutional government itself, is part and parcel of the rule of law. Without the rule of law, neither civil society nor economic prosperity are possible.
Restoring Constitutional Government
Every law requires interpretation. It is impossible for lawmakers to anticipate every eventuality. This is particularly true of constitutional law which is meant to be foundational – to establish the guiding principles and institutions of government. The challenge is to assure that present day interpretations are consistent with those guiding principles.
The reality is that every government official must constantly interpret the constitution as they carry out their official duties. That is why they take an oath of office to defend and uphold the Constitution. But even if every public official does his or her very best to be true to the guiding principles, there will be disagreements about the meaning of particular constitutional provisions. Someone must have the final say in interpreting and applying the Constitution.
Since the founding of the nation, that role has been performed by the courts, and finally by the Supreme Court. This is not because judges have superior knowledge or interpretive talents. It is, said Chief Justice John Marshall in the case of Marbury v. Madison, because it is in the nature of the judicial function to say what the law is. To resolve the disputes that come before them, courts must say what the law is.
This does not mean that courts make the law – and that is the rub in Constitutional interpretation. What is the difference between saying what the law is and making new law? The difference, I believe, is between an interpretation that is consistent with the guiding constitutional principles and an interpretation founded on new or different principles.
Today there are competing theories of constitutional interpretation, both of which have adherents on the Supreme Court. One school of thought holds that the Constitution is a living document that the courts must adapt over time to changing conditions and circumstances. The other school of thought insists that present day interpretations must be grounded in framer intent and their guiding principles.
Only the latter view is consistent with the very concept of constitutional government. If the courts are free to adapt particular constitutional provisions to their perceptions of present day needs based on changed circumstances, the constitution is no longer the fundamental law of the land. If we embrace the living constitution theory, we abandon the rule of law to the rule of judges.
There are three ways in which Congress can help to restore the rule of law to the interpretation and application of
our Constitution. First, the Senate must consent only to judicial nominees whose record and personal commitment
evidence that they will be faithful to the guiding principles of the Constitution. Senators from both parties must put aside their personal and party preferences for particular results and demand only that judges be dedicated to the rule of law
and the foundational principles of the Constitution.
Second, all members of Congress must use their legislative powers to correct the errors of the courts. When the
courts go astray of constitutional principles, it is for Congress and the People to correct those errors, including
by constitutional amendment.
Third, every member of Congress has taken an oath to defend and uphold the Constitution. This requires both Senators and Representatives to assure themselves that every action they take is within the Constitutional power of the federal government. It matters not how serious the problem or grand the proposed solution, if Congress lacks the power, no law should be passed.
The first line of defense against unconstitutional government is a Congress committed to respecting the constitutional limits of its powers.