Constitutions need maintenance


As someone who views constitutional government as a basic institution of freedom, and constitutions as wielding near-divine authority, I retain what to some might be a surprising or even cavalier openness to constitutional amendment. Quite a few provisions in our state and federal constitutions should be changed or at least clarified, in my view.

Thus the “near-divine authority” I ascribe to constitutions stems from the need for clear set of rules constraining governmental power that span generations and political fashions. It doesn’t assume that any particular constitution predates human beings, or sprang from the head of Zeus fully formed and ready for battle, as did the wise and resolute Athena. Constitutions are human creations. Thus they are imperfect ones.

The most famous, and blatant, miscalculation in the federal constitution is evident from the interaction of the initial articles and the subsequent Bill of Rights. During the ratification debates, anti-Federalists argued that the constitution gave the Feds the potential to tyrannize individuals. They argued that, as some states had already done, the United States should adopt a formal Bill of Rights to protect key freedoms.

Most Federalists thought the Anti-Federalists were overreacting (or that the Anti-Federalists were correct but that expansive federal power was a good thing). Their argument in public, however, was that specifying a Bill of Rights was itself dangerous to individual liberties by suggesting wrongly that the constitution granted federal officials the power to infringe on those liberties. They pointed out that the initial articles set up a system of enumerated powers – if a power was not specifically listed, it was not granted.

For example, they argued, why is there a need to enshrine the right to free speech in the federal constitution? There is no power granted earlier in the document to regulate speech, so a free-speech amendment would be superfluous or worse. Since Americans enjoyed not a few specific rights but hundreds of specific rights, protected through the common law and general understanding, the result of a Bill of Rights could be less rather than more freedom, the Federalists suggested.

The Anti-Federalists were not to be dissuaded, however, so the result was a compromise. The first eight amendments were put forward with two additional ones: the 9th Amendment, which clarified that listing a right in the constitution should not be understood as suggesting that other non-listed rights had no legal force; and the 10th Amendment, which clarified that all powers not specifically enumerated belonged to state governments or the people as individuals.

It is here that liberty-loving commentators often observe how wise and ingenious this deal was. But it clearly failed! We now have a system in which politicians, judges, activists, and many average Americans believe that unless a right is specifically protected in the constitution, it doesn’t exist and government can do whatever a majority of voters wants it to do in that area.

Short of some kind of revolution in judicial interpretation, the fix for this problem is to amend the constitution to clarify the original, restrictive meaning of these amendments. There are other constitutional confusions worth straightening out through amendment, as well.

For example, I have long favored an amendment to the federal constitution to require balanced operating budgets, much as most state constitutions already require, as well as clearly structured capital budgets for which the limited issuance of federal debt will be permitted. I also favor clarifying the “interstate commerce” clause to ensure that Congress cannot claim a general power to regulate intrastate commerce, as well. North Carolina’s constitution would benefit from some additional provisions, too, such as one outlawing eminent-domain abuse and another clarifying that any civil right to education created by the state constitution is afforded directly to students and their families, not to school systems or other bodies purporting to act on the families’ behalf.

I like the image of written constitutions as legal Athenas, helmed and grasping stout spears. But to prevail in the battle against government encroachment, they need ongoing help: new arms, new armor, and constant battle training.

John Hood is chairman of the John Locke Foundation. Follow him @JohnHoodNC.

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