The Constitution is really pretty short, and the prose is old-fashioned, but pretty clear. But people still get confused about it. When I was in college, I remember a roommate ask me if federal income tax was constitutional. Someone had said it wasn’t, in one of his classes. I was amazed. Uh, Sixteenth Amendment? Of course income tax is constitutional. But you’ll still hear the argument that it isn’t.
So, one of Utah’s Senators, Mike Lee, is pretty much always described by his supporters as a ‘constitutional scholar.’ This doesn’t mean what it sounds like: far as I know the man has no peer reviewed publications in the scholarly literature for constitutional law. If I’m wrong, tell me, but I can’t find any. His Dad was Solicitor-General, and Mike clerked for Samuel Alito–I’m not saying he doesn’t have credentials, but I don’t believe ‘constitutional scholar’ is one of them.
No, what that phrase means is that he’s a ‘constitutionalist,’ which is to say, a conservative who believes that the Constitution calls for a small, limited government. He’s a Tea Party Republican, a movement conservative. I don’t know if he aligns with other ultra-conservative groups. Does the Tea Party mean the same thing as constitutionalist, or Eagle Forum, or John Birch Society? As a liberal, I tend to conflate them all together, which probably isn’t fair–I suspect that there are minor differences between all those positions, and that Lee aligns with some of them and does not with others.
Anyway: Constitutionalist. Here’s that position the best I understand it: the Framers, inspired by God, created our constitution, which serves, for some Mormons at least, as almost a fifth book of scripture. What they intended was a small, limited government, with very specific duties and responsibilities enumerated. Any action by the federal government not consistent with those enumerated is, by definition, unconstitutional.
So let’s take those points one at a time. The Framers absolutely did not intend to create a small, limited government. In fact, limiting the size and scope of government wasn’t really part of their deliberations. The Framers had experienced small, limited government. They already had the Articles of Confederation, and hated the weak, ineffectual government that resulted. They had experienced limited government and knew how badly it worked. The real arguments in the Constitutional Convention were about other matters entirely, but all pre-supposed a strong, active, powerful federal government. That’s why the stuff they really argued about had to do with big states vs. small states. Since the government was going to be strong and big and powerful, then how could small population states possibly survive?
One inventive solution was to get rid of states. David Brearley, a delegate from New Jersey proposed getting rid of existing state boundaries entirely. Start over. If all the states were the same size, we wouldn’t have big state/small state squabbles. It may sound nuts to us today, but Brearley offered it as a serious proposal, and it was seriously considered.
Okay, this is high school civics class level stuff, but to reiterate basic history: James Madison went to the Convention with a plan in mind, the Virginia plan, which would have allocated Congressional seats on a population basis. Small states opposed it, and the New Jersey plan gave each state equal representation. With the Convention deadlocked over this issue, Roger Sherman of Connecticut proposed a compromise: a bi-cameral legislature with different representation in each. The point was, this wasn’t a debate about the size and scope of government. It was about checks and balances. Since government was going to be big and powerful, how do we prevent any one faction or branch from dominating?
This is important enough to reiterate: the central Constitutional doctrine is NOT limited government, it’s separation of powers. The single biggest underlying principle of the entire Constitution was not to limit the power of government, it was to diffuse it.
Were there no limited government spokespeople at the Convention? Not many, no. The most famous and vocal ‘limited government’ guy in America in 1787 was probably Patrick Henry. He was invited to the Convention, and refused to go, saying “I smell a rat.” When he finally read the Constitution, he detested it, and fought ratification. Small government delegates did however join the Constitutional deliberations, including a highly respected figure like George Mason, who fought it to the end and refused to sign it. Elbridge Gerry, Luther Martin, John Francis Mercer, John Lansing–all were strong advocates for a small government; all attended the Convention, and all refused to sign the document it created.
That’s why the Bill of Rights was so central to the ratification debate. Remember, nobody had ever done this before. This constitution thing–this was a genuine innovation. That’s why Nathaniel Gorham, of Massachusetts, was taken seriously when he proposed that we Americans adopt a king. (Gorham even had a candidate for the job: Prince Henry of Prussia). A monarchy seemed . . . safer. It’s what everyone else had.
So it’s hardly surprising that the Constitution scared some people when they read it. It was a big, powerful central government we were creating there; could it really do the job? The promise of a Bill of Rights assuaged fears at a time when ratification genuinely seemed like a long-shot. Obviously, the Bill of Rights is a deeply treasured constitutional innovation. But it was necessary precisely because this new government the Constitution created was, by late 18th century standards, scary big.
It still is. It’s still supposed to be.
We don’t know who came up with the language of the Constitution. It was a time when the ability to write well was a prized gentlemanly accomplishment. But the Preamble is gorgeous:
We, the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.
A few points: first, the Framers never intended this document to shackle coming generations. There’s not word in the Constitution about ‘building freeways,’ or ‘creating the internet,’ or ‘providing universal healthcare,’ but the constitution was always intended to be flexible enough to provide a framework for future innovations and inventions. It’s a wonderfully expansive document, with provisions for amendment. I love the fact that, during the Convention, Georgia, which had the smallest population of all the states, consistently voted with the big states. Why? Pure optimism. ‘Yeah, we’re small now, but you just watch. . . ‘
The Framers also knew they hadn’t created a perfect document. At the end of the Convention, when Benjamin Franklin was asked to give a celebratory final address, the best he could do was say, ‘hey, this is probably the best we could do.’ And in retrospect, the Constitution’s pro-slavery provisions doomed our nation to an eventual Civil War. The Second Amendment asserted its grim prerogatives, and 600,000 kids died way too young. But other amendments followed: the Thirteenth, Fourteenth, Fifteenth. Our shameful legacy of slavery and racism persists, but we have also seen progress.
But it’s not like the Framers were themselves perfect. They were hardly a diverse group; all of them rich, white men, from privileged backgrounds. They had their eccentricities. Gouverneur Morris lost a leg as a young man, but that didn’t prevent him from a life of lechery and casual adultery–he even tried to seduce Dolley Madison! Thomas Mifflin was a drunk, William Blount was a crook, and Hugh Williamson believed in space aliens. Two of them died in duels; others died in debtor’s prison.
And they were slave owners, not all, but most of them.
So let’s not sugar-coat ’em. A buncha smart, rich, white guys created a remarkable document. They created a large, powerful, rich, vibrant government. But when you hear Constitutionalists say things like ‘Obamacare is unconstitutional,’ well, no, it’s not. Let’s state things accurately: Obamacare’s thought to be unconstitutional by a tiny minority of very conservative scholars. Conservatives understand the Constitution differently than liberals do. That doesn’t mean ‘conservatives believe in following the constitution, while liberals want to trash it.’ That’s insulting and silly. Worse, it’s not true. Conservatives and liberals just disagree.