Last week, we began talking about the Constitution as a living document. We discussed how politicians support the Corporate Political Agenda through their inaction. They ignore the People's rights to further partisan agendas.
We discussed amendment droughts throughout our history and the circumstances surrounding them. There is one important thing to understand about these droughts. They are never for the good of the People. The People’s rights are only ever ignored to achieve partisan agendas.
We find throughout our history that there is only one way to end these droughts. It requires an overwhelming demand from the People.
The bottom line is the elites are afraid. Political elites fear losing power by enshrining more rights into the Constitution. The more explicit rights, the less control they have over the People they "serve".
The Corporate Political Agenda is to deny the Constitution is alive. If there was a Corporate Political Agenda instruction manual, that would be step one. Step two would be to declare "The Founders believed it was just a piece of paper."
As long as it is just a piece of paper, it can be ignored.
When we update it, the Corporate Political Agenda loses its power. When we see it as the living embodiment of the People’s rights, corporate elites lose superiority. When we demand our voice, we remind political elites they are servants and not rulers.
People often make this argument based on the legal Originalism theory. If you listened to episode XXX, then you know I have no respect for the theory of originalism. For the uninitiated, originalism is a theory on how to interpret the Constitution. Originalists claim that the Constitution must be interpreted in its original public meaning.
If the people who make this argument actually believed it, that would be one thing. It would still be wrong, but at least it would be a defensible theory. The problem is that’s not what they believe.
Originalism is nothing more than partisan hijacking of our legal system. I can prove this by discussing only one aspect of the Constitution: the second amendment. Originalists claim the second amendment can have no conditions. The right to bear arms cannot be regulated. Even if you accept that questionable assertation, it doesn’t negate originalism hypocrisy.
True originalism could not claim this amendment pertained to modern firearms. A true originalist would assert this only pertains to the types of arms that were available at the time. This would include muskets and rifles that had to be reloaded after each shot. These weapons could only fire six to eight rounds a minute and were accurate, at best, from 100 to 300 yards. An originalist cannot make a legitimate argument for a modern weapon. Today, weapons can fire up to 1000 rounds a minute and are accurate from 600 yards.
Now, I am not lending my support to a repeal of the second amendment. I use the second amendment as an example because it is extremely visible. I am calling out hypocrisy , which is all the Originalism theory is. Originalism is nothing more than a partisan legal theory used to divide us. It is a means to promote partisan agendas throughout our judicial system. It is only claimed when it aligns with partisan spin. When it doesn’t, it is ignored.
All this is before we even discuss the Founders and their views on the living nature of our Constitution.
Before we get into that, let’s look at the diverse nature of the Constitutional convention. Fifty-five men debated over what to include in the constitution. If you believe there weren’t disagreements, you are fooling yourself.
To prove it, I'll give you a challenge. Get fifty-five of your friends or relatives in a room with no windows and no air conditioning. It doesn’t even have to be people you don’t know, nor in the middle of a Philadelphia summer. Then, ask them to decide where to get dinner.
Enjoy the ride.
These men came from twelve of the thirteen states. Some lived in cities. Some lived on farms. Some had served in the Revolution. Some were shopkeepers. Some were religious, others not. There was even a delegate who was a loyalist during the war. They all had different wants, needs, and their own vision for the country and their states. These men were not going to agree on everything.
That’s how they ended up not addressing slavery, and we were gagged from even discussing it until 1808.
Much of the Constitution was written as concepts. These concepts were for future Congresses to further define as the need arose. Unfortunately, over the years defining these concepts has become less of a priority. The most specific section of our Constitution is Article one. This is where the legislative branch is defined. The delegates recognized that the legislative branch would be the most powerful. They also understood it to be the most dangerous branch of government. They didn’t want to leave too much to interpretation.
Even then, article one has sections of ambiguity. Section eight lists the powers of Congress, but most are ambiguous in how to exercise them. These are concepts that it is up to Congress to determine how to execute. To do so, it is sometimes even necessary and proper for Congress to assume implied powers. This is known as the ‘elastic’ or ‘necessary and proper’ clause.
See what I did there?
An example of this is the War Powers Act. The Constitution assigns the role of Commander in Chief to the President. It also states that Congress is responsible for declaring war. This gives Congress the implied power to limit the President’s ability to deploy troops.
Article two describes the executive branch, and it gives us very little information. If you looked no further than this article, a President has very little to do. The Vice President has nothing to do other than preside over the Senate. Even that is mostly ceremonial. (Though in the last Congress, we saw that role put front and center.) Over the years, both offices have evolved to become what we see today. Some changes have been for the better, some for the worse.
Article three tells us even less about the role of the Judiciary. It even leaves the number of Justices and judges up to Congress. The result has been controversial legislation throughout our history. It also allows for continued service during what is vaguely noted as 'good behavior'. What is considered good behavior? Who defines it? Is good behavior in 2023 the same as good behavior in 1789? My guess would be no.
As I discussed in episode two ‘7 Truths’, American values were stated in the Preamble. These were mere concepts. They were powerful and important concepts, but concepts none the less. Nothing specified how to “accomplish domestic Tranquility”. There was no indicator of how to “provide for the common defense” or “promote the general Welfare”. There wasn’t even a list of the different “Blessings of Liberty”. It was left to Congress to expand on these concepts through legislation. Sadly, Congress has failed in this necessary and proper duty. Their failure has gotten worse throughout our history.
Look at the terms used throughout. What exactly is a “natural born citizen”? Do they have to be born in America, or just born to an American? What about “Arms”? It doesn’t specify pistol, rifle, or musket. Should I be able to own an eighteenth-century cannon? What is a “high crime and misdemeanor”? Obviously, Congress believes it is up to them. They get to define it based on the partisan makeup of the House and Senate.
Should the fourth amendment apply to your car? It’s a grey area; it sometimes does and sometimes doesn’t. They had no cars in 1789.
What is “excessive bail”? I would bet a bail set at $100,000 would raise eyebrows in 1789.
What is “cruel and unusual punishment”? Is it ok to be cruel as long as it’s not unusual? What exactly makes it “unusual”? Would eighteenth century America’s definition agree with twenty-first century America’s?
The Constitution is full of concepts . The People (and their designated representatives) must define these concepts. They evolve over the centuries, interpreted to fit the times they are being exercised.
Sometimes, these concepts must be amended and legislated to ensure they are upheld. Most important of these is the concept that ALL are created equal.
This is what sets us apart from the world. No monarch, czar, sultan, or emperor told us how to set up our government. Our government was designed around a series of concepts based on equality for all.
Former British prime minister Margaret Thatcher said it best. “Europe was created by history. America was created by philosophy.”
Nothing could be truer. America came into existence under the philosophy of equality endowed by our creator. This philosophy says a nation must adapt to the needs of its citizens. It says the point of a nation is to provide for the safety and happiness of the People.
There can be no denying that our Constitution was designed to be alive, and to grow with our nation. These concepts were not locked in a particular decade. Those who deny it are fooling themselves. That, or they are being dishonest to further partisan agendas.
There is a reason we call the Founders “framers of our government.” They gave us an outline and left us to run with it. They knew they were kicking many things they couldn’t agree on down the road.
Still questioning that our Constitution is a living document? Let’s look at what three of the most influential Founders thought.
In his argument in defense of the first Bank of the United States, Alexander Hamilton defined “necessary”. Necessary “often means no more than needful, requisite, incidental, useful, or conducive to.”
James Madison and Thomas Jefferson disagreed with Alexander Hamilton’s definition of “necessary.” They did agree on the evolution of government to meet the People’s needs.
It was no secret that both Madison and Jefferson thought the bank unconstitutional. Madison later wrote essays for the Philadelphia National Gazette to protest its creation. All three were Founders. One wrote the prequel to the Constitution, while the other two actively debated it. All three had very different ‘original’ views.
Hamilton, always an elitist, viewed the government top down. Madison, on the other hand, accurately understood it as bottom up. But both agreed that the Constitution was alive.
In his essays, Madison wrote that the People were the arbiters of sovereign power. It was not limited to those alive at the Constitution’s ratification. In other words, the People’s sovereignty was perpetual.
He said, “public opinion sets bounds to every government, and is the real sovereign in every free one.” He continued, “...power has been traced to public opinion. The stability of all government and security of all rights may be traced to the same source.”
In other words, popular opinion will determine what is “necessary and proper”. What does this mean?
Again, in Madison's words, it is the “people who are the authors of this blessing” and they “must also be its guardians.”
Jefferson, a staunch defender of the People, had his say in 1816.
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.”
Any further doubts about Jefferson can be allayed by his purchase of Louisiana. In 1803, Jefferson purchased the Louisiana territory from the French. Nothing in the Constitution gives the President the power to double the size of the nation. Yet Jefferson decided it was in his purview under his power to make treaties. Any claim to originalist thinking by Jefferson is misleading at best.
Take the time to understand the motives of those who claim the Constitution is not alive. You will find people who do not support American values. You will see people that know their ideas are outdated. You will see people that fear the power of the People. You will see people that don’t want freedom for anyone who doesn’t agree with them. You will see politicians that know their agenda isn’t popular.
The concept of a living Constitution is to benefit the People. Those who deny this are looking to usurp the People’s power. Ask them about the more ambiguous parts. They can’t answer without contradicting themselves.
There are only two choices.
1. The Constitution is designed to be interpreted by the People of the time.
Or…
2. It provides powers and flowery concepts without ways to achieve them.
I hope after nineteen episodes, I have shown the Founders to be more deliberate than that. Not to mention, it would have been impossible for them to prepare for all possibilities.
The Constitution is a living document, and we must treat it that way. We must demand that our government pass laws and amendments in acknowledgement of it. Even if you believe that life only pertains to amendments, we must demand they breathe some life into it.
We stand before a defining moment in our history. Amending the Constitution is the only way to protect the People’s power.
We stood before a similar moment from 1865 to 1870. The thirteenth, fourteenth, and fifteenth amendments finally ended the blight of slavery.
We stood before it in 1913, when the seventeenth gave the People the power to elect their Senators.
We stood before it in 1920, when the nineteenth made women more than second-class citizens.
We stood before it in 1961 with the twenty-third amendment. It finally gave the People of Washington D.C. a voice in the Presidency.
We stood before it in 1964, when the twenty-fourth did away with poll taxes.
We stood before it in 1971 with the twenty-fifth amendment. This ensured those who could die in war were enfranchised to determine who sent them.
These were all the results of popular opinion overruling government decisions against it. The Amendment process is our power to wield. We must demand those we delegate to govern our nation protect the People’s power.
We must replace any who deny it.
Over the past fifty years, Congress has done nothing to protect or enhance the People’s rights.
They have barely governed.
They have allowed corporations to usurp our power. They have allowed foreign actors to interfere with our elections. They have allowed states to disenfranchise the People’s vote. They continue to allow money to control policy.
They have ignored climate change. They have dismissed systemic racism. They have neglected the health, safety, and happiness of all Americans.
These are not representatives Of the People. They are shills for the Corporate Political Agenda.
We must demand that our representatives speak for the People. We must demand ethical and responsible use of our power. We must demand they protect and enhance our rights.
It is our duty to hold them accountable. It is our duty to demand change. It is our duty to remove those who work against the People.
We the People are the Power.